HomeMy WebLinkAboutOCTOBER 27, 2009 AGENDA
CITY OF VIRGINIA BEACH
"COMMUNITY FOR A LIFETIME"
OTY COUNOL
MAYOR WIlliAM D. SESSOMS. JR.. At-Large
VICE MA YOR LOUIS R. JONES. Bayside - District 4
GLENN R. DA VIS. Rose Hall - District 3
WIlliAM R. DeSTEPH, At-Large
HARRY E. DIEZEL. Kempsville - District 2
ROBERT M DYER. Centerville - 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. REM/AS
CITY CLERK - RUTH HODGES FRASER, MMC
CITY COUNCIL AGENDA
27 October 2009
I.
CITY COUNCIL BRIEFINGS:
- Conference Room -
A. MINORITY BUSINESS COUNCIL ANNUAL REPORT
Delceno Miles, Chair
B. CHINESE DRYWALL:
Assessment of Structures
J erald Banagan, Real Estate Assessor
II. CITY MANAGER'S BRIEFINGS:
A. INTERIM FINANCIAL STATEMENT
Patricia Phillips, Finance Director
B. RECOVERY ZONE BONDS
Patricia Phillips, Finance Director
III. CITY COUNCIL COMMENTS
IV. CITY COUNCIL AGENDA REVIEW
V. INFORMAL SESSION
- Conference Room -
A. CALL TO ORDER - Mayor William D. Sessoms, Jr.
B. ROLL CALL OF CITY COUNCIL
C. RECESS TO CLOSED SESSION
ill I
CITY HALL BUILDING
240I COURTHOUSE DRIVE
VIRGINIA BEACH, VIRGINIA 23456-8005
PHONE:(757) 385-4303
FAX (757) 385-5669
E-MAIL: Ctycncl@vbgov.com
3:00 PM
4:30 PM
VI. FORMAL SESSION AGENDA
- City Council Chamber -
6:00 PM
A. CALL TO ORDER - Mayor William D. Sessoms, Jr.
B.
INVOCATION:
Reverend Seigi Moto, Pastor
The Spirit of Jesus Church of Virginia
C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA
D. ELECTRONIC ROLL CALL OF CITY COUNCIL
E. CERTIIICATION OF CLOSED SESSION
F. MINUTJB:S
1. INFORMAL and FORMAL SESSIONS
October 13,2009
G. FORMAL SESSION AGENDA
H. PUBLIC HEARING
1. LEASE OF CITY OWNED PROPERTY - Farmer's Market
Seasons Best Bakery, LLc - space 37
I. PUBLIC COMMENT PERIOD
1. PEMBROKE STRATEGIC GROWTH AREA 4 IMPLEMENTATION PLAN
J. CONSENT AGENDA
K. ORDINANCES/RESOLUTIONS
1. Ordinances to AMEND Chapter 2 of the City Code to comply with the Virginia State Code:
a. 9 2-17 Smoking in public meetings
b. 92-21 re notice of Special meetings
c. 92-39 re voting at Special meetings
d. 92-60 re City Clerk's duties
e. ~2 -451 re definition of Boards and Commissions
f. ~2-475 re notification of audits
III I
2. Ordinance to AUTHORIZE an employment contract with the City Manager
3. Ordinances re COMPENSATION:
a. City Manager
b. City Attorney
c. City Clerk
d. City Real Estate Assessor
e. City Auditor
4. Resolution to SUPPLEMENT the 2010 Community Legislative Agenda to propose
conversion of the Clerk of Circuit Court's Office to a City agency
5. Resolution to DIRECT the City Manager and City Attorney to investigate capturing fee
revenue generated by the Clerk of Circuit Court
6. Resolution to PROVIDE for issue and sale of$130,000,000 in General Obligation Public
Improvement Refunding Bonds
7. Ordinance to AUTHORIZE a 3-Year Lease with Seasons Best Bakery, LLC for Space #37
at Farmer's Market
8. Ordinance to AUTHORIZE a right-in-onlv access point at Princess Anne Road and South
Independence Boulevard for Tailwind Development
9. Ordinance to APPROPRIATE $1,067,000 to Parks and Recreation re school landscaping
L. PLANNING
1. Application of McRJERS, LLC, for closure ofa portion of Jefferson Boulevard at Jefferson
Boulevard and Windsor Crescent and a portion of Windsor Crescent north of Jefferson
Boulevard.
DISTRICT 4 - BA YSIDE
RECOMMENDATION
APPROVAL
2. Variance to ~4.4(b) ofthe Subdivision Ordinance that requires all newly created lots meet the
requirements of the City Zoning Ordinance (CZO) for COASTAL LIVING BUILDERS,
L.L.C./WILLIAM T. KILEY and HELEN R. PAXTON to subdivide four (4) lots for the
development of two single-family dwellings at 800 Greensboro Avenue.
DISTRICT 6 - BEACH DISTRICT
DEFERRED
STAFF RECOMMENDATION
PLANNING COMMISSION RECOMMENDATION
September 22, 2009
APPROVAL
NO RECOMMENDATION DUE
TO A TIE VOTE
3. Varzance to S4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the
requirements of the City Zoning Ordinance (CZO) for WILBERT H. LAWRENCE, SR., to
subC.ivide 1564 Back Bay Landing Road.
DISTRICT 7 - PRINCESS ANNE
RECOMMENDATION
DENIAL
4. App:lication of BARRY BEHRMAN / ARROWHEAD PLAZA, LLC, Modification of
Conditions (approved by City Council on April 27, 1993, January 26, 1999 and March 27,
2001) for expansion of an existing recreation facility.
DISTRICT 2 - KEMPSVILLE
RECOMMENDATION
APPROVAL
5. Application of5105 PRINCESS ANNE, LLC / FULTON BANK, (ABOUNDING
GRACE ASSEMBLY) re a church at 5102 Princess Anne Road.
DISTRICT 2 - KEMPSVILLE
a. Change of Zoning District Classification from B-2 Community Business District and I-I
Light Industrial District to Conditional B-2 Community Business District
b. Conditional Use Permit for religious use
RECOMMENDATION
APPROVAL
6. Application of NEW FIRST COLONIAL ASSOCIATES for a Chan!!e ofZonin!! District
Classification from R-15 Residential District to Conditional 0-1 Office District re a dental
office at 5315 Bonneydale Road.
DISTRICT 2 - KEMPSVILLE
RECOMMENDATION
APPROVAL
7. Appl::cation of JESSUP CONSTRUCTION L.L.C. / JOHN P. MYERS for a Change of
Zoning District Classification from R-40 Residential District to Conditional R-20
Residential District in order to create four (4) lots from two (2) existing lots at 1125 and 1129
Trantwood Avenue.
DISTRICT 5 - L YNNHA VEN DISTRICT
RECOMMENDATION
APPROVAL
8. Application of CITY OF VIRGINIA BEACH to AMEND ~201 of the City Zoning
Ordir,ance (CZO) re Setbacks for Piers.
RECOMMENDATION
APPROVAL
M. UNFINISHED BUSINESS
N. NEW BUSINESS
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O. ADJOURNMENT
NOVEMBER 3RD CITY COUNCIL
WORKSHOP CANCELLED TO
ALLOW EVERYONE TO VOTE
Thursday, November 12th
ANNUAL JOINT MEETING
General Assembly, City Council
and School Board
City Council Sessions
November 10 - Informal and Formal Session
November 17 and 24 - Workshops
December 1 and 8 - Informal and Formal Sessions
Town Hall Meetings - 2010-11 Municipal Budget
Wednesday, October 28, Larkspur Middle School, 4696 Princess Anne Road
Thursday, November 5, Princess Anne High School, 4400 Virginia Beach Blvd.
Wednesday, November 18, Green Run High School, 1700 Dahlia Drive
Thursday, December 3, Kellam High School, 2323 Holland Road
********
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 1O/27/09st
www.vblrov.com
III
I.
CITY COUNCIL BRIEFINGS:
- Conference Room -
3:00 PM
A. MINORITY BUSINESS COUNCIL ANNUAL REPORT
Delceno Miles, Chair
B. CHINESE DRYWALL:
Assessment of Structures
J erald Banagan, Real Estate Assessor
II. CITY MANAGER'S BRIEFINGS:
A. INTERIM FINANCIAL STATEMENT
Patricia Phillips, Finance Director
B. RECOVERY ZONE BONDS
Patricia Phillips, Finance Director
III. CITY COUNCIL COMMENTS
IV. CITY COUNCIL AGENDA REVIEW
V. INFORMAL SESSION - Conference Room-
A. CALL TO ORDER - Mayor William D. Sessoms, Jr.
4:30 PM
B. ROLL CALL OF CITY COUNCIL
C. RECESS TO CLOSED SESSION
I I
I... IMI
VI. FORMAL SESSION AGENDA
- City Council Chamber -
6:00 PM
A. CALL TO ORDER - Mayor William D. Sessoms, Jr.
B.
INVOCATION:
Reverend Seigi Moto, Pastor
The Spirit of Jesus Church of Virginia
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
October 13, 2009
G. FORMAL SESSION AGENDA
I 1
,.-,+-111101-
.tsnlutinu
CERTIFICATION OF CLOSED SESSION
VIRGINIA BEACH CITY COUNCIL
WHEREAS: The Virginia Beach Gity 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.
I II
III
H. PUBLIC HEARING
1. LEASE OF CITY OWNED PROPERTY - Farmer's Market
Seasons Best Bakery, LLc - space 37
I. PUBLIC COMMENT PERIOD
1. PEMBROKE STRATEGIC GROWTH AREA 4 IMPLEMENTATION PLAN
I II
Ad I D t?g_S,~.~,?~~__~_~__:~_._,~". ..
Date EQ~1,~~?Q9_~..,..__~__..,.j
NOTICE OF PUBLIC HEARING
LEASE OF CITY PROPERTY
The Virginia Beach City Council will hold a
PUBLIC HEARING on the proposed leasing
of City-owned property for the following
parcel on Tuesday, October 27, 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 # 37: Seasons Best Bakery, LLC
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.
Ruth Hodges Fraser, MMC
City Clerk
Beacon Oct. 18, 2009
20699266
Ad shown is not actual print size
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J.
CONSENT AGENDA
K.
ORDINANCES/RESOLUTIONS
1. Ordinances to AMEND Chapter 2 of the City Code to comply with the Virginia State Code:
a. ~ 2-17 Smoking in public meetings
b. ~2-21 re notice of Special meetings
c. ~2-39 re voting at Special meetings
d. ~2-60 re City Clerk's duties
e. ~2-451 re definition of Boards and Commissions
f. ~2-475 re notification of audits
2. Ordinance to AUTHORIZE an employment contract with the City Manager
3. Ordinances re COMPENSATION:
a. City Manager
b. City Attorney
c. City Clerk
d. City Real Estate Assessor
e. City Auditor
4. Resolution to SUPPLEMENT the 2010 Community Legislative Agenda to propose
conversion of the Clerk of Circuit Court's Office to a City agency
5. Resolution to DIRECT the City Manager and City Attorney to investigate capturing fee
revenue generated by the Clerk of Circuit Court
6. Resolution to PROVIDE for issue and sale of $130,000,000 in General Obligation Public
Improvement Refunding Bonds
7. Ordinance to AUTHORIZE a 3-Year Lease with Seasons Best Bakery, LLC for Space #37
at Farmer's Market
8. Ordinance to AUTHORIZE a right-in-only access point at Princess Anne Road and South
Independence Boulevard for Tailwind Development
9. Ordinance to APPROPRIATE $1,067,000 to Parks and Recreation re school landscaping
1 II!
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CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: Three Ordinances to Amend Chapter 2 of the City Code
MEETING DATE: October 27, 2009
. Background: Periodic review of the City Code has prompted these ordinances
to amend Chapter 2 of the City Code. Specifically, the proposed ordinances will do the
following:
. Update the language in Section 2-21 regarding the notice required for
special meetings;
. Remove language in Section 2-17 to make it consistent with Section 28.5-3
regarding smoking in rooms in which a public meeting is held;
. Repeal Sections 2-39 and 2-60 because the corresponding portions of the
state code have been repealed;
. Amend Section 2-475 to clarify the meaning of the code's language; and
. Update the listed Boards, Commissions and Committees in Section 2-451.
. Considerations: Adopting these ordinances will update the City Code as
detailed above.
. Public Information: Public Information will be provided through normal Council
Agenda Process.
. Attachments: 3 Ordinances
Recommended Action: Approval
Submitting Department/Agency: City Attorney 1\.A....A...~')~
City Manager: 12..U- 1. ~~ fl.
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1-1Ilol..,1
1 AN ORDINANCE TO AMEND SECTION 2-17 OF THE
2 CITY CODE PERTAINING TO GENERAL POWERS
3 AND DUTIES OF THE MAYOR, AMEND SECTION 2-
4 475 PERTAINING TO NOTIFICATION OF AUDITS
5 AND AUDIT RELATED ISSUES, AND REPEAL
6 SECTIONS 2-39 AND 2-60 OF THE CITY CODE
7
8 SECTION AMENDED: SS 2-17 and 2-475
9 SECTIONS REPEALED: SS 2-39 and 2-60
10
11 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,
12 VIRGINIA:
13
14 That Sections 2-17, 2-39, 2-60, 2-475 of the Code of the City of Virginia Beach,
15 Virginia are hereby amended and reordained to read as follows:
16
17
18 Sec. 2-17. General powers and duties of mayor.
19
20 The mayor shall preside over the meetings of the council, with the same powers
21 and duties as the other members, with a vote, but no veto power. He shall be the
22 ceremonial head of the city and shall perform such other duties not inconsistent with his
23 office as may be imposed by the council. He shall call the meetings and he shall have
24 general direction of the chamber in which the council meets. In case of disturbance or
25 disorderly conduct, the mayor shall have the chamber cleared. He may, in his
26 discretion, permit smoking in the chamber.
27
28
29 COMMENT
30
31 The smoking provision of Sec. 2-17 conflicts with Sec. 28.5-3. Sec. 28.5-3 prohibits smoking
32 in rooms in which a public meeting or hearing is being held.
33
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35 Sese 2 39. Reconsidering or rescinding vote at special meeting. Reserved.
36
37 No vote shall be reconsidered or rescinded at any special meeting of the
38 council, unless at such meeting there be present as large a number of members as
39 'J.!ere present when such vote was taken.
40
41
42 COMMENT
43
44 The state enabling statute for this City Code section has been repealed. Also, Virginia Code
45 ~ 15.2-1427(A) provides, "[u]nless otherwise specifically provided for by the Constitution or by
46 other general or special law, an ordinance may be adopted by majority vote of those present and
47 voting at any lawful meeting." Implicitly, this state code section forbids treating a vote at a special
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meeting differelltly than any other lawful meeting with respect to reconsidering or rescinding
previous Council actions.
Sec. 2 &0. Pre:paration of records f-or microfilming Reserved.
The clerk of council is hereby authorized to properly prepare the records,
including minutes of the Virginia Beach City Council, and do all things necessary to
implement the processing and microfilming of said records in accordance '.\'ith the
provisions of section 42.1 83 of the Code of Virginia, 1950, as amended.
COMMENT
The City Code requires that the City Clerk record and index Council minutes (City Code ~
2-56). The requirement of microfilming came from state law (Va. Code ~ 42.1-83). This state
requirement was repealed in 2006. Repealing this section does not impact the Clerk's other duties,
including the dut;y to keep records of proceedings and furnish transcripts of minutes.
Sec. 2-475. I=ederal, state and other grants. Notification of audits and audit
related issues.,
City management shall notify the city auditor of any scheduled external audits as
soon as it is made aware of an upcomina audit. City manaaement shall also notify the
city auditor of any audit- ,related issues pertainina to Of violations of federal, state or
local laws and regulations pertaining to involvina City funds. grants. or resources.
COMMENT
This amellldment updates the section's title and provides a corresponding clarification of the
section's languag(:.
of
Adopted by the Council of the City of Virginia Beach, Virginia, on the
_, 2009.
day
APPROVED AS TO LEGAL SUFFICIENCY:
~ /h--/ '
Ity AttB'~ey's Office
CA11245
R-3
August 27, 200EI
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AN ORDINANCE TO AMEND SECTION 2-21 OF THE
CITY CODE PERTAINING TO NOTICE OF SPECIAL
MEETINGS
SECTION AMENDED: 92-21
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,
VIRGINIA:
That Section 2-21 of the Code of the City of Virginia Beach, Virginia is hereby
amended and reordained to read as follows:
Sec. 2-21. Call and notice of special meetings.
The mayor, any three (3) members of the councilor the city manager may call
special meetings of the council at any time upon notice to each member personally
notified at his usual place of business or residence. Such a special moeting may be held
3t any time without notice provided that members of the council attend the meeting
Notice. reasonable under the circumstances. of special or emeroency meetino shall be
oiven contemporaneously with the notice provided to the mayor. members of the council
or the city manaoer conductino the meetino.
COMMENT
The amendments to Sec. 2-21 bring this section in line with the notice provisions of the
Virginia Freedom ofInformation Act ~ 2.2-3707(D).
Adopted by the Council of the City of Virginia Beach, Virginia, on the
,2009.
day
of
APPROVED AS TO LEGAL SUFFICIENCY:
y(,?/~~ -J~
City ~orney's Office
CA11244
R-2
August 4, 2009
1- '<f
1 AN ORDINANCE TO AMEND SECTION 2-451 OF
2 THE CITY CODE PERTAINING TO DEFINITION OF
3 BOARDS, COMMISSIONS AND COMMITTEES
4
5 SECTION AMENDED: 9 2-451
6
7 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,
8 VIRGINIA:
9
10 That Section 2-451 of the Code of the City of Virginia Beach, Virginia is hereby
11 added and ordained to read as follows:
12
13 Sec. 2-451. Dl:!finition of boards, commissions and committees.
14
15 Boards shall be defined as those advisory G Council-appointive agencies which
16 are prescribed by the Virginia State Code as "boards," as well as locally established
17 bodies, the duty of which pertains to or is governed by federal and state codes or local
18 ordinances. Terms shall be specified and limited in accordance with the applicable
19 federal or state codes or local ordinances or resolutions. Those currently established
20 are as follows:
21
22 Board of aBuilding GCode aAppeals
23 Board of ~oning aAppeals
24 Chesapeake Bay Preservation Area Board
25 Community corrections resource board
26 Community sServices aBoard
27 Community Policy and Management Team - CSA At-Risk Youth and Families
28 Development aAuthority
29 Director of the Office of Volunteer Resources
30 Eastern Virginia Medical School
31 Francis Land House Board of Governors
32 Hampton Roads Economic Development Alliance
33 Health Services Advisory Board
34 Historical fReview aBoard
35 Medical Collego of Hampton Roads
36 Minority Business Council
37 North Landing Scenic River Advisory Board
38 Pendleton Project Management Board
39 Personnf:!1 aBoard
40 The pPlanning GCouncil
41 Public lbibrary aBoard
42 SchoolbeafG
43 Senior SI~rvices of Southeastern Virginia
44 Social s~~ervice~ aBoard
45 Southeastern pPublic sService aAuthority (SPSA)
46 Southeastern Tidewater Opportunity Project, Inc. (STOP)
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47 Southeastern Virginia I'.reawide Model Program
48 Sports Authority of Hampton RO::lds, Virginia
49 Task force for youthful subst::lnce abuse
50 Tidewater Community College Board
51 Tidewater Detention Board
52 T owina Advisory Board
53 Virginia Beach Community Development Corporation
54 Wetlands bBoard-:-
55 Workforce Housina Advisory Board
56
57 Commissions shall be defined as those advisory s Council-appointive agencies
58 which are prescribed by the Virginia State Code as "commissions," plus those locally
59 established for a specific purpose with budgetary responsibility and a structured
60 organization with an annual report to city council. Terms shall be specified and limited in
61 accordance with applicable state statutes or city ordinances or resolutions. Those
62 currently established are as follows:
63
64 Aaricultural Advisory Commission
65 Arts and ~Humanities sCommission
66 Beaches and Waterways Commission
67 Community Medical Advisory Commission
68 Constitution celebration commission
69 Hampton Roads Air Pollution Control District Commission
70 Hampton Roads Plannina District Commission - HRPDC
71 Historic Preservation Commission
72 Human Riahts Commission
73 Military liaison commission
74 Parks and fRecreation sCommission
75 Planning sCommission
76 Resort afea aAdvisory sCommission
77 Southeastern Virginia Planning District Commission
78 Tidewater Transportation District Commission
79 Tidewater Youth Services Commission
80 Tr::lnsport::ltion s::lfoty commission.
81
82 Committees shall be defined as those short-term advisory agencies appointed
83 by s City s Council for specific studies with regular reporting periods to the governing
84 body and which shall be automatically abolished when their mission is accomplished
85 and the final report filed with the s City s Clerk for distribution to s City s Council. Those
86 currently established are as follows:
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88 Advertising Advisory s8election sCommittee
89 Audit Committee
90 Bavfront Advisory Committee
91 Bikewavs and Trails Advisory Committee
92 Bond referendum committee
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Citizem; advisory committee (C3C)
Emplovee Benefits Review Task Force
Military Economic Development Advisory Committee
Oceanal Land Use Conformity Committee
Open Space Advisory Committee
Review and Allocation Committee
T'Jlenty fifth anniversory celebration committee.
COMMENT
The amendment to this section is a house-keeping matter. The ordinance was previously
updated in 2003.
of
Adopted by the Council of the City of Virginia Beach, Virginia, on the
,2009.
day
APPROVED AS TO CONTENT
APPROVED AS TO LEGAL SUFFICIENCY:
~~
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CA11246
R-5
October 8, 2009
I Iii!
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM:
An Ordinance Approving an Employment Contract for the City Manager
MEETING DATE: October 27,2009
. Background: City Charter 9 4.01 provides that City Council shall appoint a City
Manager to be the executive and administrative head of the City. The City's practice is
to enter into a written agreement to set forth the terms and conditions of the City
Manager's employment. The City's original agreement with the current City Manager,
James K. Spore, began on November 25, 1991, and was renewed by City Council in
1996,2001, and 2007. The current contract expires on November 30,2009.
. Considerations: This ordinance approves an employment agreement between
the City Manager and the City for two years, beginning on December 1, 2009, and
ending on November 30, 2011. His compensation is not being increased, but the
contract has been amended to reflect his current compensation, which was established
by City Council in an ordinance adopted on September 2,2008.
. Public Information: This item will be advertised in the same manner as all other
agenda items.
. Attachments: Ordinance, Redlined Employment Agreement
Requested by City Council
1 AN ORDINANCE APPROVING AN EMPLOYMENT
2 CONTRACT FOR THE CITY MANAGER
3
4 WHEREAS, the most recent contract between the City and the City Manager
5 regarding his employment will expire on November 30,2009; and
6
7 WHEREAS, the parties desire to renew that contract, with certain amendments,
8 to November 2,0,2011.
9
10 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
11 VIRGINIA BEACH VIRGINIA:
12
13 That thH employment contract between the City of Virginia Beach and the City
14 Manager, for the term of December 1, 2009 to November 30, 2011, attached hereto, is
15 approved, and the Mayor is authorized to execute the contract on behalf of the City.
Adoptee! by the Council of the City of Virginia Beach, Virginia on the
day of , 2009.
APPROVED AS TO LEGAL
SUFFICIENCY:
;;F~' !5
City Attorney's Office
~
CA11307 October14,2009 R-1
I I
11'1
EMPLOYMENT AGREEMENT
This Agreement is entered into this day of , ~2009 by
and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, hereinafter
referred to as "City" and JAMES K. SPORE, hereinafter referred to as "Employee."
WITNESSETH
WHEREAS, by agreement dated November 12, 1991, the City of Virginia Beach
employed James K. Spore as its City Manager for a term commencing November 25, 1991, and
ending November 30, 1996;
WHEREAS, by further agreement dated November 12, 1996, the City of Virginia Beach
continued the employment of James K. Spore as its City Manager for a term commencing
November 25, 1996 and ending November 30,2001;
WHEREAS, by further agreement dated August 28, 2001, the City of Virginia Beach
continued the employment of James K. Spore as its City Manager for a term commencing
December 1,2001 and ending November 30,2006;
WHEREAS. by further agreement dated June 27. 2007. the City of Virginia Beach
continued the employment of James K. Spore as its City Manager for a term commencing on
December L 2006 and ending November 30.2009:
WHEREAS, the City wishes to continue the employment of James K. Spore as its City
Manager;
WHEREAS, James K. Spore agrees to accept such continued employment; and
WHEREAS, the parties hereto desire to set forth herein the terms and conditions of such
continued employment.
NOW, THEREFORE, for and in consideration of the mutual covenants and obligations
set forth herein and other good and valuable consideration, the parties hereto agree as follows:
Article I - DutJtes
(a) Employee shall perform the functions and duties of the position of City Manager
in accordance with the provisions of the Charter of the City of Virginia Beach and all other
applicable statutes and ordinances.
(b) Employee shall perform such functions and duties in accordance with the policy
and direction of the City Council.
(c) Employee shall also perform any other legally permissible duties or functions as
the City Council may deem appropriate to assign him at any time during the term hereof.
Article II - Term of Ae:reement
(a) Except as otherwise provided herein, this Agreement shall commence December
1, ~2009, and end November 30, ~2011.
(b) Except as provided by Article III, below, during the term hereof, Employee agrees
to remain in the exclusive employ of the City.
(c) Nothing herein shall be deemed to limit in any way the authority of City Council
to terminate the Employee at any time; provided, however that such termination shall be in
accordance with the provisions of Article III, below.
(d) Nothing herein shall be deemed to limit the right of Employee to voluntarily
resign; provided, however, that such resignation shall be in accordance with Article III, below.
Article III - Termination and Resie:nation: Severance Pay
I I
1111
(a) In the event the Employee is terminated by the City before the expiration of the
term ofthis Agreement, he shall receive as severance pay an amount equal to twelve (12) months
of his base salary. All other benefits hereunder shall cease as of the date of termination.
However, if Employee is terminated for misfeasance, malfeasance, or nonfeasance in office, all
compensation by the City shall end as of the date of termination
(b) If Employee voluntarily resigns, then all compensation and benefits shall cease as
of the effective date of such resignation. Employee shall give the City ninety (90) days written
notice of any such resignation; provided, however, it is expressly understood that City Council
may, in its sole discretion waive any or all of this ninety (90) day notice requirement.
(c) In the event the City, at any time during the employment of Employee, reduces
the salary or other fringe benefits of Employee by a percentage greater than the percentage of
any across-the-board reduction for all City employees, or refuses to comply with any other
provisions of the Agreement benefiting Employee, or in the event Employee resigns following
the request of a majority of the members of City Council that he resign; then Employee may, at
his option, be deemed to have been "terminated", and shall receive severance pay in accordance
with Article II ofthis Agreement.
Article IV - ComDensation
This Agreement reflects the salary and benefits for Employee that were established by
City Council in Ordinance #- 2955N 3049F, adopted on June 27, 2006 September 2.2008. This
Agreement contemplates that the salary and benefits set forth herein may be adjusted by City
Council annually, by ordinance.
City Council agrees to pay Employee for services rendered pursuant hereto an annual
I gross salary of Two Hundred SeT/en Nineteen Thousand ffie-Seven Hundred Seventy
FoofFifteen Dollars and Eight-Seven Cents ($207,574.08219,715.07), payable in installments at
the same time and in the same manner as other City employees are paid. Such annual gross
salary will be increased annually by ordinance in an amount no less than the average increase for
all other City t~mployees for the corresponding fiscal year unless Employee has received an
unsatisfactory performance evaluation.
In addition to the salary described above, the City agrees to contribute Twenty Thousand
Five Hundred Dollars ($20,00G500) per year as deferred compensation, for the benefit of
Employee, to the International City Management Retirement Corporation. This amount may be
adjusted by City Council annually, by ordinance.
Article V - Automobile Allowance
In lieu of supplying a City-owned vehicle for use by Employee in conducting City
business, City agrees to pay Employee a car allowance as additional salary in the sum of One
Thousand Dollars (1000.00) per month and in addition, Employee shall be reimbursed for
business mileage at the same rate at which other City employees are reimbursed. Said sum for
car allowance may be increased from time to time by action of the City Council. In
consideration tht:reof, Employee shall provide his own vehicle and shall be solely responsible for
all fuel, maintenance, insurance, and other expenses related thereto. This allowance amount may
be adjusted by City Council annually, by ordinance.
Article VI - Frb12e Benefits
(a) In addition to the Compensation set forth in Article IV and the Automobile
Allowance set forth in Article V, the City agrees to provide the same hospitalization and medical
insurance coverage available to all City employees and to pay, on behalf of Employee, the total
I I
1111
premium for family hospitalization and medical insurance, including vision and dental coverage
as provided all other City employees.
(b) Employee shall receive fringe benefits such as annual leave, sick leave, life
insurance, hospitalization, Virginia Retirement System, etc. in accordance with existing City
policies and ordinance as applicable to all other City employees. Nothing herein shall be
constructed to prevent changes in the nature of such benefits to Employee should such benefits
be subsequently altered for all other City employees.
(c) The City will pay up to Two Thousand Six Hundred Eighty Four ($2,684)
annually on behalf of the City Manager in premiums for long term care insurance. This amount
may be adjusted by City Council annually, by ordinance.
Article VII - Hours of Emplovment
It is recognized that the nature of Employee's position requires flexible hours. Therefore,
Employee in consideration of his compensation shall work whatever hours are necessary to
satisfactorily perform the functions and duties of City Manager.
Article VIII - Dues and Subscriptions
City agrees to pay professional dues and subscriptions of Employee necessary for its
membership and participation in national, regional, state, and local associations and
organizations of a job-related nature and for travel and associated expenses of Employer to
secure his attendance at professional meetings and conferences, as budgeted and approved by the
City Council.
Article IX - General Business Related Expenses
Except as specifically provided in Articles V and VIII, the City agrees to reimburse
Employee for job-related expenditures in accordance with existing City policy.
Article X - Other Terms and Conditions of Employment
(a) The City agrees to evaluate the performance of Employee at least once each year.
All aspects of such evaluation shall be treated confidentially by the City and Employee subject to
the provisions of the Freedom of Information Act.
(b) The City Council may at any time prescribe any other terms and conditions of
employment related to Employee's performance as City Manager as it may deem necessary,
provided such terms and conditions are not inconsistent with the specific provisions of this
Agreement.
(c) City agrees to provide self-insurance coverage and legal counsel for Employee in
matters relating to his official duties within the scope of his employment, as is provided to all
other City employees.
(d) All provisions of state or city law or policy relating to terms and conditions of
municipal employment generally as they now exist or may hereafter be amended shall apply to
Employee; provided however, that should any such law or policy be so changed as to be
inconsistent with the terms hereof, this Agreement shall be deemed amended so as to comply
with such law or policy.
(e) The text herein shall constitute the entire Agreement between the parties and shall
only be amended by a writing executed by both parties.
(f) If any provision hereof shall be deemed unlawful, invalid, ultra vires, or
otherwise unentJrceable, the remainder of the Agreement shall be deemed severable and shall
remain in full force and effect.
(g) This Agreement supersedes any other agreement between the parties.
I I
Hit
IN WITNESS WHEREOF, the City of Virginia Beach has caused this Agreement to be
executed on its behalf by its mayor in accordance with an ordinance of the City Council
authorizing such execution, and Employee, James K. Spore, has executed this Agreement, both
the day and year first above written.
CITY OF VIRGINIA BEACH
BY
Mayor
BY
James K. Spore
I ,
I I11I
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CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEMS:
Ordinances Pertaining to the Compensation of the City Manager, City
Attorney, City Clerk, City Real Estate Assessor, and City Auditor
MEETING DATE: October 27,2009
. Background: City Charter 9 3.05 provides that City Council shall determine, on
an annual basis, the compensation of the City Manager, City Attorney, City Clerk, City
Real Estate Assessor, and City Auditor, all of whom are directly appointed by City
Council.
. Considerations: The ordinances make no changes to the appointees'
compensation.
. Public Information: Public information will be provided through the normal
Council agenda process.
. Attachments: Five ordinances
Requested by City Council
I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
AN ORDINANCE PERTAINING TO THE
COMPENSATION OF THE CITY MANAGER
WHEREAS, City Council has evaluated the performance of the City Manager;
and
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
VIRGINIA BEACH, VIRGINIA:
1. That the annual salary of the City Manager shall remain at $219,715.07.
2. That the City's contribution to the City Manager's deferred compensation
plan shall remain at $20,500 annually.
3.
annually.
That the car allowance of the City Manager shall remain at $12,000
Adopted by the Council of the City of Virginia Beach, Virginia, on the
day of , 2009.
APPROVED AS TO LEGAL
SUFFICIENCY:
?~{r
City Attorney's Office
CA 11305 October 21, 2009 R-2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
I III!
AN ORDINANCE PERTAINING TO THE
COMPENSATION OF THE CITY
A TIORNEY
and
WHEREAS, City Council has evaluated the performance of the City Attorney;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
VIRGINIA BEACH, VIRGINIA:
1. That the salary of the City Attorney shall remain at $185,000.
2. That the City's contribution to the City Attorney's deferred compensation
plan shall remain at $10,000 annually.
3.
annually.
That the car allowance of the City Attorney shall remain at $10,000
Adopted by the Council of the City of Virginia Beach, Virginia, on the
day of ,2009.
APPROVED AS TO LEGAL
SUFFICIENCY:
~~F
City Attorney's Offi
CA11304 October 14,2009 R-1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
AN ORDINANCE PERTAINING TO THE
COMPENSATION OF THE CITY CLERK
WHEREAS, City Council has evaluated the performance of the City Clerk; and
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
VIRGINIA BEACH, VIRGINIA:
1. That the salary of the City Clerk shall remain at $104,075.74.
2. That the car allowance of the City Clerk shall remain at $10,000 annually.
Adopted by the Council of the City of Virginia Beach, Virginia, on the
day of ,2009.
APPROVED AS TO LEGAL
SUFFICIENCY:
?~~
City Attorney's 0 ce
CA11302 October 14, 2009 R-1
I 1,1 I
1 AN ORDINANCE PERTAINING TO THE
2 COMPENSATION OF THE CITY REAL
3 ESTATE ASSESSOR
4
5 WHEREAS, City Council has evaluated the performance of the City Real Estate
6 Assessor; and
7
8 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
9 VIRGINIA BEACH, VIRGINIA:
10
11 1. That the salary of the City Real Estate Assessor shall remain at
12 $120,683.77.
13
14 2. That the City shall continue to contribute $4,000 to the City Real Estate
15 Assessor's deferred compensation plan.
16
17 Adopted by the Council of the City of Virginia Beach, Virginia, on the
18 day of , 2009.
APPROVED AS TO LEGAL
SUFFICIENCY:
R~~
City Attorney's Office
CA 11301 October 21, 2009 R-4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
AN ORDINANCE PERTAINING TO
THE COMPENSATION OF THE CITY
AUDITOR
WHEREAS, City Council has evaluated the performance of the City Auditor; and
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
VIRGINIA BEACH, VIRGINIA:
1. That the salary of the City Auditor shall remain at $96,000.
2. That the car allowance of the City Auditor shall remain at $6,000 annually.
Adopted by the Council of the City of Virginia Beach, Virginia, on the
day of ,2009.
APPROVED AS TO LEGAL
SUFFICIENCY:
/-e~( :?:-
City Attorney's ~
CA 11303 October 14, 2009 R-2
I 1'1 I
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: A Resolution Supplementing the 2010 Community Legislative Agenda By
Adding a Proposal for Legislation Regarding Conversion of the Virginia Beach
Clerk of Circuit Court's Office to a City Agency
MEETING DATE: October 27, 2009
. Background: On September 22, 2009, City Council adopted its 2010
Community Legislative Agenda. Since then, because of state budget cuts, the Clerk of
Circuit Court has been forced to layoff 11 employees, or approximately 20% of its staff.
The Clerk's Office is partially funded by the state and partially by the City. When the
Office takes in fees that exceed the cost of salaries and expenses, the state and the
City share these excess fees. Despite the reduction in state funds, the state made no
corresponding reduction in the percentage of excess fees retained by the state. Virginia
Beach's Circuit Court's case load is the second highest in the state, and the loss of
these employees will adversely affect our courts and the residents they serve.
. Considerations: In Newport News and Richmond, state law provides that the
offices of the clerks of circuit court shall be city agencies. This enables those cities to
be better staff their clerks' offices, because fees that otherwise would be sent to the
state can be retained in the city to pay for those salaries. This resolution would amend
the 2010 Community Legislative Agenda by adding the attached item concerning the
Circuit Court Clerk's Office.
. Public Information: Public information will be provided through the normal
agenda process.
. Attachments: Resolution, Community Legislative Agenda item
Requested by Councilmember Davis
REQUESTED 13Y COUNCILMEMBER DAVIS
1 A RESOLUTION SUPPLEMENTING THE 2007
2 COMMUNITY LEGISLATIVE AGENDA BY
3 ADDING A PROPOSAL FOR LEGISLATION
4 REGARDING CONVERSION OF THE VIRGINIA
5 BEACH CLERK OF CIRCUIT COURT'S OFFICE
6 TO A CITY AGENCY
7
8
9 WHEREAS, on September 22, 2009, the City Council adopted its 2010
10 Community Legislative Agenda and requested that members of the City's local
11 Delegation to the General Assembly sponsor and/or support legislation therein; and
12
13 WHEREAS, state legislation is needed to add the City of Virginia Beach to the list
14 of localities whe!re circuit court clerk's offices are city agencies;
15
16 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
17 VIRGINIA BEACH, VIRGINIA:
18
19 That the City Council hereby amends its 2010 Community Legislative Agenda by
20 adding the attaGhed request for legislation regarding the Virginia Beach Clerk of Circuit
21 Court's Office.
22
23 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA
24 BEACH, VIRGINIA:
25
26 That the City Clerk is hereby directed to transmit a copy of this Resolution and
27 the attachment 10 each member of the City's Delegation to the General Assembly.
28
29 Adopted by the City Council of the City of Virginia Beach, Virginia, this
30 day of ,2009.
31
APPROVED AS TO LEGAL SUFFICIENCY:
~J04~( t--
City Attorney's Office
CA11298
R-1
October 6,2009
1'1 I
18. CONVERSION OF THE VIRGINIA BEACH CLERK OF CIRCUIT COURT'S OFFICE TO A
CITY AGENCY
Councilmember Glenn Davis
Background Information:
The State Code establishes an Office of the Clerk of the Circuit Court in each Virginia city and
county. The Clerk is charged with the custody, safekeeping and proper indexing of legal
documents deposited in her office. For those matters before the City's only court of record, the
Clerk's Office is responsible for the filing of all civil suits, docketing and filing of criminal
actions, filing divorce suits, and filing adoption petitions. The Second Judicial Circuit, which
consists of Virginia Beach, has the second largest caseload in the State.
Most offices, including Virginia Beach's, are state agencies. All of the fees collected by the
Clerk's Office are paid into the State's General Fund. If the fees collected exceed the State's
portion of salaries and other expenses associated with the Office, the State Code provides the
excess fees to be partially returned to the locality. In the past, the City (by statute) kept two-
thirds of these excess fees. However, due to a legislative change, the City's current portion of
excess fees is one-third, with the State getting the other two-thirds.
For FY 2009-10, the total budget for the Clerk's Office is almost $2.8 million. The State
Compensation Board reimburses the City for a portion of that cost. The amounts reimbursed by
the Board include the employee salaries of approved positions and some of the fringe benefits of
the state-funded positions. The unreimbursed amounts paid by the City include five positions
that are not funded by the Board, the City's portion of fringe benefits, the cost of vacation,
compensatory and sick leave, and supplies and equipment.
Due to recent state budget cuts, the Compensation Board has reduced its reimbursement by
$259,122, which left the Clerk of Circuit Court with no choice but to layoff eleven employees,
or approximately 20% of her staff. The Clerk has had to reduce the hours of operation of her
office. Despite the best efforts to meet the needs of the public, these reductions will ultimately
have a cost in the form of customer services and timely legal process. Also, this reduction in
funding came despite the fact that Virginia Beach's Clerk's Office, unlike most clerk's offices
statewide, generates more in fines and fees than it expends on salaries and other expenses.
For more than a decade, state law has provided that the offices of the clerks of circuit court in
Newport News and in Richmond shall be city agencies, not state entities. This conversion has
allowed those cities to better staff their clerks' offices, and, thus better meet the needs of the
residents they serve.
Request:
The City requests that the General Assembly amend Virginia Code ~ 17.1-288 to add the City of
Virginia Beach to the list of localities where circuit court clerk's offices are city agencies.
I III I
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: A Resolution Directing the City Manager and the City Attorney to Investigate
Ways for the City to Capture Fee Revenue Generated by the Clerk of the Circuit
Court
MEETING DATE: October 27,2009
. Background: The Virginia Beach Clerk of the Circuit Court is a constitutional
office that is funded partially by the state and partially by the City. The Clerk's Office
performs a vital role in the administration of justice for the City. The Office is charged
with the custody, safekeeping and proper indexing of legal documents. The Office is
responsible for the filing of all civil suits, docketing and filing of criminal actions, filing
divorce suits, and filing adoption petitions in the Circuit Court.
Because of state budget cuts, the Clerk's Office has been forced to layoff 11
employees, which is 20% of the staff. To save money, the Office has also reduced its
hours of operation. The loss of these employees and the reduction of hours will
adversely affect our courts and the residents they serve.
. Considerations: For FY 2009, as in past years, the Clerk's Office collected
more fee revenue than it expended on salaries and other expenses. Despite its status
as a self-sustaining and revenue producing agency, the Clerk's budget was cut. The
Virginia Beach Clerk's Office has the second largest case load in the state. The
reduction in staff and hours means longer waits for the filing of legal documents and the
increase in the potential for errors. This resolution would ask the City Manager and the
City Attorney to investigate ways for the City to capture fee revenue generated by the
Clerk's Office. If the City is able to capture fee revenue generated by the Clerk's Office,
these funds can be used to adequately staff the Office and restore the previous hours of
operation, which will promote the interests of public safety and convenience.
. Public Information: Public information will be provided through the normal
agenda process.
. Attachments: Resolution
Requested by Councilmember Davis
REQUESTED BY COUNCILMEMBER DAVIS
1 A RESOLUTION DIRECTING THE CITY MANAGER
2 AND THE CITY A TIORNEY TO INVESTIGATE WAYS
3 FOR THE CITY TO CAPTURE FEE REVENUE
4 GENERATED BY THE CLERK OF THE CIRCUIT
5 COURT
6
7 WHEREAS, as in past years, the Clerk of the Circuit Court of Virginia Beach in
8 FY 2009 generated more fee revenue than it expended on salaries and other expenses,
9 which resulted in the generation of excess revenue for the state; and
10
11 WHEREAS, the State Compensation Board recently reduced the Clerk's Office
12 budget reimbursement, which required the reduction of approximately 20% of that
13 office's staff; and
14
15 WHEREI\S, the state's budget reduction has forced the Clerk's Office to shorten
16 its hours of operation; and
17
18 WHEREAS, no reduction in the percentage of fees payable to the state was
19 made to correspond with the state's reduction in budget reimbursement; and
20
21 WHEREAS, the reduced staff and hours of operation increase the potential for
22 errors, public inconvenience, and, as occurred in another local jurisdiction, the
23 inadvertent release of criminals and criminal suspects; and
24
25 WHEREJ~S, if the City is able to capture fee revenue generated by the Clerk's
26 Office, these funds can be used to adequately staff the Office and restore the previous
27 hours of operation, which will promote the interests of public safety and convenience.
28
29 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
30 VIRGINIA BEACH, VIRGINIA:
31
32 That the City Council hereby directs the City Manager and the City Attorney to
33 investigate ways for the City to capture fee revenue generated by the Clerk of the
34 Circuit Court.
Adopted by the City Council of the City of Virginia Beach, Virginia, this
day of ,2009.
APPROVED AS TO LEGAL SUFFICIENCY:
1?~,'~
City ttorney's )ffice
CA11297
R-1
October 9, 2009
I 1'1 I
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM:
Resolution Providing for the Issuance and Sale of General Obligation
Public Improvement Refunding Bonds, Series 2009A and 2009B in the
Maximum Amount of $130,000,000
MEETING DATE: October 27,2009
. Background: The Department of Finance and the City's Financial Advisor
recommend that the City issue refunding bonds to save on the costs of future debt
service. Due to favorable market conditions, several outstanding bond issues are
candidates for refunding. Because of tax implications due to the stimulus act, Bond
Counsel is recommending two series of bonds.
. Considerations: The City's Bond Counsel, Troutman Sanders, LLP, has
prepared the enclosed resolution authorizing the issuance and sale of the refunding
bonds. If interest rates decline, the City could possibly refund up to $130,000,000 of
bonds; conversely, if interest rates rise the refunding could be considerably less. The
sale, on a competitive basis, is planned for November 18th with the actions of the City
Manager being conclusive provided that the bonds shall have a true interest cost not to
exceed 4.5 percent. It is estimated that the debt service savings under present
conditions will approach several million dollars over the life of the bonds.
After today's Council action, no further vote of the City Council will be necessary.
The final terms of the sale will be provided to City Council shortly following the sale.
There is no "new money" involved with this sale. It is strictly a refunding of previous
debt.
. Public Information: Public information will be handled through the normal
Council agenda process. In addition, a Notice of Sale for each series of bonds will be
placed in The Bond Buyer, a daily newspaper for the tax exempt bond market.
. Recommendations: The enclosed resolution providing for the sale of the two
series of refunding bonds is recommended for City Council approval.
. Attachments: Resolution authorizing bond sale; Draft of the Preliminary Official
Statement with: Draft of the Continuing Disclosure Agreement (Appendix C); Draft of the
Notices of Sale (Appendices F and G)
Recommended Action: Approval of Resolution n f\/J. . A A . . _ _
Submitting Department/Agency: Department of Finance \;j~~~
City Manager: I2U ft LLLk- fL,
RESOLUTION OF THE CITY OF VIRGINIA BEACH,
VIRGINIA, PROVIDING FOR THE ISSUANCE AND SALE
OF GENERAL OBLIGATION PUBLIC IMPROVEMENT
REFUNDING BONDS SERIES 2009A AND SERIES 2009B IN
THE MAXIMUM AGGREGATE PRINCIPAL AMOUNT OF
$130,000,000, AND PROVIDING FOR THE FORM, DETAILS
AND PAYMENT THEREOF
The Cit) has previously issued its $48,500,000 General Obligation Public Improvement
Bonds, Series 2001 (the "Series 2001 Bonds") of which $12,125,000 is outstanding; $95,000,000
General Obligation Public Improvement and Refunding Bonds, Series 2002 (the "Series 2002
Bonds") of which $27,275,000 is outstanding; $65,000,000 General Obligation Public
Improvement Bonds, Series 2004A (the "Series 2004A Bonds") of which $48,750,000 is
outstanding; $80,000,000 General Obligation Public Improvement Bonds, Series 2005 (the "Series
2005 Bonds") of which $68,000,000 is outstanding; $75,000,000 General Obligation Public
Improvement Bonds, Series 2007 (the "Series 2007 Bonds") of which $63,750,000 is outstanding;
$90,000,000 General Obligation Public Improvement Bonds, Series 2008 (the "Series 2008
Bonds"), of which $81,000,000 is outstanding; and its $72,000,000 General Obligation Public
Improvement Bends, Series 2009 (the "Series 2009 Bonds"), of which $72,000,000 is outstanding.
It has been recommended to the City Council by the Financial Advisor that the City may achieve
certain debt service savings by refunding all or a portion of the Series 2001 Bonds, Series 2002
Bonds, Series 2004A Bonds, Series 2005 Bonds, Series 2007 Bonds, Series 2008 Bonds and
Series 2009 Bonds (collectively, the "Prior Bonds") through the issuance of general obligation
refunding bonds in the maximum aggregate principal amount of $130,000,000.
BE IT UESOL VED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA
BEACH, VIRGINIA:
1. Issuance of Bonds. There shall be issued, pursuant to the Constitution and
statutes of the Commonwealth of Virginia, including the City Charter (Chapter 147 of the Acts of
the General Assembly of 1962, as amended) and the Public Finance Act of 1991 (Chapter 26, Title
15.2, Code of Virginia of 1950, as amended), general obligation refunding bonds of the City in the
maximum principal amount of $130,000,000 (the "Bonds"). The proceeds of the Bonds will be
used to refund the Prior Bonds or selected maturities or portions of maturities thereof, to pay the
costs of issuance of the Bonds and costs related thereto as herein authorized.
2. Bond Details. The Bonds may be issued in two series and if issued as separate
series shall be designated "General Obligation Public Improvement Refunding Bonds, Series
2009A," and "General Obligation Public Improvement Refunding Bonds, Series 2009B" or such
other designation as may be determined by the City Manager, shall be in registered form, shall be
dated such date as may be determined by the City Manager, shall be in denominations of $5,000
and integral multtples thereof and shall be numbered R-1 or RF -1 upward. The Bonds if issued as
separate series may be issued at the same time or at different times as determined by the City
Manager in consultation with the Financial Advisor, and the principal amount of each series of
III I
Bonds shall be determined by the City Manager in his discretion in consultation with the Financial
Advisor. Subject to Section 9, the issuance and sale of the Bonds are authorized on terms as shall
be satisfactory to the City Manager; provided, that the Bonds (a) shall have a "true" or "Canadian"
interest cost not to exceed 4.5% (taking into account any original issue discount or premium), (b)
shall be sold to the purchaser thereof at a price not less than 99.0% of the principal amount thereof
(not taking into account any original issue discount or premium), ( c) shall be subject to optional
redemption in accordance with the terms and conditions set forth in Section 4, and (d) shall mature
annually in installments through serial maturities or mandatory sinking fund payments beginning
no later than July 15,2010 and ending no later than July 15, 2024.
Each Bond shall bear interest at such rate as shall be determined at the time of sale,
calculated on the basis of a 360-day year of twelve 30-day months, and payable semiannually on
dates determined by the City Manager. Principal shall be payable to the registered owners upon
surrender of Bonds as they become due at the office of the Registrar (as hereinafter defmed).
Interest shall be payable by check or draft mailed to the registered owners at their addresses as
they appear on the registration books kept by the Registrar on a date prior to each interest payment
date that shall be determined by the City Manager (the "Record Date"). Principal, premium, if
any, and interest shall be payable in lawful money of the United States of America.
Initially, one Bond certificate for each maturity of the Bonds shall be issued to and
registered in the name of The Depository Trust Company, New York, New York ("DTC"), or its
nominee. The City has heretofore entered into a Blanket Issuer Letter of Representations relating
to a book-entry system to be maintained by DTC with respect to the Bonds. "Securities
Depository" shall mean DTC or any other securities depository for the Bonds appointed pursuant
to this Section 2.
In the event that (a) the Securities Depository determines not to continue to act as the
securities depository for the Bonds by giving notice to the Registrar, and the City discharges its
responsibilities hereunder, or (b) the City, in its sole discretion, determines (i) that beneficial
owners of Bonds shall be able to obtain certificated Bonds or (ii) to select a new Securities
Depository, then the City's Director of Finance shall, at the direction of the City, attempt to locate
another qualified securities depository to serve as Securities Depository and authenticate and
deliver certificated Bonds to the new Securities Depository or its nominee, or authenticate and
deliver certificated Bonds to the beneficial owners or to the Securities Depository participants on
behalf of beneficial owners substantially in the form provided for in Section 6; provided, that such
form shall provide for interest on the Bonds to be payable (A) from the date of the Bonds if they
are authenticated prior to the fIrst interest payment date, or (B) from the interest payment date that
is or immediately precedes the date on which the Bonds are authenticated (unless payment of
interest thereon is in default, in which case interest on such Bonds shall be payable from the date
to which interest has been paid). In delivering certificated Bonds, the City's Director of Finance
shall be entitled to rely on the records of the Securities Depository as to the benefIcial owners or
the records of the Securities Depository participants acting on behalf of beneficial owners. Such
certificated Bonds will then be registrable, transferable and exchangeable as set forth in Section 8.
So long as there is a Securities Depository for the Bonds, (1) it or its nominee shall be the
registered owner of the Bonds, (2) notwithstanding anything to the contrary in this Resolution,
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determinations of persons entitled to payment of principal, premium, if any, and interest, transfers
of ownership and exchanges, and receipt of notices shall be the responsibility of the Securities
Depository and shall be effected pursuant to rules and procedures established by such Securities
Depository, (3) the Registrar and the City shall not be responsible or liable for maintaining,
supervising or rl~viewing the records maintained by the Securities Depository, its participants or
persons acting through such participants, (4) references in this Resolution to registered owners of
the Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial
owners of the Bonds, and (5) in the event of any inconsistency between the provisions of this
Resolution and the provisions of the above-referenced Blanket Issuer Letter of Representations,
such provisions of the Blanket Issuer Letter of Representations, except to the extent set forth in
this paragraph and the next preceding paragraph, shall control.
3. Refundine: Provisions.
The City Manager is authorized and directed to select the principal maturities of the Prior
Bonds or portions of such maturities to be refunded and to cause to be called for optional
redemption any such maturity or portion thereof to be redeemed prior to its stated maturity in
accordance with the provisions of such bonds; provided such maturities or portions thereof
selected are expected in the aggregate to provide a minimum savings of 2.85% on a net present
value basis as determined by the Financial Advisor. In connection with the refunding herein
authorized, the City Manager, if determined necessary or appropriate in consultation with the
Financial Advisor, is authorized to retain the services of independent consultants to provide
verification repOlts (the "Verification Agent") on aspects of the refunding and is further authorized
to retain the services of one or more escrow agents (the "Escrow Agent") and to enter into escrow
agreements with them to the extent needed to hold portions of the proceeds of the Bonds and other
funds as needed pending their application to refund the Prior Bonds or portions thereof selected to
be refunded.
4. Redemption Provisions.
(a) Qj>tional Redemption. The Bonds shall be subject to redemption prior to maturity
at the option of the City Manager, in whole or in part, at any time on or after dates, if any,
determined by the City Manager, beginning no later than July 15,2019 at a redemption price equal
to the principal amount to be redeemed, together with any interest accrued to the date fixed for
redemption, plus a redemption premium not to exceed 2% of the principal amount to be redeemed,
such redemption premium to be determined by the City Manager.
(b) Mandatory Sinking Fund Redemption. Any term bonds may be subject to
mandatory sinking fund redemption upon terms determined by the City Manager.
If so determined by the City Manager, the Bonds may provide that the City may take a
credit against the mandatory sinking fund redemption obligation of any maturity of term Bonds in
the amount of Bonds of the same maturity that have been optionally redeemed or surrendered for
cancellation and have not been applied previously as such a credit. If the City wishes to take such
a credit, on or before the 70th day next preceding any such mandatory sinking fund redemption
date, the City's Director of Finance may instruct the Registrar to apply a credit against the City's
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I I
III I
mandatory sinking fund redemption obligation for any Bonds of the applicable maturity that have
been optionally redeemed or surrendered for cancellation by the City and have not been previously
applied as a credit against any mandatory sinking fund redemption obligation for that maturity of
the Bonds. Each Bond so previously optionally redeemed or surrendered shall be credited at
100% of the principal amount thereof against the principal amount of such maturity of the Bonds
required to be redeemed on such mandatory sinking fund redemption date or dates for such
maturity as may be selected by the Director of Finance.
(c) Selection of Bonds for Redemption. If less than all of the Bonds are called for
optional redemption, the maturities of the Bonds to be redeemed shall be selected by the City's
Director of Finance in such manner as may be determined to be in the best interest of the City. If
less than all of a particular maturity of the Bonds are called for redemption, the Bonds within such
maturity to be redeemed shall be selected by the Securities Depository pursuant to its rules and
procedures or, if the book-entry system is discontinued, shall be selected by the Registrar by lot in
such manner as the Registrar in its discretion may determine. In either case, (a) the portion of any
Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof
and (b) in selecting Bonds for redemption, each Bond shall be considered as representing that
number of Bonds that is obtained by dividing the principal amount of such Bond by $5,000.
(d) Redemption Notices. The City shall cause notice of the call for redemption
identifying the Bonds or portions thereof to be redeemed to be sent by facsimile transmission,
registered or certified mail or overnight express delivery, not less than 30 nor more than 60 days
prior to the redemption date, to the registered owner of the Bonds. The City shall not be
responsible for mailing notice of redemption to anyone other than DTC or another qualified
Securities Depository or its nominee unless no qualified Securities Depository is the registered
owner of the Bonds. If no qualified Securities Depository is the registered owner of the Bonds,
notice of redemption shall be mailed to the registered owners of the Bonds. If a portion of a Bond
is called for redemption, a new Bond in principal amount equal to the unredeemed portion thereof
will be issued to the registered owner upon the surrender thereof.
5. Execution and Authentication. The Bonds shall be signed by the manual or
facsimile signature of the Mayor or Vice-Mayor, shall be countersigned by the manual or
facsimile signature of the City Clerk or Deputy Clerk, and the City's seal shall be affixed thereto
or a facsimile thereof printed thereon; provided, that if both of such signatures are facsimiles, no
Bond shall be valid until it has been authenticated by the manual signature of the City Treasurer,
as Registrar, or an authorized officer or employee of any bank or trust company serving as
successor Registrar and the date of authentication noted thereon.
6. Bond Form. The Bonds shall be in substantially the form attached to this
Resolution as Exhibit A, with such completions, omissions, insertions and changes not
inconsistent with this Resolution as may be approved by the officers signing the Bonds, whose
approval shall be evidenced conclusively by the execution and delivery of the Bonds.
7. Pled2e of Full Faith and Credit. The full faith and credit of the City are
irrevocably pledged for the payment of the principal of, premium, if any, and interest on the
Bonds. Unless other funds are lawfully available and appropriated for timely payment of the
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Bonds, the City Council shall levy and collect an annual ad valorem tax, over and above all other
taxes authorized or limited by law and without limitation as to rate or amount, on all locally
taxable property in the City sufficient to pay when due the principal of, premium, if any, and
interest on the Bonds.
8. Reeistration. Transfer and Owners of Bonds. The City Treasurer is
appointed paying agent and registrar for the Bonds (the "Registrar"). The City may appoint a
qualified bank or trust company as successor paying agent and registrar of the Bonds. The
Registrar shall maintain registration books for the registration and registration of transfers of the
Bonds. Upon presentation and surrender of any Bonds at the office of the Registrar, or at its
designated corporate trust office if the Registrar is a bank or trust company, together with an
assignment duly executed by the registered owner or his duly authorized attorney or legal
representative in such form as shall be satisfactory to the Registrar, the City shall execute, and the
Registrar shall authenticate, if required by Section 5, and shall deliver in exchange, a new Bond or
Bonds having an equal aggregate principal amount, in authorized denominations, of the same form
and maturity, bearing interest at the same rate and registered in the name as requested by the then
registered owner thereof or its duly authorized attorney or legal representative. Any such transfer
or exchange shall be at the expense of the City, except that the Registrar may charge the person
requesting such transfer or exchange the amount of any tax or other governmental charge required
to be paid with n:spect thereto.
The Reghtrar shall treat the registered owner as the person or entity exclusively entitled to
payment of prine ipal, premium, if any, and interest and the exercise of all other rights and powers
of the owner, exeept that interest payments shall be made to the person or entity shown as owner
on the registration books as of the Record Date.
9. Snle of Bonds. The City Council approves the following terms of the sale of the
Bonds. The Bonds shall be sold by competitive bid in a principal amount to be determined by the
City Manager, in collaboration with the Financial Advisor, subject to the limitations set forth in
Sections 1 and 2, and the City Manager shall receive bids for the Bonds, which bids may be
received separately on each series of Bonds, and award the Bonds to the bidder or bidders
providing the lowest "true" or "Canadian" interest cost, subject to the limitations set forth in
Section 2. Following the sale of the Bonds, the City Manager shall file a certificate with the City
Clerk setting fOf1:h the fmal terms of the Bonds. The actions of the City Manager in selling the
Bonds shall be conclusive, and no further action with respect to the sale and issuance of the Bonds
shall be necessary on the part of the City Council.
10. ~)tice of Sale: Bid Form. The City Manager, in collaboration with the Financial
Advisor, is authorized and directed to take all proper steps to advertise the Bonds for sale
substantially in accordance with the form of the Official Notice of Sale and the form of the
Official Bid Form, which forms are attached as an Appendix to the draft of the Preliminary
Official Statement described in Section 11 below, and which forms are approved; provided, that
the City Manager, in collaboration with the Financial Advisor, may make such changes in the
Official Notice of Sale and the Official Bid Form not inconsistent with this Resolution as he may
consider to be in .the best interest of the City.
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11. Official Statement. A draft of a Preliminary Official Statement describing the
Bonds, a copy of which has been provided or made available to each member of the City Council,
is approved as the form of the Preliminary Official Statement by which the Bonds will be offered
for sale, with such completions, omissions, insertions and changes not inconsistent with this
Resolution as the City Manager, in collaboration with the Financial Advisor, may consider
appropriate. After the Bonds have been sold, the City Manager, in collaboration with the
Financial Advisor, shall make such completions, omissions, insertions and changes in the
Preliminary Official Statement not inconsistent with this Resolution as are necessary or desirable
to complete it as a fmal Official Statement, execution thereof by the City Manager to constitute
conclusive evidence of his approval of any such completions, omissions, insertions and changes.
The City shall arrange for the delivery to the purchaser or purchasers of the Bonds of a reasonable
number of copies of the final Official Statement by the earlier of seven business days after the
Bonds have been sold or the date of issuance thereof, for delivery to each potential investor
requesting a copy of the Official Statement and for delivery to each person to whom such
purchaser or purchasers initially sells Bonds.
12. Official Statement Deemed Final. The City Manager is authorized, on behalf of
the City, to deem the Preliminary Official Statement and the Official Statement in final form as of
their respective dates within the meaning of Rule 15c2-12 ("Rule 15c2-12") of the Securities and
Exchange Commission (the "SEC"), except for the omission in the Preliminary Official Statement
of certain pricing and other information permitted to be omitted pursuant to Rule 15c2-12. The
distribution of the Preliminary Official Statement and the Official Statement in fmal form shall be
conclusive evidence that each has been deemed final as of its date by the City, except for the
omission in the Preliminary Official Statement of such pricing and other information permitted to
be omitted pursuant to Rule 15c2-12.
13. Preparation and Deliverv of Bonds. After bids have been received and the Bonds
have been awarded to the winning bidder or bidders, the officers of the City are authorized and
directed to take all proper steps to have the Bonds prepared and executed in accordance with their
terms and to deliver the Bonds to the purchaser or purchasers thereof upon payment therefor.
14. Arbitra2e Covenants. The City covenants that it shall not take or omit to take any
action the taking or omission of which will cause the Bonds to be "arbitrage bonds" within the
meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and regulations issued
pursuant thereto (the "Code"), or otherwise cause interest on the Bonds to be includable in the
gross income of the registered owners thereof under existing laws. Without limiting the generality
of the foregoing, the City shall comply with any provision of law that may require the City at any
time to rebate to the United States any part of the earnings derived from the investment of the
gross proceeds of the Bonds, unless the City receives an opinion of nationally recognized bond
counsel that such compliance is not required to prevent interest on the Bonds from being
includable in the gross income of the registered owners thereof under existing law. The City shall
pay any such required rebate from its legally available funds.
15. Non-Arbitra2e Certificate and Elections. Such officers of the City as may be
requested are authorized and directed to execute an appropriate certificate setting forth the
reasonably expected use and investment of the proceeds of the Bonds in order to show that such
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reasonably expected use and investment will not violate the provisions of Section 148 of the Code,
and any elections such officers deem desirable regarding rebate of earnings to the United States,
for purposes of eomplying with Section 148 of the Code. Such certificate and elections shall be in
such form as may be requested by bond counsel for the City.
16. !,imitation on Private Use. The City covenants that it shall not permit the
proceeds of the Bonds or the facilities fmanced or refinanced with the proceeds of the Bonds to be
used in any manner that would result in (a) 5% or more of such proceeds or of the facilities
fmanced or refinanced with such proceeds being used in a trade or business carried on by any
person other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5% or more
of such proceeds: or the facilities being fmanced with such proceeds being used with respect to any
output facility (other than a facility for the furnishing of water), within the meaning of Section
141(b)(4) of the Code, or (c) 5% or more of such proceeds being used directly or indirectly to
make or finance loans to any person other than a governmental unit, as provided in Section 141 (c)
of the Code; provided, that if the City receives an opinion of nationally recognized bond counsel
that any such covenants need not be complied with to prevent the interest on the Bonds from being
includable in tht: gross income for federal income tax purposes of the registered owners thereof
under existing law, the City need not comply with such covenants.
17. Investment Authorization. The City Council hereby authorizes the Director of
Finance to direct the City Treasurer to utilize either or both of the State Non-Arbitrage Program of
the Commonwealth of Virginia ("SNAP") and the Virginia Arbitrage & Investment Management
Program ("AIM") in connection with the investment of the proceeds of the Bonds, if the City
Manager and the Director of Finance determine that the utilization of either SNAP or AIM is in
the best interest of the City. Additionally, the proceeds of the Bonds may be invested with SNAP,
AIM or in legally permissible investments pursuant to the terms of an escrow deposit agreement
with an Escrow Agent as the City Manager may determine with the advice of the Financial
Advisor. The City Council acknowledges that the Treasury Board of the Commonwealth of
Virginia is not, and shall not be, in any way liable to the City in connection with SNAP, except as
otherwise provided in the SNAP Contract.
18. Ol}ntinuine: Disclosure Ae:reement. The Mayor, the City Manager and such
officer or officers of the City as either may designate are hereby authorized and directed to execute
and deliver a continuing disclosure agreement setting forth the reports and notices to be filed by
the City and containing such covenants as may be necessary to assist the purchaser of the Bonds in
complying with 1he provisions of Rule 15c2-12. Such continuing disclosure agreement shall be
substantially in the form attached as an Appendix to the draft of the Preliminary Official Statement
described in Seetion 11 above, which form is approved with such completions, omissions,
insertions and ch;mges that are not inconsistent with this Resolution.
19. 01ther Actions. All other actions of officers of the City and of the City Council in
conformity with ~the purposes and intent of this Resolution and in furtherance of the issuance and
sale of the Bonds are hereby ratified, approved and confirmed. The officers of the City are
authorized and directed to execute and deliver all certificates and instruments and to take all such
further action as may be considered necessary or desirable in connection with the issuance, sale
and delivery of the Bonds.
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20. ReDeal of Contlictine: Resolutions. All resolutions or parts of resolutions in
conflict herewith are repealed.
21. Effective Date. This Resolution shall take effect immediately.
Exhibit A - Form of Bonds
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Exhibit A - Form of Bonds
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the issuer or its agent for registration of
transfer, exchallge or payment, and this certificate is registered in the name of Cede & Co.,
or in such oth4~r name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered ownt~r hereof, Cede & Co., has an interest herein.
REGISTERED
No. R-
REGISTERED
$
UNITED STATES OF AMERICA
COMMONWEALTH OF VIRGINIA
CITY OF VIRGINIA BEACH
General Obligation Public Improvement Refunding Bond
[Series 2009A] [Series 2009B]
INTEREST RATE MATURITY DATE DATED DATE
0/0
July 15,20_
, 2009
CUSIP
927734
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
DOLLARS
The City of Virginia Beach, Virginia (the "City"), for value received, promises to pay,
upon surrender hereof to the registered owner hereof, or registered assigns or legal representative,
the Principal Amount stated above on the Maturity Date stated above, subject to prior redemption
as hereinafter provided, and promises to pay interest hereon from the Dated Date stated above on
each January 15 lmd July 15, beginning January 15,2010, at the annual Interest Rate stated above,
calculated on the basis of a 360-day year of twelve 3D-day months. Principal, premium, if any,
and interest are payable in lawful money of the United States of America by the City Treasurer,
who has been appointed Registrar (the "Registrar"). The City may appoint a qualified bank as
successor paying agent and registrar for the bonds.
Notwithstanding any other provision hereof, this bond is subject to a book-entry system
maintained by TIle Depository Trust Company ("DTC"), and the payment of principal, premium,
if any, and interest, the providing of notices and other matters shall be made as described in the
City's Blanket Issuer Letter of Representations to DTC.
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This bond is one of an issue of $ General Obligation Public Improvement
Refunding Bonds, [Series 2009A] [Series 2009B] (the "Bonds"), of like date and tenor, except as
to number, denomination, rate of interest, privilege of redemption and maturity, and is issued
pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City
Charter and the Public Finance Act of 1991. The Bonds have been authorized and are being
issued by the City Council of the City of Virginia Beach (the "City Council") pursuant to a
resolution adopted by the City Council on October 27, 2009 (the "Bond Resolution"), to refund
$ of the outstanding principal balance of the City's General Obligation [Public
Improvement and Refunding] Bonds, Series and to pay costs of
issuance of the Bonds.]
The Bonds maturing on or before July 15, 20_, are not subject to optional redemption
prior to maturity. The Bonds maturing on or after July 15,20_, are subject to redemption prior to
maturity at the option of the City on or after July 15,20_, in whole or in part at any time (in any
multiple of $5,000), upon payment of the principal amount of the Bonds to be redeemed plus
interest accrued and unpaid to the date fixed for redemption.
The Bonds maturing on , 20_, are required to be redeemed in part before
maturity by the City on in the years and amounts set forth below, at a redemption price
equal to 100% of the principal amount of the Bonds to be redeemed, plus interest accrued and
unpaid to the date fIxed for redemption:
Year
Amount
Year
Amount
The Bond Resolution provides for a credit against the mandatory sinking fund redemption of the
Bonds maturing on , 20_ in the amount of Bonds of the same maturity that have been
optionally redeemed or surrendered for cancellation and have not been applied previously as such
a credit.
If less than all of the Bonds are called for optional redemption, the maturities of the Bonds
to be redeemed shall be selected by the City's Director of Finance in such manner as may be
determined to be in the best interest of the City. If less than all the Bonds of a particular maturity
are called for redemption, the Bonds within such maturity to be redeemed shall be selected by
DTC or any successor securities depository pursuant to its rules and procedures or, if the book
entry system is discontinued, shall be selected by the Registrar by lot in such manner as the
Registrar in its discretion may determine. In either case, (a) the portion of any Bond to be
redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b) in
selecting Bonds for redemption, each Bond shall be considered as representing that number of
Bonds that is obtained by dividing the principal amount of such Bond by $5,000.
The City shall cause notice of the call for redemption identifying the Bonds or portions
thereof to be redeemed to be sent by facsimile transmission, registered or certifIed mail or
overnight express delivery, not less than 30 nor more than 60 days prior to the redemption date, to
DTC or its nominee as the registered owner hereof. If a portion of this bond is called for
A-2
redemption, a ll(~W Bond in the principal amount of the unredeemed portion hereof will be issued
to the registered owner upon surrender hereof.
The full faith and credit of the City are irrevocably pledged for the payment of principal of,
premium, if any, and interest on this bond. Unless other funds are lawfully available and
appropriated for timely payment of this bond, the City Council shall levy and collect an annual ad
valorem tax, ove:r and above all other taxes authorized or limited by law and without limitation as
to rate or amount, on all taxable property within the City sufficient to pay when due the principal
of, premium, if any, and interest on this bond.
The Registrar shall treat the registered owner of this bond as the person or entity
exclusively entitled to payment of principal of and interest on this bond and the exercise of all
other rights and powers of the owner, except that interest payments shall be made to the person or
entity shown as ,the owner on the registration books on the flIst day of the month preceding each
interest payment date.
In the eVlmt a date for the payment of principal, redemption price, or interest on this bond
is not a business day, then payment of principal, redemption price, and interest on, this bond shall
be made on the next succeeding day which is a business day, and if made on such next succeeding
business day, no additional interest shall accrue for the period after such payment or redemption
date.
All acts, conditions and things required by the Constitution and statutes of the
Commonwealth of Virginia to happen, exist or be performed precedent to and in the issuance of
this bond have happened, exist and have been performed, and the issue of Bonds of which this
bond is one, toge:ther with all other indebtedness of the City, is within every debt and other limit
prescribed by the Constitution and statutes of the Commonwealth of Virginia.
A-3
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IN WITNESS WHEREOF, the City of Virginia Beach, Virginia, has caused this bond to
be signed by its Mayor, to be countersigned by its Clerk, its seal to be affixed hereto, and this
bond to be dated the Dated Date stated above.
COUNTERSIGNED:
(SEAL)
Clerk, City of Virginia Beach, Virginia
Mayor, City of Virginia Beach, Virginia
A-4
ASSIGNMENT
FOR VALUE RECENED the undersigned sell(s), assign(s) and transfer(s) unto:
(Please print or type name and address, including postal zip code, of Transferee)
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE:
the within bond and all rights thereunder, hereby irrevocably constituting and appointing
, Attorney,
to transfer said bond on the books kept for the registration thereof, with full power of substitution
in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by (Signature of Registered Owner)
an Eligible Gmil'antor Institution such as a NOTICE: The signature above must
Commercial Bank, Trust Company, Securities correspond with the name of the registered
BrokerlDealer, Credit Union or Savings owner as it appears on the front of this bond in
Association who is a member of a medallion every particular, without alteration or
program. approved by The Securities Transfer enlargement or any change whatsoever.
Association, Inc.
A-5
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Requires an affirmative vote by a majority of the members of the City Council.
Adopted by the City Council of the City of Virginia Beach, Virginia, this 27th day of October,
2009.
APPROVED AS TO CONTENT:
APPROVED AS TO LEGAL
SUFFICIENCY:
~(LU~4
Finance Department
~
L/~/?-z ~~
City Att ey's Office
CERTIFICATE
The undersigned Clerk of the City Council of the City of Virginia Beach, Virginia (the
"City Council"), certifies that:
1. A meeting of the City Council was held on October 27, 2009, at the time and place
established and noticed by the City Council, at which the members of the City Council were
present or absent as noted below. The foregoing Resolution was adopted by a majority of the
members of the City Council, by a roll call vote, the ayes and nays being recorded in the minutes
of the meeting as shown below:
PRESENT! ABSENT:
VOTE:
William D. Sessoms, Jr., Mayor
Louis R. Jones~ Vice Mayor
Glenn R. Davis
Bill R. DeSteph
Harry E. Diezel
Robert M. Dyer
Barbara M. Henll~y
John E. Uhrin
Ronald A. Villanueva
Rosemary Wilson
James L. Wood
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2. The foregoing Resolution is a true and correct copy of such Resolution as adopted
on October 27, 2009. The foregoing Resolution has not been repealed, revoked, rescinded or
amended and is in full force and effect on the date hereof.
WlTNESS my signature and the seal of the City of Virginia Beach, Virginia, this
_st day of October, 2009.
Clerk, City Council of the City of Virginia
Beach, Virginia
(SEAL)
186796Ov2
205182.000132
I III I
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CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: An Ordinance Authorizing the City Manager to Execute a 3-Year Lease with
Seasons Best Bakery, LLC for Space #37 in the Virginia Beach Farmers
Market.
MEETING DATE: October 27,2009
. Background: Seasons Best Bakery, LLC is an existing tenant at the Virginia
Beach Farmers Market and would like to continue to lease Space #37 from the
City of Virginia Beach (the "City").
. Considerations: The term of the Lease is three (3) years. The Lease has a
sixty-day (60) termination clause in the event the City needs the property for a
public purpose prior to the termination of the lease. For more specific terms, see
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,;?!?!
City Manager: W A. \.\~lK- ~ I
V.\applicationslcitylawprodlcycom321 WpdocslDO 11 IP005100003209.DOC
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AN ORDINANCE AUTHORIZING THE CITY
MANAGER TO EXECUTE A 3-YEAR LEASE WITH
SEASONS BEST BAKERY, LLC FOR SPACE #37 IN
THE VIRGINIA BEACH FARMERS MARKET
WHERI:::AS, 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, Seasons Best Bakery, LLC ("Seasons Best") is an existing tenant
and would like to enter into a new formal lease arrangement with the City for Space #37
in the Property (the "Premises");
WHEREAS, the Premises will be utilized as a bakery/candy store, and for no
other purpose:
WHEREAS, Seasons Best has agreed to pay the City $296 per month ($3,552
per year) for the use of the Premises for the first year of the term, with annual rent
increases equal to 5%;
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF VIRGINIA BEACH, VIRGINIA:
That thEl City Manager is hereby authorized to execute a lease for a term of three
(3) years between Seasons Best Bakery, LLC and the City for the Premises in
accordance with the Summary of Terms attached hereto, 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
APPROVED AS TO CONTENT
~~
City Attorney
....,
CA11209
V:\applications\citylawprodlcycc m32\ Wpdocs\DO lIIl'O05\00003213.DOC
R-1
October 14, 2009
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SUMMARY OF TERMS
LEASE FOR SPACE #37 AT THE
VIRGINIA BEACH FARMERS MARKET
LESSOR:
City of Virginia Beach
LESSEE:
Seasons Best Bakery, LLC
PREMISES:
Space #37
TERM:
36 months: October 1,2009 - September 30,2012
RENT:
Year 1: $296 per month ($3,552 per year)
Year 2: $311 per month ($3,732 per year)
Year 3: $327 per month ($3,924 per year)
RIGHTS AND RESPONSIBILITIES OF LESSEE:
. Use leased space for the operation of a bakery/candy store 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. 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' written notice.
. City also has special right to terminate if necessary for any public purpose by
giving sixty (60) days' written notice.
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VIRGINIA BEACH
FARJlERS'IIARlnIT
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I III I
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: An Ordinance Authorizing a Right-In-Only Access Point from Princess
Anne Road to Property Located at the Northwest Intersection of Princess
Anne Road and South Independence Boulevard
MEETING DATE: October 27,2009
. Background:
By ordinance [ORD-3057C] dated November 25, 2008, City Council approved
the sale of City-owned property (the "Property") located at the northwest
intersection of Princess Anne Road and South Independence Boulevard (GPIN:
1485-16-9065) to Tailwind Development Group, L.L.C. ("Tailwind"). Tailwind was
the selected respondent to a Request for Proposals (the "RFP") issued for the
Property.
The RFP stated that "vehicular access to the site shall be limited to a right-
in/right-out point located on South Independence Boulevard, at its furthest point
from the intersection with Princess Anne Road". Tailwind has requested that an
additional right-in-only access point be permitted from Princess Anne Road.
. Considerations:
. Princess Anne Road is a controlled access highway (R-90-01894).
. Without a right-in-only access point from Princess Anne Road, visitors or
tenants coming from the south on Princess Anne Road could only access
the site by turning right on Independence and making a u-turn. This
limited access will make the property difficult to market for medical office
use.
. Tailwind has agreed to construct a bus pull-out and stop at the location of
the access point, which would also be used as a deceleration lane for the
site.
. The right-in-only access point on Princess Anne Road would be located as
far west from the Independence Boulevard intersection as possible.
. Public Information:
Advertisement of City Council Agenda.
. Alternatives:
Approve the designation of the access point or deny the designation of the
access I::>oint.
. Recommendations:
Approval.
. Attachments: Ordinance
Location Map
Recommended Action: Approval of the Ordinance
Submitting DE!partmentJAgency: Pu .
City Managef~ k .as~
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I III I
AN ORDINANCE AUTHORIZING A RIGHT-IN-ONL Y
ACCESS POINT FROM PRINCESS ANNE ROAD TO
PROPERTY LOCATED AT THE NORTHWEST
INTERSECTION OF PRINCESS ANNE ROAD AND
SOUTH INDEPENDENCE BOULEVARD
WHEREAS, on September 4, 1990, the City Council of Virginia Beach ("City
Council") affirmed by resolution [R-90-01894] the continued designation of Princess
Anne Road as a controlled access highway;
WHEREAS, on November 25, 2008, City Council adopted Ordinance 3057C
declaring the property (the "Property") located at the northwest intersection of Princess
Anne Road and South Independence Boulevard (GPIN: 1485-16-9065) to be in excess
of the City's needs and authorizing the City Manager to sell the Property to Tailwind
Development Group, L.L.C. ("Tailwind");
WHEREAS, a Request for Proposals (the "RFP") had been issued for the
Property, and Tailwind was the selected respondent;
WHEREAS, the RFP stated that "vehicular access to the site shall be limited to a
right-in/right-out point located on South Independence Boulevard, at its furthest point
from the intersection with Princess Anne Road", and Tailwind's proposal limited access
to that point;
WHEREAS, a purchase agreement between the City and Tailwind has been
finalized but not executed; and
WHEREAS, in order to finance its development on the Property, Tailwind has
requested a right-in-only access point from Princess Anne Road to the Property.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
VIRGINIA BEACH, VIRGINIA:
That Tailwind's request for a right-in only access point from Princess Anne Road
to the Property is granted.
Adopted by the Council of the City of Virginia Beach, Virginia, on the 2th day of
October, 2009.
APPROVED AS TO CONTENT:
APPROVED AS TO LEGAL
SUFFICIENCY:
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Pu Ie Works
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CA11205
\\vbgov.comldfs I \applications\ dtylawprod\cycom32\ WpdocsIDO09\P006\OO024472.DOC
R-1
10/16/2009
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CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: An Ordinance to Appropriate $1,067,000 from Fund Balance to the FY 2009-10
Operating Budget of Parks and Recreation
MEETING DATE: October 27, 2009
. Background: The City provides landscape services for 93 school sites through a
School Landscaping Internal Service Fund ("Fund"). The Fund accumulates year-end
fund balance primarily due to personnel vacancies. The current fund balance is
$2,430,126. Public Schools requests the Fund pay for one-time, unfunded projects.
. Considerations: The following projects and equipment have been approved by
School's Administration and will address deteriorating conditions at various school sites:
o Playground safety improvements (surfacing removal and replacement of
mulch, i.e. removing old mulch and re-mulching) at 12 sites ($186,000);
o Hazardous tree and stump removal at various sites ($45,000);
o Replacement of various motor vehicles and equipment ($306,000); and
o Improvements (primarily track and fence replacement) to sites at Brandon
and Plaza Middle Schools ($530,000).
The total cost of all of these projects is $1,067,000.
. Public Information: Public information will be coordinated through the normal
City Council agenda process.
. Recommendations: Approval of attached ordinance.
. Attachments: Ordinance; Memorandum from John Kalocay, Assistant
Superintendent, Administrative Support Services.
Recommended Action: Approval
Submitting Department/Agency: Parks and Recreation
City Manager:~\ k. ~""
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AN ORDINANCE TO APPROPRIATE $1,067,000
FROM FUND BALANCE TO THE FY 2009-10
OPERATING BUDGET OF THE DEPARTMENT OF
PARKS AND RECREATION
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,
VIRGINIA:
That $1,067,000 in fund balance from the School Landscaping Internal Service
Fund is hereby appropriated, with Specific Fund Reserve revenues increased
accordingly, to the FY 2009-10 Operating Budget of the Department of Parks and
Recreation to pay for one-time expenditures.
Adopted by the Council of the City of Virginia Beach, Virginia on the
,2009.
day
of
Requires an affirmative vote by a majority of all the members of City Council.
APPROVED AS TO CONTENT:
APPROVED AS TO LEGAL
SUFFICIENCY:
D~ o. ~^'-,,~~
Management services~ )
~)~-/(~ ---
CitY ~ey s Office
CA11306
R-2
October 15, 2009
~RGINIA BEACH CITY PUBLIC SCHOOLS
AHEAD OF THE CURVE
RECEIVED q:p 2 8 2009
John S. Kalocay
Assistant Superintendent
Administrative Support Services
MEMORANDUM
TO:
Eddie Barnes, Administrator
Landscape Management Division
FROM:
John S. Kalocay, Assistant Superintendent
Department of Administrative Support Services
C6-J jL/'
SUBJECT: (i13 Internal Service Fund Net Assets for FY 2009-10
DA TE: September 24, 2009
We authorize the amount of $1,067,000 in the 613 Internal Service Fund Assets for replacement
equipment, playground surfacing removal and replacement and removal of hazardous trees and
stumps. We support the use of the Internal Service Fund Net Assets for these projects and we
ask that you proceed to transfer the funds. Please contact me should you have any questions
and/or concerns.
~
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L.
PLANNING
1. Application of McRJERS, LLC, for closure of a portion of Jefferson Boulevard at Jefferson Boulevard and
Windsor Crescent and a portion of Windsor Crescent north of Jefferson Boulevard.
DISTRICT 4 - BA YSIDE
RECOMMENDATION
APPROVAL
2. Variance to ~4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of
the City Zoning Ordinance (CZO) for COASTAL LIVING BUILDERS, L.L.C.fWILLIAM T. KILEY and
HELEN R. PAXTON to subdivide four (4) lots for the development of two single-family dwellings at 800
Greensboro Avenue.
DISTRICT 6 - BEACH DISTRICT
DEFERRED
STAFF RECOMMENDATION
PLANNING COMMISSION RECOMMENDATION
September 22, 2009
APPROVAL
NO RECOMMENDATION DUE TO A TIE VOTE
3. Variance to ~4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of
the City Zoning Ordinance (CZO) for Wll..BERT H. LAWRENCE, SR., to subdivide 1564 Back Bay Landing
Road.
DISTRICT 7 - PRINCESS ANNE
RECOMMENDATION
DENIAL
4. Application of BARRY BEHRMAN / ARROWHEAD PLAZA, LLC, Modification of Conditions (approved
by City Council on April 27, 1993, January 26,1999 and March 27,2001) for expansion of an existing
recreation facility.
DISTRICT 2 - KEMPSVILLE
RECOMMENDATION
APPROVAL
5. Application of5105 PRINCESS ANNE, LLC / FULTON BANK, (ABOUNDING GRACE ASSEMBLY) re
a church at 5102 Princess Anne Road.
DISTRICT 2 - KEMPSVILLE
a. Change of Zoning District Classification from B-2 Community Business District and 1-1 Light Industrial
District to Conditional B-2 Community Business District
b. Conditional Use Permit for religious use
RECOMMENDATION
APPROVAL
6. Application of NEW FIRST COLONIAL ASSOCIATES for a Change of Zoning District Classification from
R-15 Residential District to Conditional 0-1 Office District re a dental office at 5315 Bonneydale Road.
DISTRICT 2 - KEMPSVILLE
RECOMMENDATION
APPROVAL
7. Application of JESSUP CONSTRUCTION L.L.C. / JOHN P. MYERS for a Change of Zoning District
Classification from R-40 Residential District to Conditional R-20 Residential District in order to create four (4)
lots from two (2) existing lots at 1125 and 1129 Trantwood Avenue.
DISTRICT 5 - L YNNHA YEN DISTRICT
RECOMMENDATION
APPROVAL
8. Application of CITY OF VIRGINIA BEACH to AMEND ~20 1 of the City Zoning Ordinance (CZO) re
Setbacks for Piers.
RECOMMENDATION
APPROVAL
MCRJE~RS, LLC
Map F-2
Map Not to Scale
cs~
~eqk,
e Bay
Street Closure
Relevant Ilnformation:
· Bayside District
. The ~lpplicant requests closure of a 2.7 square foot portion of an
unimproved right-of-way known as Windsor Crescent.
. A pre!vious owner built a corner of the residence 0.8 feet into the
Windsor Crescent right-of-way.
. City Council deferred this item on April 28. Since then, the applicant
has s,ignificantly reduced the area proposed for closure to include
only 1that needed to address the part of the main structure that was
built in the right-of-way (reduction from 625 SF to 2.7 SF).
Evaluation and Recommendation:
· Planning Staff recommended approval
. Planning Commission recommends approval (6-5)
. TherE! was opposition to the original proposal of 625 SF
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CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: Ordinance approving application of McRjers, LLC, for the closure of a portion of
Windsor Crescent adjacent to 3868 Jefferson Boulevard. DISTRICT 4 -
BA YSIDE.
MEETING DATE: October 27,2009
. Background:
The applicant requests to close a small portion of an unimproved right-of-way
known as Windsor Crescent adjacent to the property located at 3868 Jefferson
Boulevard. A portion of the right-of-way serves as a pedestrian path to the
Chesapeake Bay. This street closure request was indefinitely deferred by City
Council at its formal session on April 28, 2009.
. Considerations:
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. That request was denied, and the
property owner at that time pursued setback variances from the Board ot 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 tor
reasons unknown, the two (2) previous property owners ignored the reduced
setbacks, and the dwelling was expanded into the right-ot-way. A corner of the
residence encroaches 0.8 teet into the Windsor Crescent right-ot-way and a
second tloor overhang encroaches 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 2.7 square feet I 0.000062 acre, far less than
requested in 1989, in order to eliminate the encroachment of a corner of the
residence into the right-of-way 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 this encroachment, 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 corner of the residence 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
ownorship 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
IimitEld to 2.7 square feet 10.000062 acre, more or less, as shown on the
submitted survey.
4. Therl3 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
cond itions 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 De~arlmentlAgenCY: Planning Department ~
City Manager: l2.ll.- 1. ~l~ ~c
I 1'1 I
1 ORDINANCE APPROVING APPLICATION OF
2 MCRJERS, LLC, FOR THE CLOSURE OF A
3 PORTION OF WINDSOR CRESCENT ADJACENT
4 TO 3868 JEFFERSON 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
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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:
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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 R/W TO BE CLOSED (0.000062
26 ACRES)" shown as the shaded area on that certain plat
27 entitled: "STREET CLOSURE PLAT PART OF WINDSOR
28 CRESCENT R/W LOCATED BETWEEN BLOCK 48 &
29 BLOCK 57 OCEAN PARK SECTION C M.B. 5 P. 195
30 VIRGINIA BEACH, VIRGINIA" Scale: 1"=10', dated
31 DECEMBER 30, 2008 and revised through April 28, 2009,
32 prepared by Gallup Surveyors & Engineers, LTD., a copy of
33 which is attached hereto as Exhibit A.
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44 GPIN: 1580-20-0157-0000
1
45 SECTION II
46
47 The following conditions must be met on or before one (1) year from City
48 Council's adoption of this ordinance:
49
50 1. The City Attorney's Office will make the final determination
51 regarding ownership of the underlying fee. The purchase price to be paid to the City
52 shall be determined according to the "Policy Regarding Purchase of City's Interest in
53 Streets Pursuant to Street Closures," approved by City Council. Copies of said policy
54 are available in the Planning Department.
55
56 2. The applicant shall resubdivide the property and vacate internal lot
57 lines to incorporate the closed area into the adjoining parcel. The resubdivision plat
58 must be submitted and approved for recordation prior to final street closure approval.
59
60 3. The property to be incorporated into the adjacent parcel to the west
61 shall be limited to 2.7 square feet / 0.000062 acre, more or less, as shown on the
62 submitted surv,ey.
63
64 4. There shall be no additions constructed to the existing deck or
65 building within the area proposed for closure and there shall be no new structures built
66 within the area proposed for closure.
67
68 5, The applicant shall verify that no private utilities exist within the
69 right-of-way pmposed for closure. Preliminary comments from the utility companies
70 indicate that there are no private utilities within the right-of-way proposed for closure. If
71 private utilities do exist, the applicant shall provide easements satisfactory to the utility
72 companies.
73
74 6, Closure of the right-of-way shall be contingent upon compliance
75 with the above stated conditions within one (1) year of approval by City Council. If all
76 conditions noted above are not in compliance and the final plat is not approved within
77 one (1) year of the City Council vote to close the street, this approval will be considered
78 null and void.
79
80 SECTION III
81
82 1. If the preceding conditions are not fulfilled on or before October 26,
83 2010, this Ordinance will be deemed null and void without further action by the City
84 Council.
85
86 2. If all conditions are met on or before October 26. 2010, the date of
87 final closure is the date the street closure ordinance is recorded by the City Attorney.
88
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89 3. In the event the City of Virginia Beach has any interest in the
90 underlying fee, the City Manager or his designee is authorized to execute whatever
91 documents, if any, that may be requested to convey such interest, provided said
92 documents are approved by the City Attorney's Office.
93
94 SECTION IV
95
96 A certified copy of this Ordinance shall be filed in the Clerk's Office of the
97 Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the CITY
98 OF VIRGINIA BEACH as "Grantor" and MCRJERS, LLC, as "Grantee."
99
100 Adopted by the Council of the City of Virginia Beach, Virginia, on this
101 day of , 2009.
102
103 THIS ORDINANCE REQUIRES AN AFFIRMATIVE VOTE OF THREE-
104 FOURTHS OF ALL COUNCIL MEMBERS ELECTED TO COUNCIL.
CA10751
V:\applications\citylawprod\cycom32\Wpdocs\DO 13\P006\00028663. DOC
R-2
October 14, 2009
APPROVED AS TO CONTENT:
APPROVED AS TO LEGAL SUFFICIENCY:
llluo., ~ V\t1MlWw
City Attorney
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COAS1'AL LIVING BUILDERS
Mop ~~Ptc~~~]e Coastal Livine Builders. LLC
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Subdivision Variance
Relevant Information:
· Beach District
. The applicant requests a Subdivision Variance to allow the division
of thllt property into two parcels for the development of two single-
family dwellings.
. The applicant proposes to relocate the existing one-story dwelling
onto the proposed corner lot (Lot A1) fronting Caribbean Avenue. A
second dwelling one and half stories in height fronting on
Greensboro Avenue is proposed to be built on the interior lot (Lot
A2).
. The "ariance is required because the corner lot is only 55 feet wide
rather than the required 60 feet.
Evaluatioln and Recommendation:
· Planning Staff recommended approval.
· A mClltion to approve the application at the Planning Commission
failed due to a tie vote (5-5-1). There is, therefore, no
recommendation from the Commission on this item.
· Them was opposition.
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CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: COASTAL LIVING BUILDERS, L.L.C./ WILLIAM T. KILEY & HELEN R.
PAXTON, Subdivision Variance, 800 Greensboro Avenue. BEACH DISTRICT
MEETING DATE: October 27,2009
. Background:
On September 22, the City Council deferred this item for 30 days to provide the
applicant and the community time to further discuss the request.
The subject site consists of four platted lots. The lots are nonconforming in this
R-5S Residential Single-Family District, as the lots lack the required 50 feet of
width. Three of the lots have a width of 25 feet and the corner lot has a width of
30 feet. Each lot is 100 feet long and the entire site has a lot area of 10,492
square feet. The R-5S District requires a lot area of 5000 square feet.
It is the intent of the applicant to resubdivide the four combined lots into two
parcels for the development of two single-family dwellings. The interior lot (Lot
A2) at 50 feet by 100 feet will be in conformance with ordinance requirements.
The corner lot (Lot A1) at 55 feet by100 feet will not conform to Section 4.4(c)(1)
of the Subdivision Ordinance that requires corner lots to be platted at least ten
(10) feet wider. To create the corner lot, a variance to the required lot width is
needed and is being requested by the applicant.
The Comprehensive Plan specifically addresses infill residential development on
substandard lots in the Shadowlawn neighborhood by providing "lnfill
Development Guidelines for Shadowlawn." The Guidelines make specific
recommendations on height, width, and proportion of new structures, as well as
setbacks and relationship to the street. Building materials and architectural detail
are also addressed. Following the guidelines is critical to ensuring aesthetically
successful, compatible infill on lots that do not meet current lot width or area
requirements.
. Considerations:
There is an existing single-family brick ranch oriented diagonally across the
property. The applicant proposes to move this existing one-story dwelling onto
the proposed new corner lot (Lot A 1) such that the dwelling will front on
COASTAL LIVING BUILDERS, L.L.C.
Page 2 of 2
Caribbean Avenue. The applicant proposes a second dwelling, 1 % stories in
height, fronting on Greensboro Avenue for the interior lot (Lot A2).
The applicant submitted an architectural elevation showing how the existing one-
story ho me will be improved after it is repositioned onto proposed Lot A 1. The
elevation shows that a front porch will be added and new architectural details
incorporated to include shake-look siding, new doors and windows. An
architectural elevation was also submitted for the proposed home on Lot A-2.The
architectural elevation identifies the building materials as architectural shingles,
simulated hand-cut shake siding, and horizontal lap siding, prairie or craftsman
style doors and windows, and brick base.
Staff finds that the applicant has developed a proposal that satisfies the
regulations and the design guidelines to the greatest extent possible and thus
ensures compatibility of the structures to the neighborhood. The two subject lots
are consistent with the overall lot pattern in the community and meet the
requirements of the R-5S zoning district applicant except for the fact that the
corner lot is five feet short of meeting the requirement for a corner lot. The
applicant's effort to design the site and buildings such that the combined
development does not negatively impact the overall character of Shadowlawn
does much to overcome the five foot deficiency in lot width.
There was opposition to this request.
. Recommendations:
Due to a 5-5-1 vote, the Planning Commission has no recommendation to
forward to the City Council.
. Attachments:
Staff Review and Disclosure Statement
Planning Commission Minutes
Location Map and Summary
Recommended ,~ction: Staff recommends approval. Due to a tie vote, the Planning
Commission has no recommendation.
Submitting Department/Agency: Planning Department
City Managen:::::~\ \L , O(j~
Map M-7
Mop Not to Scol~
Subdivision Variance
1'1 I
9
August 12, 2009 Public Hearing
APPLICANT:
COASTAL liVING
BUilDERS, llC
PROPERTY OWNER:
WilliAM T. KilEY
& HELEN R.
PAXTON
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 and Section 4.4(c) of the Subdivision Ordinance that corner
lots must meet requirements of the City Zoning Ordinance.
ADDRESS I DESCRIPTION: 800 Greensboro Avenue.
GPIN:
2417916180000
ELECTION DISTRICT:
BEACH
SITE SIZE:
10,492 SF
AICUZ:
70 to 75 dB DNL
APPLICATION HISTORY: This application was requested by the applicant for deferral on July 8,2009 and
deferred by Planning Commission. The staff report recommended denial. The applicant met with staff to work
on the style and design of the proposed dwellings.
SUMMARY OF REQUEST
Existing Site: The existing property consists of four platted
lots. The lots are nonconforming in this R-5S Residential Single-Family District. Three of the lots have a
width of 25 feet and the corner lot has a width of 30 feet. Each lot is 100 feet long and the entire site has
a lot area of 10,492 square feet. The R-5S District requires a lot width of 50 feet and lot area of 5000
square feet.
Proposed Development: It is the intent of the applicant to resubdivide the property into two parcels for
the development of two single-family dwellings. Currently, there is an existing single-family brick ranch
located diagonally across the property. The applicant proposes to relocate this existing one-story dwelling
onto the proposed corner lot (Lot A1) fronting Caribbean Avenue. A second dwelling one and half stories
in height fronting on Greensboro Avenue is proposed to be built on the interior lot (Lot A2).
COASTAL LIVING BUILDERS LLC I
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 1
The interior lot (Lot A2) at 50 feet by 100 feet will be in conformance with City requirements. The corner
lot (Lot A1) al: 55-feet by1 DO-feet will not conform to Section 4.4(c)(1) of the Subdivision Ordinance that
requires corner lots to be platted at least ten (10) feet wider.
The applicant submitted an architectural elevation showing how the existing one-story home will be
improved aftelr it is repositioned onto proposed Lot A1. The elevation shows that a front porch will be
added and new architectural details incorporated to include shake-look siding, new doors and windows.
An architectul"al elevation was submitted showing a 1 1/2-story home to be built on proposed Lot A-2.The
architectural olevation identifies the building materials as architectural shingles, simulated hand -cut
shakes and horizontal lap siding, prairie or craftsman style doors and windows and brick base.
~
I1em Lot A1
ot Width in feet (corner lot) 60 55 *
ot Area in SQuare feet 5,000 5,492
*Variance required
R-5S District and Shadowlawn Neighborhood History: The Shadowlawn neighborhood, zoned R-5S
Residential Single-Family District, has a unique history and unique regulations regarding nonconforming
lots. Platted in the early 1900's, the majority of the lots were established with a lot width of 25 or 30 feet
and a length (If 100 feet. Lots were purchased in groups of three or four and developed with one-story,
brick ranch hcmes. In the late 1970s and early 1980s, this neighborhood, located near the Oceanfront,
became very desirable and property values elevated to the point that owners began selling off their extra
lot or lots. Infill development, usually consisting of tall homes on narrow lots, was not consistent with the
character of the neighborhood. A special amendment to the Zoning Ordinance pertaining to
nonconforminq, substandard lots in the R-5S District and in 1983, the R-5S District was amended to
prohibit nonconforming lots from being sold separately and developed where two or more contiguous lots
are held in common ownership. The old, small lots must be combined to meet the frontage and area
requirements of the R-5S District. These regulations were changed for a brief period to allow
development, under certain circumstances, on resubdivided 35-foot wide lots. The results were viewed
as negative and the regulations were revised a third time back to the 1983 regulations, and development
on substandard lots is now prohibited where contiguous lots are owned by the same entity. Infill
Development Guidelines for Shadowlawn were also adopted as part of the Comprehensive Plan.
LAND USE AND ZONING INFORMATION
EXISTING LAND USE: Single-family dwelling
SURROUNDING LAND North: .
USE AND ZONING:
South: .
East: .
West: .
Across Greensboro Avenue are single-family dwellings/ R-5S
Residential District
Single-family dwellings/ R-5S Residential District
Across Caribbean Avenue are single-family dwellings/ R-5S
Residential District
Single-family dwellings/ R-5S Residential District
COASTAL LIVING BUILDERS LLC /
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Pa~e 2
i I
1,1 I
NATURAL RESOURCE AND
CULTURAL FEATURES:
There are no significant natural resources or cultural features on this
site.
IMPACT ON CITY SERVICES
MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): The
subdivision streets of Greensboro Avenue and Caribbean Avenue in the vicinity of this location are both
residential streets with a 50-foot right-of-way. There are no CIP projects scheduled for any of the surrounding
streets in this area.
TRAFFIC: Street Name Present Present Capacity Generated Traffic
Volume
Greensboro No data 6,200 AOT 1 (Level of Existing Land Use ;l -
Avenue Service "C") 1 0 AOT
9,900 AOT 1 (Level of Proposed Land Use 3 -
Service "0") - Caoacitv 20 AOT
Caribbean Avenue No data 6,200 AOT (Level of
Service "C")
9,900 AOT 1 (Level of
Service "0") - Caoacitv
Average Daily Trips
2 as defined by one single-family home
3 as defined by two single-family homes
WATER: This site currently connects to City water. The existing S/8-inch meter (City 10 #94011343) can be
used or upgraded to accommodate the proposed development. The newly created lost must also connect to
City water. There is a 6-inch City water line in Greensboro Avenue. There is a 6-inch City water line in
Caribbean Avenue.
SEWER: This site currently connects to City sanitary sewer. The newly created lot must also connect to City
sanitary sewer. Analysis of Pump Station # 120 and the sanitary sewer collection system is required to ensure
future flows can be accommodated. There is an 8-inch City gravity sanitary sewer main in Greensboro
Avenue. There is a 10-inch City gravity sanitary sewer main in Caribbean Avenue.
FIRE: No Fire Department comments at this time.
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.
COASTAL LIVING BUJLDERS LLC /
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 3
B. The authorization of the variance will not be of substantial detriment to adjacent property,
and the character of the neighborhood will not be adversely affected.
C. The problem involved is not of so general or recurring a nature as to make reasonably
practicable the formulation of general regulations to be adopted as an amendment to the
ordinance.
D. The hardship is created by the physical character of the property, including dimensions
and topography, or by other extraordinary situation or condition of such property, or by
the use or development of property immediately adjacent thereto. Personal or self-
inflicted hardship shall not be considered as grounds for the issuance of a variance.
E. The hardship is created by the requirements of the zoning district in which the property is
located at the time the variance is authorized whenever such variance pertains to
provisions of the Zoning Ordinance incorporated by reference in this ordinance.
EVALUATION AND RECOMMENDATION
Recommend ation:
Staff recommends approval of this subdivision variance request with conditions as provided below.
Comprehensive Plan:
The Comprehensive Plan specifically addresses infill residential development on substandard lots in the
Shadowlawn neighborhood by providing "'nfill Development Guidelines for Shadowlawn." The Guidelines
make specific recommendations on height, width and proportion of new structures, as well as setbacks
and relationship to the street. Building materials and architectural detail are also addressed. Following the
guidelines is critical to ensuring aesthetically successful, compatible infill on lots that do not meet current
lot width and/or area requirements.
Evaluation:
The applicant has worked with staff to reduce the height of the proposed two-story dwelling to a one and
a half-story coastal design, which is consistent with the recommendations of the "'nfill Development
Guidelines for Shadowlawn." More than any other neighborhood in the City, Shadowlawn worked to have
strict regulations and design guidelines adopted to protect them from infill on substandard lots and this
history needs to be respected. The applicant, therefore, has developed a proposal that satisfies the
regulations and guidelines to the greatest extent possible and thus ensures compatibility of the structures
to the neighborhood. The two subject lots are in every respect consistent with the lot pattern in the
community and meet the requirements of the R-5S zoning district applicant except for the fact that the
corner lot is five feet short of meeting the requirement for a corner lot. The applicant's effort to design the
site and buildings such that the combined development does not negatively impact the overall character
of Shadowlawn does much to overcome the five foot deficiency in lot width.
Staff, thereforEl, recommends that the application be approved with the following conditions.
COASTAL LIVING BUILDERS LlC /
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 4
: I
1'1 I
CONDITIONS
1. When the property is subdivided, it shall be subdivided in substantial conformance with the plan
entitled, "Resubdivision Exhibit of Lots 2, 4, 6 & 8, Block 56, Shadowlawn Heights for Coastal Living
Builders LLC," prepared by Kellam Gerwitz, dated June 25,2009, which has been exhibited to the
Virginia Beach City Council and is on file in the Planning Department.
2. When the property is subdivided, Lot A1 shall be in substantial conformance with the front elevation of
the proposed ranch entitled "Greensboro; Coastal Living Builders; Va Beach, VA" which has been
exhibited to the Virginia Beach City Council and is on file in the Planning Department.
3. When the property is subdivided, Lot A2 shall be in substantial conformance with the front elevation of
the proposed one and a half story dwelling entitled "Greensboro; Coastal Living Builders; Va Beach,
VA" which has been exhibited to the Virginia Beach City Council and is on file in the Planning
Department.
4. Development on the proposed lots shall adhere to the "Shadowlawn Infill Development Guidelines" as
provided in the Comprehensive Plan. At such time as development is proposed for these lots, floor
plans and building elevations shall be submitted for approval by the Planning Director or his designee.
NOTE: Further conditions may be required during the administration of applicable City Ordinances.
Plans submitted with this application may require revision during detailed site plan review to meet all
applicable City Codes and Standards.
COASTAL LIVING BUILDERS LtC /
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 5
AERIAL OF SITE LOCATION
COASTAL LIVING BUILDERS LLC I
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 6
VAR. WIDTH R/W
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COASl AL LIVING BUILOERS LLC I
WILLIAM I, KILEY & HELEN R. pA)(tON
Agenda \tern 9
Page 7
EX\ST\NG LOT EXHIB\T
EXISTING SITE PHOTOGRAPH
COASTAL LIVING BUILDERS LtC I
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 8
',1 I
GRAPHIC SCALE
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PROPOSED RESUBDIVISION EXHIBIT
COASTAL LIVING BUILDERS LLC I
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 9
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COASTAL LIVING BUILDERS LlC I
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 10
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COASTAL LIVING BUILDERS LtC /
WILLIAM 1. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 11
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Subdivision Variance
I Subdivision Variance
I Granted
11 l06f2:f/1997
ZONING HISTORY
COASTAL LIVING BUILDERS LLC /
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 12
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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 an officers, members, trustees.
partners, etc, below: (Attach list if necess8/Y)
Coastal Living Builders, LLC: George A Alcaraz, Managing Member; J. Winton
Brown, Member
2. Ust all businesses that have a parent-subsidiary' or affiliated business entiti
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)
William T. Kiley & Helen R. Paxton
2. List all businesses that have a parent-subsidiary1 or affiliated business entity2
relationship with the applicant: (Attach list if necessary)
X Check here if the property owner is NOT a corporation, partnership, firm,
business, or other unincorporated organization.
1 & ;: See next page for footno;;-
SubdJ'v+Slon Vanarce Apptc;nion
Page 10 d 11
RevIsed 9.'1 i2004
COASTAL LIVING BUILDERS LLC I
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 13
.-)
~ DISCLOSUU STATEMENT
~
ADDmONAL DISCLOSURES
List all known (1Ontractors or businesses that have or will provide services With respect
to the r,aquesled propertY .use, including but not limited to the proViders of architectuml
services, real estate services', financial seNices, accounting serviCes, and legal
services: (Attach list if necessary)
Sykes, Bourdon, Ahern & Levy, P.C.
M. Richard Epps, EsqUire
Kellam Gerwitz Engineering - Survey-ing - Planning
.1 .Parent-subsldlary relationship~ means "a relationship that exists when one
corporation directly or indirectly owns share-s 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-l;ubsldlary relationshjp, that.exists when (i) one business entity has a
col)trolling ownership Interest In the other business entity, (h) a controlling owner in
one entity is also a controlling owner in the other entity, or (Iii) ther:e i~ shared
managElment or control between the business entities. Factors that. should be
considered in detelTJlining the.existence of an affiliated business entity relationship
include that the same perSon or substantiallY the same person own or manage the two
entitles; there are common or commingled funds or assets; the business entities share
the use of the'same offices or employees Of otherwise share activities. resources or
personnel on a regular basis; or there is otherwise a close wort<ing relationship
between the entlties.- See State and Local Government Conflict of Interests Act, Va.
C9de ~ 2.2-3101.
CERTIFICATION: .1 certify that the infonnation contained herein is true and accurate.
. I underdand that, upon receipt of notification (postcard) that tJ)e application has been
sch~uled for public hearing, I am responsible for obtaining and posting the required
sign ori the subject proPerty at \east 30 days prior to the scheduled public hearing
aCCOrdln~gO lnst .ons In package.
Coa' ta:~ n ui LLC ~./J..4/_ _
B '. - (~/2//~
A t' Print Name
~ William T. Kiley
Helen R. Paxton
Print Name
Subdivision Vi rianc8 Appllcallon
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COASTAL LIVING BUILDERS LLC /
WILLIAM T. KILEY & HELEN R. PAXTON
Agenda Item 9
Page 14
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1'1 I
Item #9
Coastal Living Builders, L.L.c.
Subdivision Ordinance
800 Greensboro Avenue
District 6
Beach
August 12, 2009
REGULAR
Janice Anderson: We will now address the last two matters on our agenda today.
Donald Horsley: The next item on our agenda is item 9, Coastal Living builders. L.L.C./
William T. Kiley and Helen R. Paxton. An application of Coastal Living Builders, L.L.C. for a
subdivision variance on property located at 800 Greensboro Avenue.
Eddie Bourdon: Good afternoon Madame Chairman. For the record, I'm Eddie Bourdon, a
Virginia Beach attorney representing the applicant. With me, also, is Mr. William Brown and
George Alcarez, who are the principals of the applicant. I'm going to go over this math in a few
minutes. I would like to pass out, and I'm sorry for the size. Wish you all had seen this and took
a look at it earlier. I'm going to spend some time describing what is depicted on this composite
map ofthe City of Virginia Beach of this particular area of this neighborhood. First of all, the
subject property consists of four lots that were platted 85 years ago. A 30-foot wide by a 100-
foot corner lot, and three interior lots that are 25-feet wide by 100-feet wide. It's outlined in pink
from this map, and also on the map you will note, there is a legend over here. Shadowlawn
consists of a number of different block patterns. Those block patterns were created 85 years ago,
consisting oflots in the gold blocks that are 30-foot wide by 100-foot across the board. These
are corner lots. They are all30-feet by 100-feet. Yellow blocks have corner lots that are 45-feet
wide as platted with 30-foot wide interior lots, again by 100-feet. Pink blocks which are the
subject properties in the pink block. There are a number of the pink blocks that have corner lots
that are 30-feet wide by 100-wide with 25-foot by 100-feet interiors lots. There are two purple
blocks which have corner lots that are 25-feet wide by 100-feet and interior lots that are 20-feet
by 100- feet. That is what this map is showing you, the pattern of the way the subdivision was
divided, and these are the maps. The old subdivision maps that may have been applied under the
City's composite map, it is an excellent job. They spent hours and hours on this, and I have 20
years of working with this situation in Shadowlawn, which I had all the resources to do this. I
will talk about the map in a minute. That is what that map is, and I'll pass it around. But I want
to talk about one of the handouts that I gave you. That is the zoning ordinance for the City of
Virginia Beach, applicable to this application. The zoning ordinance which you have in front of
you I have highlighted a couple of things. Number 3 talks about minimum lot width in feet for
lots. R-5S requires a 50-foot wide minimum lot width. That is what the Zoning Ordinance
requires, 50-foot lot width. You drop down to number 6, you will see a highlight at the end what
the required side yard setback are for corner lots. Excuse 6 is just the standard setbacks of 5 and
10 for all lots in R-5S. And then you got the other setbacks in all the other zoning categories,
which I've underlined because they are pertinent to what I'm going to say. Paragraph 7 talks
about minimum side yard setbacks adjacent to streets in feet. So, if you have a corner lot side
Item #9
Coastal Living Builders, L.L.C.
Page 2
adjacent to a street, the required setback is much greater across the board, if you looked at
number 7. Look across the board, you will see with every zoning category with the exception of
R-5S, the side yard setback adjacent to the street is anywhere from lO-feet to I5-feet to 20-feet
greater. You are required to have a greater side yard setback adjacent to as street for every
zoning category other than R-5S that is a minimum IO-feet greater setback, and in some cases 15
and 20 foot greater setback. That is what your zoning Ordinance says, and that is the applicable
part of what were dealing with today, and when you look at the other handout dealing with the
situation with 9 cDnforming lots in Shadowlawn, which only applied to Shadowlawn, I will come
back to that but what the other handout is about.
Kathy Katsias: VIe only have one.
Karen Lasley: There were two different pages.
Eddie Bourdon: 1'm sorry. There were two separate groups of handouts. I apologize. You have
a second handout which deals with the non-conforming lots in Shadowlawn. While that is being
passed around, I'll make an observation. A number of you were on this Commission a couple of
years ago when the idea was floating out about trying to make smaller conforming lots non
buildable throughout the city. The word "mob" comes to mind since we're dealing with the
healthcare situation, you all heard an earful when you tried to do that to people property's rights.
The history of Shadow lawn is interesting in that back in 1983, without any notice to anyone this
provision that I passed around was enacted, which basically took away people who had these
non-conforming lots. Some had three non-conforming or four in the blocks, you had even more
than that. To sell off property that was worth a lot of money to them and that lasted about 9 years
before it was discovered, and then when it was discovered, we went through a process including
Mrs. Parker, who was the Council person who enacted that, Mr. Branch, and a lot of City
leaders. It took un about a year, and lot of meeting with the community. What had happened
was a lot ofthese non-conforming lots were being built on. Non-conforming being less than 50-
feet being built or., and the Council said that wasn't right. They provided a window for people
who were in that position to be able to utilize their property rights. That window was open for
about 10 years. In 2003 or thereabouts, it was closed. The idea being that everyone that had
non-conforming had their opportunity to achieve that. I didn't object to it. Neither did other
people at the time, The reason being that situations like this were never part of what was being
discussed, never a part in any way, shape, manner or form. It was always about 30-foot lots, 25-
foot lots, 40-foot lots, which are all on here in different places that people were separating out
and building on. Never was there any indication that we were worried about people building on
55-foot wide corner lots in Shadowlawn. The reason being that 55-foot wide corner lots in
Shadow lawn had 1:he exact same building envelope when you apply the corner setback as an
interior lot in R-5S because there is only a five foot greater setback requirement on a corner lot in
the R-5S zoning category. At no point in time was it ever anybody's intention in the subdivision
ordinance, which ,:hat came later, where the idea was put in there. The Subdivision Ordinance to
make comer lots 1 0- feet greater in width. That 10- foot greater width was to avoid a small corner
lot resulting in houses that were small and narrow in relation to the interior lots. That doesn't
happen in Shadowlawn. And it was never the intent under anybody's scenario that we were
suppose to create wider corner lots in Shadowlawn, wider than the interior lots. That's the only
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Item #9
Coastal Living Builders, L.L.c.
Page 3
argument against this that if a corner lot should be 60- feet to create a 40- foot building envelope,
first it is a 35-foot building envelope, which is the building envelope on every interior lot that is
platted in accordance with the ordinance. Never was it intended to make the lots bigger on the
corner. And, that's the part that is so difficult. The other provision I provided you is talking
about non-conforming lots. If you actually read it literally and read number 3, it doesn't apply to
what we're doing here. We have four lots, none of which are being split. They are not being
divided down the middle. Four lots, two that total 55, two that total 50 by 100. They meet the
requirements except for that subdivision provision that is intended to make sure that lots are not
too narrow, which is more than adequately satisfied in Shadowlawn to begin with. This is the
only place where R-5S applies, so we got a situation here where we're not doing anything other
than selling two lots and two lots. We're not making new lots, not dividing anything up. If you
read number 3, it says "the owner of contiguous substandard lots is prohibited from conveying
one or more of the substandard lots with the results that both there grantors and the grantee
possess lots entitled to an exception from the minimum lot requirements". Well the interior lot
here meets every requirement period. No argument whatsoever. The exterior or corner lot again
isn't technically 60-feet as the Subdivision Ordinance would require but meets every intent of
our Zoning Ordinance. And the reason for that 10- foot additional width on the corner lots in the
Subdivision Ordinance is more than adequately met. Now, I'm going to pass this map around. I
wish you all had a chance to look at it, and spend some time looking at it. In the pink blocks, the
ones that have 30-foot (interior) 25-foot corners, for a total of 55, there are 27 total corner lots.
Of those 27 total comer lots, 23 of27 today have homes built on 55-foot wide corner lots. None
of them had to get a variance because no one ever conceived the fact that they need a variance.
The other four, one is zoned apartment. It has an apartment building on it, down close to Pacific
Avenue. Two are a combination of three lots, 85-feet of frontage that cannot conceivably be
subdivided. And there is ours. Ours will be the 24th that is exactly like the other 23 in those
exact same blocks that I'm talking about. The ones that have the pink outline that of the 30-foot,
25-foot dimension in terms of their frontage. That is the only thing that is happening here. Now,
there are within Shadowlawn four corner lot properties that are on 50-foot wide lots. And there
are 13 corner lot properties on less than 50-feet of frontage. There are over 90 non-conforming
that are less than 50-feet in size and less than 5,000 square feet but there are none in the pink
blocks. In the pink blocks there are zero lots that are less than 5,000 square feet developed. Less
than 50-feet developed but in the rest of the subdivision, I think there are only two other blocks
that don't have lots that have less 50-feet in size. These are the cleanest blocks, the pink blocks
are actually the cleanest blocks because they really do, when you combine them in a series of
two, do comply with R-5S zoning. They are the poster child for R-5S zoning.
Janice Anderson: Eddie, can we wrap it up? I'll give you a little more time.
Eddie Bourdon: I apologize. I will make a brief. I'll finish it up. There are 119 total corner lots
that are combinations of two lots as originally platted or resubdivided to be less than two lots by
combination. And that is the overwhelming majority. The pattern throughout the neighborhood,
and not just the pink blocks, is that the corner lots as developed are two lot combination. That is
the case in every color coded block within Shadow lawn. And, the real irony here is that we
don't believe this even applies. I should have taken this to the Board of Zoning Appeals and to
court, but the idea here is that no good deed goes unpunished. We came this route because we
Item #9
Coastal Living Builders, L.L.C.
Page 4
were willing to abide by the design guidelines for Shadowlawn. Those design guidelines for
Shadowlawn ladies and gentlemen were adopted by this body and City Council for the purpose
of having houses on 35 and 40-foot lots be fitting to neighborhood. Never was it ever adopted
for 50-feet or 55-feet lots. We agreed from the get go to let that apply to our 50-foot interior lot
that meets every requirement and or 55-foot corner lot that does as well because that was icing
on the cake. But there is not one of those other lots the same as us that's been treated. We
should be treated the same as every one ofthose cases. That's the bottom line. We're doing
something that none of those is required to do and that is tell what we are going to build, show
you what we're going to build and it's an appropriate. We're using the house that is on the
property on the corner lot. No setback variances are required, nor should there ever be any
because it meets the requirements. Sorry for running on, but this is not a non-conforming
situation in any sense from a logical rational basis. Only from a standpoint of we want to stop
somebody being able to use their property in an equitable fashion. This is what is occurring
here. It is not going to be precedence. It's the only one that can happen without splitting lots up
in an existing lots, and reconfiguring lot lines. Even if you do that, there is only about four or
five in the whole of Shadow lawn that you can get a similar 55-feet, 50-feet that isn't already that
way in the whole of Shadowlawn. Thank you.
Janice Anderson: thank you.
Eddie Bourdon: I'll be happy to answer any questions.
Janice Anderson: Are there any questions of Eddie now? Jay?
Jay Bernas: Did you get a chance to meet with any of the property owners to show them the
elevations?
Eddie Bourdon: No, Mr. Bernas, that's really unfortunate. We made effort after effort, and I
understand that they don't meet during the summer. They didn't want to convene to meet in the
summer. My history with the community and it goes back a long ways. If you can get them out
to a meeting they are very fair minded reasonable people, and I think if they saw what we were
talking about and understood what we were talking about we wouldn't have any opposition to
speak of. I think we have an overwhelming amount of support. We couldn't get a meeting. We
tried, tried and tried. They decided they didn't want to meet during the summer. People can't
hold their lives in advance during the summer.
Janice Anderson: Are there any other questions of Eddie? Thank you.
Eddie Bourdon: Thank you.
Donald Horsley: I don't have any other speakers in favor. I have one speaker in opposition.
Jeff Knowles.
Jeff Knowles: Me:nbers of the Commission, my name is Jeff Knowles. I live at 915 Goldsboro
Avenue, and I have lived in Shadowlawn for 22 years. I hope I at least have another 22 years. I
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Item #9
Coastal Living Builders, L.L.c.
Page 5
love the place. As Mr. Bourdon mentioned, this neighborhood has presented a lot of challenges
to the Planning Department, and the Zoning Department through the years. In 2002 - 2003, our
neighborhood came together and filled these chambers and asked City Council to get rid of the
non-conforming lots that Mr. Bourdon mentioned. At the time, you could subdivide property as
long as you had two conforming lots of 50-feet wide, you could have third 35-foot lot. Along
with the 35-foot lot, the setbacks changed from 5 & 10 to 5 & 5. And we were here because
there were several developers that were consistently buying one house on a corner lot, not even
on a corner lot, tearing it down and building two, typically three, two or three story houses,
obviously much more dense. Along with the houses, the trees were coming down in our
neighborhood. I am sure that most of you have been through it. Weare well known for our tall
pines and beautiful neighborhood. Trees were coming down as well. We talked to City Council.
Again, filled the chambers and City Council agreed, and they got rid of those non-conforming
lots. The application before you today is not asking for a 35-foot lot, but to my knowledge it is
the first one since 2003 that is asking for a variance in the required widths of lot. I was surprise
to see that staff, who originally opposed this change their opinion and now are recommending
approval based on the design that the developer came to them with. They changed, I believe,
some of their scale of their project so it would be more compatible with the adjacent houses and
the neighborhood. This is a design issue. I'm sure it is a beautiful design that they had. In fact,
I've seen the elevations. It's great. But this is a variance request oflot width that would increase
density in our neighborhood, which we are a very dense neighborhood as it is. Mr. Bourdon
mentioned that there are not many lots that this can occur on again but I disagree. Because of the
unique nature of the neighborhood, there are 20,25 and 35- foot lots. It may require that a
builder to come in and buy two houses to build four. Maybe with that five foot variance but it
can happen again. If my neighbor wants to sell his house and move out of the neighborhood,
which for the life of me I can't understand why, because I love it. I had a lot of friends move out
and come back, then I hope he gets absolutely as much as he can for his house. If the developer
wants to buy this house or others and develop in the neighborhood, that's great. I hope they make
a great profit, but they need to be creative and think out ofthe box and work within the
constraints of the present Zoning Ordinance, change materials, do additions, add landscaping,
anything that could improve the character of the house. Again, they can make a good profit. I
want them to. I am a businessman and a builder as well, and I know what it is all about. Our
neighborhood spoke very loudly in 2002 that we didn't want to increase density and that is why
I'm here today. I ask that you all send a message to City Council and unanimously reject this
request with the note that we heard Shadowlawn. We've read the letters opposing this, and we
agree that Shadowlawn is dense enough, and we oppose this application. Thank you.
Janice Anderson: Thank you Jeff. Are there any questions of Jeff Knowles? Thank you.
Donald Horsley: No other speakers.
Janice Anderson: No other speakers. Eddie?
Eddie Bourdon: Thank you. As I indicated earlier, I think that Mr. Knowles, who I have respect
for, acknowledged he wasn't around back in the early 90s. But the entire discussion at all times
has always involved 35-foot or 40-foot lots in Shadowlawn. At no point in time, and I'm
Item #9
Coastal Living Builders, L.L.C.
Page 6
absolutely 100 percent confident that at any point in time there would have been no movement
that would have gotten City Council approval to suggest that no one would have believed that
this was intended to stop people from building on 55-foot wide corner lots, and that is exactly
what exists here and at every pink block in Shadowlawn (pointing to map). That was never
discussed by anYJody at any point in time, and I, 100 percent believe that a fair amount of people
that have the facts and know the facts and the facts are: there are no other opportunities because
there are none like this in Shadowlawn. And the ones that Jeff is talking about, again maybe four
or five at most involve other situations where you are dividing existing lots and vacating
property lines, which we are not even talking about doing here. Again, the 10- foot wider corner
lot provision in the Subdivision Ordinance is there for one purpose and one purpose only to help
ensure that the building envelopes on corner lots are close to the same size as building envelopes
on interior lots. And at no point in time was it ever the intent of the Subdivision Ordinance
requirement for lO-foot wider corner lot to provide a larger building envelope for corner lots
than on interior lots. Never was the intent. Yet, that is what some in this area, and I think if
everyone knew the facts it would be a minority in this area are arguing now. That is plainly
wrong, and it is inequitable. Equity is even magnified by the fact that the owners in this case
have agreed to build a smaller home on the conforming 50-foot wide interior lot in accordance
with the guidelint:s that were developed for small lots not for 50-foot wide lots. And the same is
true on the corne! lot where they are going to have a one-story ranch that is on the property now.
They are going to upgrade that. It shouldn't, frankly, I don't believe it should have been here for
a variance in the 1irst place but we figure since we're going to go beyond that, what's the harm,
and then were getting hit with arguments that don't even apply to what we're talking about doing
here. This is not a situation where you're trying to put an inferior lot into Shadowlawn and put a
shotgun house on an inferior lot, which are all the arguments that were before this original
change. That is not this at all. It is turning the whole situation on its ear in terms of the logic and
the reason for the regulation. The regulation is being used for a purpose it was never intended
for by the opposition that is speaking, but again, they weren't meeting to talk about it and let the
facts come out. Staff is 100 percent correct in its recommendation. They now understand totally
the facts ofthe circumstance, which we hadn't given them enough information that they were
getting the benefit of the guidelines the first time around. That was the reason for the
recommendation now because we didn't give them enough information that the houses,both of
them would be conditioned, even though on the conforming lot adhering to the guidelines, and
we have now done that. That is the reason why they did absolutely the right thing and
recommended approval. Thank you for your time.
Janice Anderson: Thank you. Are there any questions of Eddie? Okay. I'll go ahead and open it
up for discussion. I guess I'll start with mine. In review of this application, as you all know I
live in the area, and I've read over the letters from the neighbors. Just the ones that we have
here, there are 16 letters from 16 residents. As Eddie mentioned, the Civic League doesn't meet
during the summer. The president is very busy so they just don't meet. It meets quarterly
anyway. So, unfortunately all the news went through emails back and forth, and I believe those
emails were given to Mr. Bourdon. I think he tried to email back some of the people that had
responded negatively. And, if! could say, all the people that did make some comment for the
variance. I unden.tand what Mr. Bourdon is saying. There are different lot sizes, different
property. It is all',mder one zoning. It does require 60-foot corner and interiors are 50-feet. All
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Item #9
Coastal Living Builders, L.L.c.
Page 7
the letters of opposition are not because they could have been swayed by design or anything like
that. Their opposition is two houses where one is. It is clearly a density thing. Everybody
(Planning Commissioners) went by on the van trip and saw the one site. They are going to put
two houses there. That is what the opposition is. The issue with it is not going to occur again. I
do disagree. If you look at the Caribbean Street, as Mr. Bourdon has outlined there, down
Caribbean, the corner lots originally were platted larger so it is to have larger lots, in my opinion,
the larger lots down the main street that goes down Caribbean and Rudee. If you look at it, he
has highlighted for us the areas, the corner lots closest coming off Norfolk Avenue are 60-foot in
width. That is the minimum required. rfyou go further, a majority of them are 75-feet. Those are
the yellow lots. And then when you get down to the end, there are in this block there are a
couple of older platted 55-foot corner lots. Now these were done over 30 years ago or purchased
over 30 years ago. These are whether you want it or not, these are the still existing substandard
lots that can be built on. That is what the infill Shadowlawn is. There is a 35-foot lot right next
to my house that is not built on. They can build on it. It is a buildable lot. They don't need a
variance and that is where the infill directions are going. This is not a variance. It doesn't meet
the hardship. I have looked at it and I found out there are at least six other lots that are 105 width.
Now there are different combinations but they can, if this is allowed, they can reconstruct. Why
can't you build two houses on those? There are six existing. There are two other corner lots that
are 135-feet. They can do it by-right. So, the density can happen, and there are various others if
the builder buys so many lots than its five less feet they can add additional homes. The variance
is supposed to be something that is a hardship. The property is abnormal. They are square lots in
a pink. It does require a variance. I don't think there is no hardship there other than it would be
considered a financial hardship. The owners want leave the area. They want to sell the property
and get the most out of their property by getting two homes there. You got at least six others that
I've identified that have 105-feet right now. If that is the wish not to have this affected, then they
can go back and change the ordinance for Shadow lawn, if that is what the community wants to
allow these smaller corner lots. I don't think it meets the hardship. The neighborhood doesn't
want to see it more dense. The land there in Shadowlawn has been over and over again, over
developed, they believe just because the price went up. You can read some of the letters from
some of the neighbors that have been there for 45 years. They had a house. This is how it all
started. The houses were on six or eight lots, and they sold them all. They were able to do 35-
foot, and the neighbors came in and stopped that because it was getting to dense. Again, I cannot
see this variance. This is the first variance that I know of that is not by-right to go ahead and
make it more to dense. There was another letter from a neighbor that said her street has doubled
in capacity in the last ten years. Was there any variance required ofthat? No. It was all done
by-right. I just think if we start this variance you will see more of it. You will see more density,
and I don't think that it is so unique that it requires a variance because ofland issue or not
buildable. It is a single-family home. Mr. Knowles said it can continue a single-family home
like they are several105-foot corner lots that have single-family homes on it. Are there other
comments? Go ahead David.
David Redmond: I've been all over the map on this. r asked a question at the informal meeting
this morning, which was. r think he hit on it. What constitutes a hardship? And, Mr. Macali
took a decent swing at it. The answer that he essentially gave us is it is essentially undefined,
and that our judgment would have to inform that definition. I don't believe that. The way you
Item #9
Coastal Living Builders, L.L.C.
Page 8
look at it. Five feet is five feet. In my view, five feet is not 15 feet or 25 feet, and ifI'm trying to
figure out, in all fairness to these property owners based on the development patterns that have
evolved over the course of the better part of 100 years perhaps. Is it fair to them to have to
accept a fair amount less return on their property and an awful lot of neighbors? Is that fair to
them? I think ultimately that is our charge is fairness. I don't know that it is. Nonetheless, I am
not sure I see 3. hardship either. I think perhaps the rub is, and I wish there were a little bit more
flexibility in the ordinance. I'm not sure how to fix it frankly, except that were going to be
damned if we do and damned if we don't. I don't know that it is very fair to these people to live
with this but I don't find a hardship either. Maybe I'll figure it out in the next 5 or 10 minutes.
But it is not an easy one. I would hope that other people would throw in here. Jan spoke very
eloquently I think about what the neighborhood's concerns are. But I think you also have to be
fair that with this sort of fairness and rights that you would afford just about any owner. So, I
would ask that everyone balance that fairness question. I wish I could see more of a hardship
here, and I would support it. I would be interested in what other folks have to say about that.
Janice Anderson: Go ahead Ron.
Ronald Ripley: Jack, I got a question. On the design guidelines, I thought I remember the
design guidelines really applying globally to the neighborhood not necessarily just to 30-foot
lots. I think the intent of the guidelines so that the neighborhood would have a pretty clear
understanding, other people coming into the neighborhood a better understanding of what the
neighborhood desires. Can you speak of that?
Jack Whitney: That is correct. Neighborhood integrity as expressed in new construction and
infill development reconstruction was very important to the community and the staff. We spend
a long time in evaluating this request for a variance with that in mind. And as Mr. Bourdon
indicated at first the staff did not feel that there was enough information presented to describe the
outcome what would be placed on the property, in the event that variance was granted to give us
the comfort lev,d that the community, the integrity and the intent of the design guidelines would
be satisfied. There would not be adverse impact. The question is, and we believe, with the
additional information that the applicant provided at our request that was contained in your
packet does satisfy that. On the question of the hardship, on page 3 of your write-up beginning
at the very bottom of the page, there is a discussion an excerpt from the Subdivision Ordinance
that establishes the test for hardship. On that particular point of the application, the Commission
will need to determine in its mind whether or not the hardship test is passed after reviewing that
section of the Subdivision Ordinance. So yes, we feel that the guidelines address Shadowlawn,
as you say as more global content and that staff at the end of the review determined that the
proposed application conditioned and proffered as it is, would satisfy that concern.
Ronald Ripley: Jan, you mentioned that this is the only variance for this condition?
Janice Anderson: I'm not aware of any kind of variance. No.
Ronald Ripley: All others have been built by-right?
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Item #9
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Page 9
Janice Anderson: They were 40 something years ago. I'm not aware of any subdivision variance
on this.
Ronald Ripley: The staff did a good job working under the guidelines but the question I weigh
here is do we have opposition to density? I think staffhas done a good job if you want to build it,
with these design guidelines. They meet it. I think they did a nice job working with it. The
question that we have to weigh here is really the density, and is the opposition is how you weigh
that? That is where we are. That's what I'm wrestling with.
Janice Anderson: Is there any other discussion? Go ahead.
Joseph Strange: I agree with Ron. And I listened to Jan's argument. The other argument here I
think is I don't really think this changes the overall characteristic of the neighborhood. I don't
think makes the variance that much that is actually changes it. So, in that respect that it does
meet the test as far as changing the overall character in the neighborhood.
Janice Anderson: Okay. Is there any other discussion?
Donald Horsley: I look under the criteria that we using here for. It says that "no variance should
be authorized". It says the authorization of the variance would not be of substantial detriment to
adjacent property and character of the neighborhood would not be adversely affected. I guess
that is what Joe was saying. He didn't think it would be adversely affected and be a deterrent to
the adjacent property. So, I think that is where staff comes to this recommendation for approval.
They don't assume that either. Evidently there are several property owners there that do think it
will, like Ron said, that is what we are doing with that idea now. How do we defend that? I
personally don't really think it effects the neighborhood. The next one says reoccurring nature. I
think that staffhas done a good job of investigating this. If they don't think there is going to be
enough of that of a reoccurring nature. I don't think they would have recommended that. Is that
correct Mr. Whitney?
Jack Whitney: Yes sir. That is correct.
Donald Horsley: So, with that being said, I guess would support the application.
Janice Anderson: Go ahead AI.
Al Henley: Shadowlawn, as we all know, is a well established older neighborhood. It was
indicated that it was developed 85 years ago. A lot of the older residents that built houses there
are no longer here. Now their children, and in some cases, their grandchildren are moving back
into this neighborhood. It is a close neighborhood. It's a good neighborhood. Yes, it is dense.
But that is the way neighborhoods were planned out years ago. Eighty-five years ago, no one
thought that the City of Virginia Beach would evolve to the city that it is today. You try to
establish what is best for the neighborhood, and I think one of the most unfortunate times then
when a community is trying to express their concerns is to come out to a public hearing like this
because I cast a lot of my opinions on people's personal evaluation and comments on how it is
Item #9
Coastal Living Builders, L.L.c.
Page 10
going to affect their neighborhood. The gentleman came up, and he was brave enough to come
before us today, and express his concerns very well. I just wish Shadowlawn neighbors would
have done the same thing. I realize today with the economy with the way it is, it is difficult to
leave your job. In some cases, you may not be getting paid for your leave to come out to join us
at these sessions but if you really believe in your community, and you really believe in your heart
what you think i~; best for your community, I would take off work regardless what my pay scale
was, and I would be heard. You only heard from one individual personally. You got a number of
complaints in here in writing, which is good but it is not just Shadowlawn. I think every citizen
where we have a democracy needs to come out and exercise those God given rights. Ifwe don't
express those then how do we know how to serve you in the public's best interest. So, I've
looked at this. I'm going to support the application. I really don't think it is going to be a
detriment to the neighborhood, but I think in future applications, if more applications come up,
we need to look at those more carefully possibly and see what type of dwellings are going to be
replaced in these neighborhoods, and hopefully we can hear more from the community, if that
does occur. Thank you.
Janice Anderson: Thank you. Go ahead Gene.
Eugene Crabtree: I agree with a lot with what Al said. It bothers me a little bit that the Civic
League, even tho'lgh they don't meet in the summer didn't make some effort when invited not to
meet with the applicant to stand together and voice a concern from that venue. It also bothers me
a little bit that you got 35-foot lots that people can build on by-right that is being built on with no
problem, and yet we got a lot that is 55-foot, which is 20-foot wider, and we want to tell them
that they can't build on it. To me, from a common sense standpoint is that it is not right to let
somebody build on a 35-foot lot, and not let someone built on a 55-foot lot as long as the
structure is suitable, and is designed such as not to deter from the neighborhood. I don't think
that density, a house on a 55foot lot does not create more density than a house on a 35-foot lot,
so I don't see that density would be a problem. Therefore, I think I'm going to support the
application.
Janice Anderson: Thanks Gene. Is there anybody else? Go ahead.
Phil Russo: Madame Chair, I just wanted to advise that I will be abstaining as I have a client who
has an ownership interest in the property.
Janice Anderson: Okay. Kathy?
Kathy Katsias: I concur with my fellow Commissioners. I always feel like the neighborhood,
when you live in a neighborhood for 30 or 40 years, you really just love your surroundings.
And, I agree with Gene that if the Civic League had major concerns, they could of had a special
meeting, and they could have gotten together and voiced their concerns. On the other hand, I am
concerned that the: fact that are we setting a precedent here? How many lots did you say were
available? Six? Are we setting a precedent in giving them a variance, and are we going to have
six more applications with six additional variances for the developers to build additional homes?
I don't think, I mean the density in Shadowlawn already exists, and I don't think one house is
I'll
Item #9
Coastal Living Builders, L.L.c.
Page 11
going to over populate the neighborhood. I don't think there is a hardship here but I feel like I
would be supportive of the application because I feel like, even though we had all of these emails
not in favor of the application, we could have had response from the neighbors to come down
here and voice their opinions.
Janice Anderson: Okay. Ron.
Ronald Ripley: I'm going to take a different tack. I think the density needs to be looked at. I
think the' way this house is sited on it, that it is sited on a triangular to the corner. It is not sited
perpendicular to it. That is one thing that struck me that I liked about it when I saw it that
moving it creating two lots. I don't think I'm going to go for that. I think I'm going to oppose it.
Janice Anderson: Thank you. Go ahead David.
David Redmond: I still have been able to figure out the hardship and everybody has been, I
think heartfelt in their comments. I can either do this in both views. My view, however, Ms.
Anderson feels very strongly about. She knows the territory better than I do. And, I know that if
this was my neighborhood, my neighbors felt very strongly about something, and I felt very
strongly about something. It required a variance where there wasn't any obvious hardship, I
would feel kind of picked upon. I don't think that developing an extra house is going to bring
Shadowlawn to its knees. I don't think it would degrade the neighborhood. I think that it
probably looks like a terrific house. Nonetheless, they are awful riled up about it., and they are
riled up about it for reasons that I think all of us have probably shared at one point or other and
will probably share again. And, they feel very strongly about it. Unless, in some cases you can
get people to support a change, then may you ought not to have one, and as I said, I've seen this
now from 90 different angles. And perhaps, I'm flip-flopping more than I have in my entire life.
I'm going to defer to Ms. Anderson's judgment with regard to the density issue, which Ron
raised, and because we have to change something here, and there is a lot of opposition to do it.
And, I don't feel like the requisite expertise to say that she is wrong. They're wrong. Let's make
the change. Absent that hardship and I can't find it. So, I support denial of the application.
Janice Anderson: Are there any other comments? A motion
David Redmond: I make a motion that we deny the application.
Janice Anderson: A motion for denial by Dave Redmond. Is there a second?
Ronald Ripley: Second.
Janice Anderson: A second by Ron Ripley.
AYES
NAYS
ABS 1
ABSENT 0
ANDERSON
BERNAS
AYE
NAY
Item #9
Coastal Living Builders, L.L.C.
Page 12
CRABTREE
HENLEY
HORSLEY
KA TSIAS
LIV AS
REDMOND
RIPLEY
RUSSO
STRANGE
NAY
NAY
NAY
NAY
AYE
AYE
AYE
ABS
AYE
Ed Weeden: By Ii vote of 5-5-1 with the abstention so noted, the motion has failed.
Janice Anderson: Mr. Macali, if we do the other vote, if it is a yes, does the deny fall to
Bill Macali: Well, the State Code voiced interestingly enough that any action of the Planning
Commission must be taken by the majority of members present and voting. So, a tie vote
doesn't really do that, and unless someone was to change his or her vote, there really is not
recommendation for approval or denial of this variance.
Janice Anderson: Okay.
Donald Horsley: I guess we got off the hook didn't we?
Janice Anderson: So, it just goes forward'with that?
Bill Macali: Unless someone wants to move to reconsider.
Eugene Crabtree: I make a motion that we approve the application as presented?
Janice Anderson: A motion to approve.
Bill Macali: You already acted on the application.
Eugene Crabtree: So, we can't do that?
Bill Macali: Well, if the Commission wants to reconsider then make the motion to reconsider if
the Commission votes to that then you can have a new motion to approve.
Janice Anderson: Or we can leave it as it is.
Eugene Crabtree: I make a motion that the Commission reconsider this application.
Janice Anderson: Is there any second on that? Motion died. Thank you.
--.....
.
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AUG-11-20fi9-- ..
. '-PLANNING-
1\L~ -tq
COA~ flJOI (",ot:~S,
APPENDIX A-ZONING
~ 502
The following chart lists the requirements within the R-40 through R-2.5 Residential Districts for
minimum lot area, width, yard spacing and maximum lot coverage for uses and structures other than
dwellings.
(d) For uses other than dwellings:
Residential Districts
R-40 R-30 R-20 R-15 R-IO R-7.5 R-5D R-5R R-5R R-2.5
(1) Minimum lot area in square feet: 40,000 30,000 20,000 15,000 10,000 10,000 10,000 10,000 10,000 10,000
(2) Minimwn lot area outside of water
marsh, or wetlands 24,000 24,000 20,000 15,000 10,000 10,000 10,000 10,000 10,000 10,000
(3) Minimwn lot width in feet: 125 100 100 100 100 100 100 100 100 100
(4) Minimwn front yard setback in feet: 50 50 50 30 30 30 30 30 30 30
(5) Minimwn front yard setback in feet
when ad,iacent to a 40-foot right-of-way
created ill accordance with section 4.1(m)
of the su bdivision ordinance in feet: 55 55 55 55 35 35 35 35 35 35
(6) MinimUIil side yard setback except when
adjacent to a street in feet: 25 25 25 25 20 15 15 15 15 15
(7) Minimwn rear yard setback in feet: 25 25 25 25 20 15 15 15 15 15
(8) As an e:[ception, the setback for any
yard adjacent to the Atlantic Ocean for
any structure shall be 30 feet in the
R-5R Die triet NA NA NA NA NA NA NA 30 NA NA
(9) Maximwn lot coverage in percent: 25 25 25 30 30 40 40 40 40 40
(10) Any sidE! yards adjacent to a street
shall be Ii minimum of 30 feet.
(e) Nonconforming lots:
(1) Where a lot has less than the minimum
requirements for the R-5S Residential Dis-
trict and said lot has continuously been a
lot 0:: record, in single and separate own-
ershi.p from adjacent property, prior to
and since the passage of this ordinance,
said lot may be developed for any purpose
permitted within the R-5S Residential
Distlict.
(2) Howl3ver, if the owner of a lot which does
not meet the minimum requirements of
the E:-5S Residential District, is the owner
of or becomes the owner of another sub-
standard lot adjacent to it and located in
the same R-5S Residential District, he is
not entitled to the exception in (1) above.
In this instance, the owner of the two (2)
or more adjacent substandard lots must
combine the two (2) or more lots to form
one which will meet or more closely ap-
proximate the frontage and area require-
ments of the ordinance applicable within
the R-5S Residential District.
Supp. No. 94
(3) The owner of contiguous substandard lots
is prohibited from conveying one (1) or
more of the substandard lots with the
result that both the grantors and the
grantee possess lots entitled to an excep-
tion from the minimum lot requirements.
(4) Status as a single and separate owner
may not be acquired after enactment of
this ordinance by selling a parcel and
reducing the remainder below the mini-
mum lot requirements nor may an owner
of several contiguous nonconforming par-
cels combine them so as to leave a sub-
standard lot, and assert the right to ex-
ception in (1) above.
For the purposes of this section, lots are not
regarded as adjacent where they form an "L", part
of one being contiguous to the other.
(Ord. No. 1914, 9-11-89; Ord. No. 1977, 6-11-90;
Ord. No. 2096, 8-27-91; Ord. No. 2253, 1-25-94;
Ord. No. 2675, 11-27-01; Ord. No. 2735, 1-28-03;
Ord. No. 2929, 3-14-06; Ord. No. 2937, 4-11-06)
2538.5
I.II
Karen Prochilo
From:
Sent:
To:
Subject:
George Wollett [lukester817@yahoo.com]
Wednesday, August 12, 2009 12:15 AM
Karen Prochilo; John Uhrin
Fw: Variance request for 800 Greensboro Ave., Va. Beach 23451
To Whom It May Concern:
We have recently received several e-mailsregardingthe above referred to variance request. It is our
understanding that this matter has been rescheduled to be heard tomorrow, August 12, 2009 at 12:00 noon. We
are forwarding our previously sent e-mail expressing our opposition to this variance. We would like to
again restate that we are still definitely OPPOSED to the above requested variance. We still feel strongly
that the approval of this variance would have a negative impact on our property in the 800 block of Greensboro
Avenue. Therefore, we respectfully request that this variance be denied.
Thank you for your consideration.
Kim and George W ollett
--- On Tue, 8/11/09, George Wollett <lukester817(iiJ,vahoo.com> wrote:
From: George W ollett <lukester817@yahoo.com>
Subject: Fw: Variance request for 800 Greensboro Ave., Va. Beach 23451
To: kprochil@vbgov.com, iuhrin@vbgov.com
Date: Tuesday, August 11,2009,11:59 PM
To Whom It May Concern:
We have recently received several e-mails regarding the above referred to variance request. It is our
understanding that this matter has been rescheduled to be heard tomorrow, August 12,2009 at 12:00 noon. We
are forwarding our previously sent e-mail expressing our opposition to this variance. We would like to
again restate that we are definitely OPPOSED
--- On Tue, 7/7/09, George Wollett <lukester817(iiJ,vahoo.com> wrote:
From: George WOllett <lukester817@yahoo.com>
Subject: Variance request for 800 Greensboro Ave., Va. Beach 23451
To: kprochil@vbgov.com, iuhrin@vbgov.com
Date: Tuesday, July 7,2009,6:19 PM
To Whom It May Concern:
This is to advise that we are definitely OPPOSED to the above requested variance for the property located on
Greensboro Avenue which is to be heard on July 8,2009 at 12:00 noon. We live in the same block at 817
Greensboro A venue and feel that the approval of this variance would have a negative impact on our property.
We respectfully request that this variance be denied.
1
Thank you,
Kim and George W ollett
2
III
Karen Prochilo
From:
Sent:
To:
Subject:
Toya M Burke [toyamburke@cox.netj
Tuesday, August 11, 2009 6:39 PM
Karen Prochilo
800 Goldsboro
Please do not vote in favor of this proposal. Shadowlawn's charm will be further eroded. This would not be approved at
the North end of the Beach!!!
Toya M. Burke
410 9th St.
1
Karen Prochilo
From:
Sent:
To:
Subject:
Attachments:
FlanJimDeb@aol.com
Tuesday, August 11, 2009 3:35 PM
Karen Prochilo; John Uhrin; denasawyer7@yahoo.com
Fwd: 800 Greensboro Avenue
800 Greensboro Avenue
I wish to express my disagreement with any decision to water down the hard
fought limitations to the previous "anything goes" house zoning that we experienced in the
Shadowlawn neighborhood and which this request to permit a nonconforming house
construction will open the door to again. Prior to the change a few short years ago we had
numerous "shotgun", or "traincar" or "skinny" or whatever term you wish to apply houses
being built on 25 foot and 35 foot lots in our neighborhood and it was destroying the
neighborhood. ThE!re obviously was no room for sufficient parking or trees or any of the
normal features that make our neighborhood "special". Builders were only interested in
slapping up a housl3, as cheaply as possible, and unloading it on the buyers and their
neighbors. After ye!ars of jumping through hoops with the City, we finally obtained a
modification of the zoning requirements in this area to the normal requirements called for
in the majority of otl1er Virginia Beach City neighborhoods (R5S) of minimum of 5000
square feet, minimum of 60 feet each direction from a corner, etc. There was a period in
which individuals could obtain permits under the old criteria before the new rules kicked in
and that period has certainly passed.
I know it can be expensive and additional trouble to follow the rules but the rules are in
place to protect the neighborhood and must be followed since they are the MINIMUM, not
some extravagant" "lice to have" criteria. I recently built two new houses in Shadowlawn
(completed in March 2009) and had to modify the footprint of the houses and the size of
the lots to comply with the rules. I also had to contend with the 60 foot from the corner
rule and did so because I understand why the rules are in place. I did not ask for and
would not have accl3pted ANY variance in order to build these houses. I am not a wealthy
person and it cost me to make sure I did not violate the zoning requirements but it is for
the betterment of the neighborhood to have and comply with the zoning requirements.
This person can do the same. He may have to settle on only two houses instead of
adding to his profit by building three or he may have to modify the design or the locations
of the houses.
But I do not want to see this variance go through and set a precedent that will then be
used by others to drive a multiple of additional variances. The line has been drawn. This
person needs to stay within that line.
James Flanagan
708 Arctic Avenue
Virginia Beach, 23451
(Note: I have served as president, vice president and treasurer of the Shadowlawn
Civic League for a total of 6 years+ and therefore have some understanding of the
1
1,1
difficulty of reaching the current zoning rules after years of disaster with the old "non
rules".)
2
Karen Prochilo
From:
Sent:
To:
Cc:
Subject:
hrtbrkOO@cox.net
Tuesday, August 11,20091 :11 PM
Karen Prochilo; John Uhrin
Dena Sawyer
Email Opposition to 800 Greensboro Avenue Variance Request
Karen/John-
I live at 416 Terrac~ ct in Shadow Lawn. My apologies for being unable to attend the zoning
meeting but I am cur~ently serving a one year tour in Afghanistan as a senior Intelligence
Officer.
I am adamantly opposl~d to the subj variance on the basis of the pandora's box it will open
that we will be unable to close. As a 1e year resident of Shadow Lawn, the character of our
community is what makes it such a special place to live. Granting this variance further
creates a congested l~nvironment that unduly taxes our infrstructure and violates the existing
building codes for density of housing.
The existing property consists of four platted lots. All are nonconforming in this R-S5
Residential Single-Family District. Three of the lots have a width of 25 feet and the corner
lot has a width of 30 feet. Each lot is lee feet long and the entire site has a lot area of
1e,492 square feet. The R-5S District requires a lot width of 5e feet and a lot area of 5eee
square feet. It is the intent of the applicant to re subdivide the property into two parcels
for the development of two single-family dwellings. Currently, there is an existing single-
family brick ranch located diagonally across the property. The applicant proposes to
relocate this existing one-story dwelling on the proposed corner lot fronting Caribbean
Avenue. A second dwdling one and half stories in height fronting on Greensboro Avenue is
proposed to built on the interior lot. The interior lot (Lot A2) at 5e by lee feet will be
in conformance with the City requirements. The corner lot (Lot Al) at 5S by lee feet will
not conform to Section 4.4 of the Subdivision Ordinance that requires the corner lots to be
platted at least 1e f~et wider.
The applicant submitted an architectural elevation showing how the existing one-story home
will be improved aftEr it is repositioned onto Lot A1. The elevations shows that a front
porch will be added end new architectural details incorporated to include shake-look siding,
new doors and windows. An architectural elevation was submitted showing a 1 1/2 story home
to be built on proposed Lot A-2. The architectural elevation identifies the building
materials as architectural shingles, simulated hand-cut shakes and horizontal lap siding,
prairie or craftsman style doors and windows and brick base. There are six other corner lots
that could potentially apply for this very same variance.
This is an unconsciable assault on our community standards that will further erode the fabric
of our neighborhood, causing it to spiral into a sea of jumbled, crowded structures on too
small of lots.
Please respect the wishes of the residents and deny the request for vartiance.
Thank you,
Mike Hull
LtCol USMC
Kabul, Afg
1
1,1 I
Karen Prochilo
From:
Sent:
To:
Cc:
Subject:
Harvey G Gillespie [hggillespieiii@juno.com]
Monday, August 10, 2009 10:22 PM
Karen Prochilo
John Uhrin
variance request for 800 Greensboro Ave.
Dear Planning Department and Planning Commission,
I wrote previously in opposition to the requested variance for S00 Greensboro Ave. Since
that time, there have been changes made to the house plans for the interior lot. I also
understand the Planning Dept.
is now recommending approval for this variance. MY opposition has NOT changed. The issue is
not the interior lot--the issue is the corner lot which is still nonconforming. The lot will
be smaller than the size required by code. There are at least 6 other corner properties in
Shadowlawn with a single house on them that measure 105 feet. If you approve this variance,
what is to stop the other 6 or more homeowners from requesting the same? And once you
approve this one, won't you have to approve them all? What will this do to density in an
already over built neighborhood? The city is slated to come into Shadowlawn to do work to
improve our drainage issues. Adding to the density in the community will work against the
city's efforts. We already do not have adequate drainage, adequate parking and adequate
visibility at intersections in Shadowlawn. Increasing the density will not help those
issues.
As a past president of the civic league here, I am very aware of the density issues in our
community. We worked hard to stop the subdividing of lots that brought "skinny houses" and
higher density in our community.
This increased footprint on the lots leads to drainage issues as well as parking issues. We
already have as much density as the neighborhood can support.
This lot does not meet the required square footage to build two homes and I stand in
opposition to this variance.
Thank you for your consideration.
Diane S. Gillespie
71e Winston Salem Ave.
Va. Beach, VA 23451
Shadowlawn
Click now and enjoy a fantastic vacation in the wine country.
http://thirdpartvoffers.;uno.com/TGL2141/fc/BLSr;pTHhwhSMET2PcMIXoQBxMhMdXCkX1kZlbY00701w;zii
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1
Karen Prochilo
From:
Sent:
To:
Cc:
Subject:
kgbrowning@att.net
Monday, August 10, 2009 11 :35 AM
Karen Prochilo
j.anderson111
800 Greensboro
I am oppose to the variance that I understand the Virginia Beach Planning Commission has now decided to
approved.
I understand that the square footage of the house that the
builder/developer plans to build has been changed. It was always was in
line with lot-size requirements. The corner lot has had no changes made
since it was originally disapproved.
The lot is still smaller than the requirement of 60 feet for a corner lot. There are 6
other corner lots in Shadowlawn that measure 105 feet with one house on them. If this
variance is approvej we could possibly have all 6 of those wanting a variance to build 2
houses with the corner
lot smaller than re~uired. I am concerned that it would be hard for the city to say no
to them if they say yes to this one
Kathy Browning
Owner/Principal Designer
Design Consultants
GreenDesign and Direction
708 Terrace Avenue
Virginia Beach VA 23451-4745
757-422-3876
kgbrowning@att.net
1
1.1 I
Karen Prochilo
From:
Sent:
To:
Subject:
JB Dadson [flybuoy2@earthlink.net]
Sunday, August 09, 2009 3:05 PM
Karen Prochilo
RE: Planning Commission Public Hearing for Wednesday, July 08, 2009 (Coastal Living
Builders, L.L.C. I William T. Kiley & Helen R. Paxton)
Karen,
After the deferral, the developer sent an e-mail to those of us that had sent in our recommendation for "disapproval"
asking for all of us to meet with him at another one of his projects nearby. He wanted "us" to examine the "quality" of
his construction. Several folks came back to him, via e-mail, stating something like....."we're not questioning your
construction capabilities......we just don't support your project at 800 Greensboro Ave" (GPIN 2417919618).
Since those are my sentiments as weill did not meet with him or communicate with him. Now I've heard rumors that
he's saying that everybody is onboard with his new revised plan? That's not true, because I still do not support this
project. Thanks, JB
From: Karen Prochilo [mailto:KProchil@vbgov.com]
Sent: Thursday, July 09, 2009 10:07 AM
To: JB Dadson
Subject: RE: Planning Commission Public Hearing for Wednesday, July 08, 2009 (Coastal Living Builders, L.L.c. / William
T. Kiley & Helen R. Paxton)
JB -
The applicant's representative requested deferral of the subdivision variance until next month. The applicant would like
to work with staff.
-Karen Froch;/o
Department of Planning
Municipal Center - Bldg 2
2405 Courthouse Drive
Virginia Beach, Va. 23456
voice 757-385-4298 fax 757-385-5667
korochil@vboov.com
From: JB Dadson [mailto:flybuoy2@earthlink.net]
Sent: Thursday, July 09, 2009 9:55 AM
To: Karen Prochilo
Subject: RE: Planning Commission Public Hearing for Wednesday, July 08, 2009 (Coastal Living Builders, L.L.c. / William
T. Kiley & Helen R. Paxton)
Karen,
Could you tell me what the final outcome of this variance request was? I missed it on TV yesterday. Thanks, JB
From: Karen Prochilo [mailto:KProchil@vbgov.com]
Sent: Monday, July 06, 2009 10:16 AM
To: JB Dadson
Subject: RE: Planning Commission Public Hearing for Wednesday, July 08, 2009 (Coastal Living Builders, L.L.c. / William
T. Kiley & Helen R. Paxton)
JB -
1
Thought you might want 1:0 review a copy of the report to go before Planning Commission on Wednesday. I you cannot
open the attachment visit our planning website at vbgov.com for a copy of the report. Please let me know if you
received this email since t he attachment might not let it go through.
Sincerely
-K.aren froch;/o
Department of Planning
Municipal Center - Bldg 2
2405 Courthouse Drive
Virginia Beach, Va. 23456
voice 757-385-4298 fax 757-385-5667
kprochil(Wvbqov.com
From: JB Dadson [mailto:flybuoy2@earthlink.net]
Sent: Saturday, July 04, ~.009 10:48 AM
To: jurhin@vbgov.com; Karen Prochilo
Subject: Planning Commission Public Hearing for Wednesday, July 08, 2009 (Coastal Living Builders, L.L.c. / William T.
Kiley & Helen R. Paxton)
Dear John and Karen,
I have lived in Shadowlawn and owned the home across the street from 800 Greensboro Ave (GPIN 2417919618) since
1969. I do not support thb variance request. Sincerely, James. B. Dadson (103 Caribbean Ave)
2
WILBERT LAWRENCE
Wilbert H. Lawrence Sr.
..J
.'
(;l'
Subdivision Variance
Relevant Information:
· Princ:ess Anne District
. It is the intent of the applicant to subdivide the property into two
parc'els for estate purposes; the lots will eventually be inherited by
the ClIPplicant's two sons. The applicant intends for the two lots to be
non-building sites.
. Und,!r the regulations of the Zoning Ordinance, neither the area of
the Illt or the lot frontage counts toward meeting the requirements
since! the existing lot is located within the 1 OO-year floodplain.
. As a result, a Subdivision Variance is needed to create these lots, as
they have zero lot area and frontage.
Evaluation and Recommendation:
· Plan'1ing Staff recommended denial
. Planning Commission recommends denial (7-4)
· Theria was no opposition.
, I,ll
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: WILBERT H. LAWRENCE, SR., Subdivision Variance, part of 1564 Back
Bay Landing Road. PRINCESS ANNE DISTRICT
MEETING DATE: October 27,2009
. Background:
It is the intent of the applicant to subdivide the property into two parcels for estate
purposes; the lots will eventually be inherited by the applicant's two sons. The
applicant intends for the two lots to be non-building sites.
Since the majority of the existing lot is located within the 1 OO-year floodplain, the
proposed lots do not have frontage on a public right-of-way and they do not meet
minimum lot size requirements. Section 200(c) of the City Zoning Ordinance
prohibits floodplain areas subject to special restrictions (1 OO-year floodplain) from
counting towards minimum lot area and lot width requirements. Section 4.4 (b) of
the Subdivision Ordinance requires that lots created by subdivision must meet all
requirements of the City Zoning Ordinance. Thus, the creation of these lots
requires a Subdivision Variance.
. Considerations:
As noted above, in this watershed, areas below the 1 OO-year floodplain cannot
be counted towards the minimum lot area or minimum lot width requirements for
subdivision purposes. Section 402 of the Zoning Ordinance requires that non-
residential lots have a minimum of three acres and have 150 feet of lot width.
Thus, in this instance, the proposed lots, as they are located entirely within the
floodplain subject to special restrictions, do not meet the requirements of the
Zoning Ordinance.
In regard to the variance request for lot width and lot area, staff concludes that a
hardship does not exist for this property to be subdivided. It is understood that
the applicant's desire is only to create two lots for his two sons and that the lots
will not be for the purpose of constructing a single-family dwelling; however, Staff
and the Planning Commission find that there is no hardship meeting the
standards for a subdivision variance (see Evaluation Section of attached report).
There was no opposition to this request.
WILBERT H. LAWRENCE, SR.
Page 2 of 2
. Recommendations:
The Pia nning Commission passed a motion by a recorded vote of 7-4 to
recommend denial of this request.
If approved by the City Council, the following condition is recommended:
1-\ note shall be placed on the final recorded plat indicating that Parcel B-1
a:nd Parcel B-2 shall not be used as residential building sites. Parcel B-1
a nd Parcel B-2 shall only be used for non-residential purposes as
permitted by the City Zoning Ordinance.
. Attachments:
Staff Review and Disclosure Statement
Planning Commission Minutes
Location Map and Summary
Recommended Action: Staff recommends denial. Planning Commission recommends denial.
Submitting Department/Agency: Planning Department
City ManageRG \L. ~fl/l'L
"".,
Q
Subdivision Variance
I-I I
10
September 9, 2009 Public Hearing
APPLICANT AND PROPERTY
OWNER:
WILBERT H.
LAWRENCE, SR.
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: Property located at 1600 Back Bay Landing Road.
GPIN:
23184398150000
ELECTION DISTRICT:
PRINCESS ANNE
SITE SIZE:
26.122 acres
AICUZ:
Less than 65 dB DNL
SUMMARY OF REQUEST
It is the intent of the applicant to subdivide the property into two parcels for estate purposes; the lots will
eventually be inherited by the applicant's two sons. The applicant intends for the two lots to be non-
building sites.
Since the majority of the existing lot is located within the 1 OO-year floodplain, the proposed lots do not
have frontage on a public right-of-way and they do not meet minimum lot size requirements. Section
200(c) of the City Zoning Ordinance excludes floodplain areas subject to special restrictions (100-year
floodplain) from counting towards minimum lot area and lot width requirements. Section 4.4 (b) of the
Subdivision Ordinance requires that lots created by subdivision must meet all requirements of the City
Zoning Ordinance. Thus, the creation of these lots requires a Subdivision Variance.
WILBERT H. LAWRENCE.pR.
Agenda lten11 0
Page 1
Jtem Lot B-1 Lot B-2
Lot Width in feet 150 feet 0** 0**
Lot Area in acres 3* 0** 0**
* Minimum lot size for non-residential lots is 3 acres
** Variance required due to floodplain
LAND USE AND ZONING INFORMATION
EXISTING Lj~ND USE: Agricultural cultivation
East:
. Cultivated farmland within Agricultural Reserve Program I AG-1
Agricultural District
. Back Bay Landing Road
. Rural residential and cultivated farmland I AG-1 & 2 Agricultural
Districts
. Rural residential and cultivated farmland I AG-1 & 2 Agricultural
Districts
. Rural residential and cultivated farmland I AG-1 & 2 Agricultural
Districts
SURROUNDING LAND
USE AND ZONING:
North:
South:
West:
NATURAL RIESOURCE AND
CULTURAL FEATURES:
This property is located within the Southern Watershed. The property is
located within the floodplain of special significance (Section 5B.5 of the
Site Plan Ordinance). There are no known significant cultural or
historical features on this site.
IMPACT ON CITY SERVICES
MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Back Bay
Landing Roac' in the vicinity of this application is a rural two-lane highway, approximately 16 feet in total
pavement width. There is currently no roadway CIP project scheduled for this portion of Back Bay Landing
Road. The Master Transportation Plan does not include improvements for Back Bay Landing Road.
TRAFFIC: Street Name Present Present Capacity Generated Traffic
Volume
Back Bay Landing No count data 8,700 ADT (Level of Since the two lots are
Road available Service "C") designated as non-
11,200 ADT 1 Capacity residential and the future
(Level of Service "D") land use is unknown,
generated traffic cannot be
provided
Average Daily Trips
WATER & SEWER: There is no City water and sewer service to this property.
WILBERT H. LAWRENCE,SR.
Agenda Ite"" 1 0
Page 2
1'1 I
FIRE: No Fire Department comments at this time.
HEALTH DEPT: As long as the proposed lots are being created as "not a building site," are not intended for
residential purposes, and this wording appears on each lot, the Health Department has no objections to the
subdivision variance request.
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.
EVALUATION AND RECOMMENDATION
Recommendation:
Staff does not recommend approval of this request.
Comprehensive Plan:
The Comprehensive Plan recognizes this site to be within the Rural Area. The area characterized as low,
flat land with wide floodplains and altered drainage. The Comprehensive Plan recognizes this area as
agricultural and rural uses related to farming, forestry, rural residential and other rurally compatible uses.
Evaluation:
In this watershed, areas below the 1 OO-year floodplain cannot be counted towards the minimum lot area
or minimum lot width requirements for subdivision purposes. Section 402 of the Zoning Ordinance
requires that non-residential lots have a minimum of three acres and have 150 feet of lot width. Thus, in
this instance, the proposed lots, as they are located within the floodplain subject to special restrictions, do
not meet the requirements of the Zoning Ordinance.
WILBERT H. LAWRENCEtpR.
Agenda IteM. 10
Page 3
In regard to the variance request for lot width and lot area, staff concludes that a hardship does not exist
for this property to be subdivided. Additionally concern that once the property is subdivided a request for
a floodplain variance may be made to allow a dwelling to be placed on each lot contrary to staff's request.
If this request is approved the following condition should be included with the Subdivision Variance.
CONDITIONS
A n01e shall be placed on the final recorded plat indicating that Parcel B-1 and Parcel B-2 shall not be
used as residential building sites. Parcel B-1 and Parcel B-2 shall only be used for non-residential
purposes as permitted by the City Zoning Ordinance.
NOTE: Further conditions may be required during the administration of applicable City Ordinances.
Plans submitted with this rezoning application may require revision during detailed site plan review to
meet all applicable City Codes and Standards.
WILBERT H. LAWRENCE.SR.
Agenda IterTI. 10
Page 4
1,1 I
WILBERT H. LAWRENCE,ipR.
Agenda Item 10
Page 5
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WILBERT H. LAWRENCE, 'pR.
Agenda Ite~ 10
R~ge 6
1.1 I
Wilbert H. Lawrence Sr.
.'1
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Subdivision Variance
1 12/09/03 Conditional Use Permit - Alternative Residential Granted
Develooment
2 10/23/07 Street Closure Granted
ZONING HISTORY
WILBERT H. LAWRENCE.~SR.
Agenda Item 10
Page 7
.CLOSURE STATEMENT
APPUCANTDtSClOSURE
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)
2. Ust all businesses that have a parent~subsidiary1 or affiliated business entltyl
reiationship with the applicant (Attach list if necessary)
l!J 01eCk here if the applicant is NOT a corporation, partnership. firm, business, Of
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. cornpfete the following:
1. Un the property owner name followed by the names of all officers, members,
trustees, partners, etc. below: (Attach list if necessatyJ
2. Lifit all businesses that have a parent-subsidiary 1 or affiliated business entity2
reatlOnship 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.
f & 2 ~;ee next page for footnotes
Ooesiln official or employee of the City of Virginia Beach have an interest in the
subJedland? Yes _Q_ No J]J
If yes, what is the name of the official or employee and the nature of their interest?
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Agenda Item 10
Page 8
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DISCLOSURE STATEM
ADOITIONAL DISCLOSURES
list all known contractors or businesses that have or will provide services with respect
to the requested property use. induding but not limited to the providers of architectural
services, real estate services, financial services, accounting services. and legal
services: (Attach list if necessary)
, .Parent-subsidiary relationship" means "a relationship that exists when one
corporation directly or indirectly owns shares possessing more than 50 percent of the voting
power of another corporation." See State and Local Government Conflict of Interests Act., Va.
Code 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 empioyees or otherWi&e share activities,
resources or personnel on 8. regular basis; or there is otherwise a dose working relationship
between the entities.. See State and Local Government Conflict of interests Act. Va. Code ~
2,2-3101.
CERTIFICA TtoN: i certif}t that the infomlatiofl contamed herein IS true and accurate
I understand that, upon receipt of ootlfication (postcard) that the application ha& been scheduleO for
public hearing. I am responsible for obtaining and posting the required sign 00 the subject property at
least 30 days prior to the scheduled pubtichearmg accorc:Ilng to the instnK:tlOnS in this package. The
underSigned also consents to entry upon the subject property by employees of the Department of
PIarri1g to photograph and view the site for purposes of processing and evalt.iatIng this ~.
~~ N lltu(.,~V;1A/"-l')~,J~ , Wilbert H. Lawrence, Sr.
Applicant's Signature Print Name
Property Owner's Signature (if different than applicant) Print Name
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WILBERT H. LAWRENCE.SR.
Agenda Item 10
Page 9
Item # 10
Wilbert H. Law:~ence, Sr.
Subdivision Variance
Part of 1564 BaGk Bay Landing Road
District 7
Princess Anne
September 9,2009
REGULAR
Donald Horsley: The next item to be heard is item 10, Wilbert H. Lawrence, Sr. An application
of a Subdivision Variance, part of 1564 Back Bay Landing Road, District 7, Princess Anne. Mr.
Lawrence?
Wilbert Lawrem:e: I'm Wilbert Lawrence, Sr. I'm representing myself on this. I really don't
know how to begin. The fact of it is that I'm in good health and the right mind, and I want to
make sure that when I die, these two children of mine won't be fighting over this piece of
property. I know it sounds kind of funny but I went through this property. I've had it for years,
and it seems like to me that every time I try to do something, which I think is right, I run into
more and more noney because of regulations and codes. That is fine. We need regulations and
codes. I tried to dean the ditches back in 2003. The Core of Engineers, we had eight meetings.
The Virginia Dare Conservation Committee, we had ten meetings. This is on the property. Then
I had to get Soil Conservation involved. Of course, then there is the City of Virginia Beach
Health Departmmt. In 2008, I got approval from all five agencies to clean the ditches. What
started out as $15,000 ended up being $36,000, so, I guess what I'm saying all I really wanted to
do was to buy thl~ property in have it while I'm alive so each kid will know what they are going
to get. They won't have a problem. As the old saying is legal, and the description is legal, and
the will, and it's in a plat, and the City recognizes it, it is what it is. Okay? And that is all that I
really wanted to do. Now, I talked to Ms. Karen yesterday. She said Mr. Lawrence, we didn't
recommend in su.pport of this. I say "what"? Jesus Christmas. And, you think this is funny;
just to divide property up and put it in the will, I had to pay my process fine, but I had to come
before you good folks, and that is fine too. But now, I'm finding out that you guys don't
consent, I'm going to have to go somewhere else. I told Mr. Gallup when we started on this. I
said, are you sun: that all I've got to do is have you survey the property out"? Put it in legal
form? Each kid would know what they got, and what it is, is what it is. He says fine. And, then
as we did that, the next thing he says, Mr. Lawrence there are some codes that we got. This is
getting back to this ditch cleaning thing again, more and more. So, Planning Commission, I'm
just asking you. ['m not asking to build a house or make big subdivisions, all I'm asking is to
divide the property up so that these two kids will be happily and continually nice towards each
other after I'm gone. Okay? That is all that I'm asking. You can't build anything on it in the
first place, so I don't see why you can't approve it. Are there any questions?
Janice Anderson: Are there any questions? Not at this time Mr. Lawrence.
Wilbert Lawrence: Okay. Thank you.
1.11
Item #10
Wilbert H. Lawrence, Sr.
Page 2
Donald Horsley: There is no one in opposition.
Janice Anderson: There is no one here to speak on it?
Donald Horsley: No.
Janice Anderson: Okay. Thank you sir.
Wilbert Lawrence: Thank you.
Donald Horsley: I've got a question Mr. Lawrence. You said you have two children?
Wilbert Lawrence: Actually, I have three.
Donald Horsley Horsey: Okay. That answers my question.
Wilbert Lawrence: I have three.
Donald Horsley: I see three pieces of property.
Wilbert Lawrence: Right. One has already been subdivided, which thank you my father years
ago, and he subdivided it because he was thinking of only two of us. I own it all. I've got three
kids, and one of them is already set but the other two are not. All I'm asking you to do is just
approve it, than I can die in peace as they say.
Janice Anderson; Are there any other further questions? Thank you sir.
Wilbert Lawrence: Thank you.
Janice Anderson: We'll bring you back up if we have any more questions. Thank you.
Wilbert Lawrence: Alright. Thank you.
Donald Horsley: Can I ask Mr. Macali?
Janice Anderson: Yes.
Donald Horsley: Mr. Macali, what are the other alternatives that Mr. Lawrence would have to get
accomplished what he wants to other than going through this process?
Bill Macali: The only other alternative is that the property can be partitioned in court, meaning
actually subdivided. Of course you can't do it without the subdivision variance. A court can
order a partition of the property without meeting the subdivision requirements. So, the only
other alternative is if the heirs, the two sons go to court over the property. Whatever, ifthe heirs
Item #10
Wilbert H. Lawrence, Sr.
Page 3
go, however marry to file a partition suit, the court can do it. The only other way is the
subdivision vari:mce; so, there are two ways.
Donald Horsley: And since this is floodplain, it can't be developed?
Bill Macali: W <::11, the condition of the variance, if granted, would be that it could not be
developed.
Donald Horsley: Could not be developed?
Bill Macali: Right.
Donald Horsley: Okay.
Ronald Ripley: Can I ask him a question too?
Janice Anderson: Yes.
Ronald Ripley: ]:f this was two 15-acre pieces?
Bill Macali: It doesn't matter. The area within the 100 year floodplain is not included in
determining lot area. So, it is not a question of not being l5-acres, it is all floodplain so none of
that counts as bu:ldable area for the lot.
Ronald Ripley: Could you subdivide, and be a non-buildable lot? Could you have the 15-acres?
Is there any proh::bition to that?
Bill Macali: Yes, because it is not really. Fifteen acres is not really a minimal lot size. It is a
density minimum. The minimum lot size in agriculture districts is only one acre but the code
specifies that when you determine the lot size of an area within the 100 year floodplain, you
cannot include that area within the floodplain as counting in the lot size. So, essentially they have
a zero lot size. In other words, if you have a 15-acre lot, 13 of which are in the floodplain and
two of which are out of the floodplain, that lot size is considered to be 2-acres under the city
zoning ordinance. They don't have anything outside of the floodplain is my understanding.
Therefore, they dDn't meet the minimum lot size requirements of one-acre, so they really need
the subdivision variance ordinance partition suit, which is a whole lot more trouble than a
subdivision variance in order to subdivide the property, and if the Planning Commission deems it
fit to do so, it could simply provide that there would be no development permitted on the site as a
condition of the subdivision variance.
Ronald Ripley: The floodplain is considered non compliant anyway.
Bill Macali: Right, pretty much. Yes sir.
Janice Anderson: Okay. Go ahead Gene.
III I
Item # 10
Wilbert H. Lawrence, Sr.
Page 4
Eugene Crabtree: Well, I'm listening to all of this and I don't want to be the cause of Mr.
Lawrence when he dies being turned over in his grave because his kids are fighting. I personally
would be in favor of approving this with the stipulation that it is non-buildable.
Janice Anderson: I'll just make a comment on this. I understand Mr. Lawrence's situation but
unfortunately, I think it is a personal burden that he has or a personal hardship. I think you might
have acreage where you have 20 some acres in agriculture, and they want to divide it by five
because they have five children. I think you're opening the door to have these lots. I think it is
setting up to be individual lots, buildable lots. I don't know what else you're going to do.
You're making them smaller. They are going to be harder to use as agriculture, and they can
come back and ask to put a house on it. So, I just don't think it makes a hardship. Mr. Macali,
Mr. Lawrence can see an attorney but he can leave this property to his three children like he
wants. It can be sold. They can divide up the funds to them once it is sold or one of them could
buy the other out. Partition suits are done all the time. It is not preventing the gentleman from
doing what he wants to do but I don't think we should start doing estate planning in Planning,
and personal estate planning through the subdivision variance. That is just my opinion on the
application. Go ahead David.
David Redmond: Yeah. I sort of reluctantly concur. We will get you in a minute. I think we
have a responsibility to take some ofthese definitions into laws seriously. And because we're
sympathetic to someone, you can sort of bend certain rules but I think it is not very good practice
to bend laws. I sort of hope I lose in a way because I can sympathize with you. But I think we
have to take the notion of what hardship is seriously and keeping two kids from fighting over
something and why he doesn't meet any kind of definition standard of what a hardship would be
within a planning context. I think your point at the end Jan was very clear. We want to be
sympathetic and helpful to everyone but by the same token, I think we kind of have to stick to
the letter to some extent as well. I'm going to oppose it. I say reluctantly because I certainly
sympathize with you, and I hope all goes well with you. I hope you live to about 150 and you
get to avoid all of this with your sons for longer than that. But that is my opinion. Thank you.
Janice Anderson: Do you have some new information Mr. Lawrence?
Wilbert Lawrence: Well?
Janice Anderson: We're in discussion now so only if you have new information.
Wilbert Lawrence: It is new information. Yes. It is not two sons it is a son and daughter. I got
some new information. They both are married. Okay?
Janice Anderson: Come on up.
Wilbert Lawrence: Okay. I'm not trying to get the Planning Commission to do estate planning
for me by no means. But for some, and I know codes and laws are put to help everybody's
concern. But for some reason or another, it is just an unbuildable lot. It can't be developed.
And, all that I want to do is divide it up. I know it is a son and a daughter. They got kids. They
Item #10
Wilbert H. Lawrence, Sr.
Page 5
like to do, what we call outdoor things. So, that is all that you can do with the property is
outdoor things. They got a little, whatever you call them, four-wheelers and whatever. They're
doing that now. I have witnessed partition suits. It tears families apart. I witnessed some in
South Hampton County, and I saw one here. And they are not good overall. I'm not saying that
the city is going to be turned upside down because of 26 acres. I'm not saying that but it just
creates a whole bag of worms that I'm trying to avoid while I'm alive.
Janice Anderson: Okay.
Wilbert Lawrence: That is all that I have to say.
Janice Anderson: Thank you. Are there any other comments? Jay.
Jay Bernas: Much like everyone else, I would love to be thoroughly in favor ofthis but I just
can't. I think that if you look at what we're required to do, and look for the hardship for me it is
just not there. But, in my heart I love to do this for him to see what he is trying to do but the
reality is, and maybe because I'm an engineer, I tend to be a little bit more technical about things
that I just don't see the hardship. So, I can't be in favor.
Janice Anderson: Thank you. Are there any other comments? Is there a motion? Go ahead.
David Redmond: I move for denial of the application.
Janice Anderson: A motion by Dave Redmond. Second?
Al Henley: I'll second it.
Janice Anderson: A second by Al Henley.
Al Henley: Second to approve?
David Redmond: No, it was denied.
Janice Anderson: A second by Jay Bernas.
AYE 7
NAY 4
ABSO
ABSENT 0
ANDERSON
BERNAS
CRABTREE
HENLEY
HORSLEY
KA TSIAS
LIVAS
REDMOND
AYE
AYE
NAY
AYE
NAY
NAY
AYE
AYE
1,1
Item #10
Wilbert H. Lawrence, Sr.
Page 6
RIPLEY
RUSSO
STRANGE
AYE
AYE
NAY
Ed Weeden: By a vote of 7-4, the application of Wilbert H. Lawrence, Sr. has been denied.
Janice Anderson: Thank you Mr. Lawrence.
BARRl' BEHRMAN
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Modification of Conditions
Relevant Information:
· Kern psville District
· The applicant requests a Modification of Conditions of a
Evaluation and Recommendation:
· Plamling Staff recommended approval
. Planl1ing Commission recommends approval (11-0)
· Therl3 was no opposition.
· Consent agenda.
III
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: BARRY BEHRMAN I ARROWHEAD PLAZA, LLC, Modification of
Conditions, previously approved by City Council on April 27, 1993 and January
26, 1999, 5606 Princess Anne Road. KEMPSVILLE DISTRICT
MEETING DATE: October 27,2009
. Background:
The Conditional Use Permit permitting a billiards facility was approved by the City
Council on April 27, 1993. The conditions of the 1993 Use Permit were modified
by City Council on January 26,1999 and March 27,2001. The applicant now
desires to modify the 2001 City Council approval for the purpose of expanding
the existing billiards facility into an adjoining unit of this commercial strip center.
. Considerations:
The existing 20,700 square foot facility will increase by 3,200 square feet,
allowing a total of 23,900 square feet to be utilized for the billiards operation. No
more than 12 to 14 pool tables will be provided within the expanded portion of the
facility and no modifications to the exterior of the building or site are proposed.
The proposed expansion of the applicant's billiards operation is acceptable,
subject to the conditions of the previously approved modified Conditional Use
Permit. This facility provides a recreational amenity to the surrounding
community. There have not been any zoning complaints regarding this use.
There was no opposition to this request.
. Recommendations:
The Planning Commission placed this item on the Consent Agenda, passing a
motion by a recorded vote of 9-0 to recommend approval to the City Council with
the following conditions:
1. No customer parking shall be allowed behind the facility.
2. The establishment shall close at 2:00 a.m. except on those days when the
establishment is allowed to be open for 24 hours under the provisions of
Condition 3.
BARRY BEHRMAN
Page 2 of 2
3. The applicant shall submit to the Zoning Administrator at the beginning of
each calendar year a written request indicating the dates of operation
each year that the applicant desires to be open for 24 hours. If the Zoning
Administrator finds that the use has been and is operating consistent with
tile provisions and conditions of the use permit, the Administrator shall
allow 24-hour a day operation for the specified dates requested so long as
the number of events and duration of the events do not exceed 24 days
per year. The applicant shall provide the Chief of Police and the Fourth
Police Precinct a schedule of the days the establishment will be open for
24 hours a day no less than 60 days before the event.
4. Parking lot security shall be provided for a minimum of one hour after
closing, except for the above-listed dates. During those dates, parking lot
sl9curity shall be provided 24 hours a day.
5. No alcohol shall be served after 2:00 a.m.
6. Annual administrative review shall be required to ensure compliance with
these conditions.
7. Trash dumpsters shall not be emptied before 7 a.m.
8. T"ash shall not be emptied into dumpsters after 10 p.m.
. Attachments:
Staff Review and Disclosure Statement
Planning Commission Minutes
Location Map and Summary
Recommended Action: Staff recommends approval. Planning Commission recommends
approval.
Submitting Department/Agency: Planning Department
City Manage~~ It-.. ~1'O'l
1,1 I
4
October 14, 2009 Public Hearing
APPLICANT:
BARRY BEHRMAN
PROPERTY OWNER:
ARROWHEAD
PLAZA,LLC
STAFF PLANNER: Leslie Bonilla
REQUEST:
Modification of a Modified Conditional Use Permit for the expansion of a recreational facility (billiards hall)-
approved by the City Council on Janu:lry 26, 1999 March 27, 2001.
ADDRESS I DESCRIPTION: 5606 Princess Anne Road
GPIN:
14671373730000
ELECTION DISTRICT:
KEMPSVILLE
SITE SIZE:
9.223 acres site
23,900 sq. ft. lease space
AICUZ:
Less than 65 dB DNL
SUMMARY OF REQUEST
The Conditional Use Permit permitting a billiards facility was
approved by the City Council on April 27, 1993. The conditions
of the 1993 Use Permit were modified by City Council on January 26, 1999 and March 27,2001. The
applicant now desires to modify the 2001 City Council approval for the purpose of expanding the existing
billiards facility into an adjoining unit of this commercial strip center. The existing 20,700 square foot
facility will increase by 3,200 square feet, allowing a total of 23,900 square feet to be utilized for the
billiards operation. No more than 12 to 14 pool tables will be provided within the expanded portion of the
facility and no modifications to the exterior of the building or site are proposed.
The 2001 Modified Conditional Use Permit has the following eight (8) conditions:
BARRY BEHRMAN
Agenda It~ 4
page 1
1. No cllstomer parking shall be allowed behind the facility.
2. The Hstablishment shall close at 2:00 a.m., except for the following dates when the establishment
may operate 24 hours a day:
Se tember 7 - 19, 2001
Se tember 20 - 29,2002
Se tember 12 - 21 ,2003
Se tember 3 - 12,2004
Se tember 16 - 25,2005
If 24-hour a day operation is desired after 2005, a written request must be submitted to the
Planning Director indicating the dates of operation each year for up to a five-year period. If the
Plann ing Director finds that the use has been and is operating consistent with the provisions and
conditions of the use permit, the Director shall allow 24-hour a day operation to continue for the
specified dates requested so long as the number of events and the duration of events does not
exceEld that listed above.
3. Parking lot security shall be provided for a minimum of one (1) hour after closing, except for the
abovEllisted dates. During those dates, parking lot security shall be provided 24 hours a day.
4. No alcohol shall be served after 2:00 a.m.
5. The applicant shall provide the Chief of Police and the Fourth Police Precinct a schedule of the
days the establishment will be open for 24 hours a day no less than 60 days before the event.
6. A one (1) year administrative review shall be required to ensure compliance with these
condilions.
7. Trash dumpsters shall not be emptied before 7 a.m.
8. Trash shall not be emptied into dumpsters after 10 p.m.
LAND USE AND ZONING INFORMATION
EXISTING LAND USE: Shopping center with associated parking
East:
. Parliament Drive
. Across Parliament Drive are single-family dwelling I R-40
Residential District
. Retail establishment I B-2 Community Business District
. Princess Anne Road
. Across Princess Anne Road are single-family dwellings I R10
Residential District
. Multi-family dwellings I A-12 Apartment District
. Single-family dwellings I R7.5 Residential District
. Gas station I B-2 Community Business District
SURROUNDING LAND
USE AND lOINING:
North:
South:
West:
NATURAL RE:SOURCE AND
CULTURAL FEATURES:
There are no known significant natural resources or cultural features
associated with this site.
BARRY BEHRMAN
Agenda It Elfin 4
Page 2
1.11
IMPACT ON CITY SERVICES
MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Princess Anne
Road in front of this site is a four-lane divided minor urban arterial. The Master Transportation Plan proposes
a divided facility with bikeway within a 100-foot wide right-of-way. No Capital Improvement Program projects
are slated for this area.
Parliament Drive adjacent to this site is a two-lane undivided collector street. No Capital Improvement
Program projects are slated for this area.
TRAFFIC: Street Name Present Present Capacity Generated Traffic
Volume
Princess Anne 29,883 ADT 1 22,800 ADT T No significant changes in
Road the trip generation are
Parliament Drive 3,472 ADT 1 9,900 ADT 1 expected with the exception
of a possible delay in the
peak hour toward the
eveninQ hours.
, Average Daily Trips
WATER AND SEWER: This site currently connects to City water and sewer.
Recommendation:
Staff recommends approval of this
requested modification, as conditioned below.
EVALUATION AND RECOMMENDATION
Comprehensive Plan:
The Comprehensive Plan designates this site as part of the Primary Residential Area. The
Comprehensive Plan Policy document reinforces the suburban characteristics of commercial centers and
other non-residential area for this area. The Plan states that: "Limited commercial or institutional
activities providing desired goods or services to residential neighborhoods may be considered acceptable
uses on the edge of established neighborhoods provided effect measures are taken to ensure
compatibility and non-proliferation of such activities."
Evaluation:
The proposed expansion of the applicant's billiards operation is acceptable, subject to the conditions of
the previously approved modified Conditional Use Permit. This facility provides a recreational amenity to
the surrounding community. There have not been any zoning complaints regarding this use. Staff,
therefore, recommends approval subject to the following conditions.
BARRY BEHRMAN
Agenda Itepl 4
Rage 3
CONDITIONS
1. No cllstomer parking shall be allowed behind the facility.
2. The Elstablishment shall close at 2:00 a.m. except on those days when the establishment is allowed to
be o~'en for 24 hours under the provisions of Condition 3.
3. The clpplicant shall submit to the Zoning Administrator at the beginning of each calendar year a written
reque~st indicating the dates of operation each year that the applicant desires to be open for 24 hours.
If the Zoning Administrator finds that the use has been and is operating consistent with the provisions
and conditions of the use permit, the Administrator shall allow 24-hour a day operation for the
specil:ied dates requested so long as the number of events and duration of the events do not exceed
24 days per year. The applicant shall provide the Chief of Police and the Fourth Police Precinct a
schedule of the days the establishment will be open for 24 hours a day no less than 60 days before
the event.
4. Parking lot security shall be provided for a minimum of one hour after closing, except for the above-
listed dates. During those dates, parking lot security shall be provided 24 hours a day.
5. No alcohol shall be served after 2:00 a.m.
6. Annual administrative review shall be required to ensure compliance with these conditions.
7. Trash dumpsters shall not be emptied before 7 a.m.
8. Trash shall not be emptied into dumpsters after 10 p.m.
NOTE: Furthor conditions may be required during the administration of applicable City Ordinances and
Standards. A ny site plan submitted with this application may require revision during detailed site plan
review to me4~t all applicable City Codes and Standards. All applicable permits required by the City
Code, including those administered by the Department of Planning / Development Services Center and
Department elf Planning / Permits and Inspections Division, and the issuance of a Certificate of
Occupancy, clre required before any uses allowed by this Use Permit are valid.
The applicanl' is encouraged to contact and work with the Crime Prevention Office within the Police
Department ft)r crime prevention techniques and Crime Prevention Through Environmental Design
(CPTED) com;epts and strategies as they pertain to this site.
BARRY BEHRMAN
Agenda Itarn 4
Page 4
, 1'1 I
AERIAL OF SITE LOCATION
BARRY BEHRMAN
Agenda It,f 4
Rage 5
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BARRY BEHRMAN
Agenda Item 4
Page 7
Behrman
q] I 1
'C/jl
Modification of Conditions
# DATE: DESCRIPTION ACTION
1 3-27-01 Modification of Conditions Granted
1-26-99 Conditional Use Permit (recreational facility-family billiards expansion) Granted
4-27 -!~3 Conditional Use Permit (recreation facilitv-familv billiards) Granted
2 1-14-92 Zonina Chanae (1-1 to R-40) Granted
3 3-22-B4 Conditional Use Permit (truck rentals) Granted
4 1-23-B6 Conditional Use Permit (communications tower) Granted
7-11-06 Modification of Conditions Granted
5 4-25-B5 Subdivision Variance Granted
6 7-1-00 Conditional Use Permit (car wash) Granted
7 10-11-05 Zoning Chanae (B-2 to R-20) Granted
8 8-14-07 Zoning Change (B-2 to R-20) Granted
ZONING HISTORY
BARRY BEHR~AN
Agenda Itetr 4
Page 8
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DISCLOSURE
APPLICANT DISCLOSURE
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 aU officers members, trustees,
partners, etc below (Attach list if necessary)
Barry Behrman
2. Ust all businesses that have a parent-subsidiary \ or affiliated business entitf
relationship With the applicant: (Attach list if necessaryj
.,/
~heCI< here if the apPlican~"iS No-r 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 Ust the property owner name followed by the names of all officers. members
trustees, partners. €ltc, below: (Attach Iistif necessary)
Arrowhead Plaza LLC, Richard Burroughs- owner
2. Ust 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 property owner IS NOT a corporation partnership firm,
business, or other unincorporated organization
~
, & ~ See next page for footnotes
Does an official or employee of the ~f 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?
M~>oo d Conditions Aoom~l104i
Page 10 of 11
Rw$OO 71jA17
DISCLOSURE STATeMENT
BARRY BEHRMAN
Agenda It ern 4
Rage 9
I 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 hmited to the providers of architectura!
services, real estate services financial services accounting services, and legal
services (Attach list if necessa
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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
pow~r of another corporation." See State and Local Government Conflict of Interests Act Va
Cod,~ ~ 2.2-3101
2 "Affiliated business entity relationshIp" means "a relationship. other than parent-
SUbsidiary relationship that eXIsts when (if one business entity has a controlling ownershIp
interast in the other business eoUty . (ii) a controllmg owner in one entity is also a controlling
OWMr in the other entity. or (Hi) 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
busllless entities share the use of the same offices or employees or otherwise share activities,
reSOiJrces or personnel on a regular basis; or there is othefWise a close working relationship
between the emities: See State and Local Government Conflict of Interests Act Va Gode ~
22-2;101
CEJlTlFICA liON: I certify thaI the irnormallon contained herein IS true and accurate
I unchrstand that. upon receipt of notrtlcatlon (postcard) tl1at tl1e application has ~n ~uled for
publi(~ hearing, I am responsible for obtaining and posting the required Sign on the subject property at
least 30 (lays prIOr to the scheduled publiC hearing according to the instrlldions in thiS package The
undersigned also consents to entry upon the subject property by employees of the Department of
PlanTing to photograph and \flew the site for p\.lIpclses of processing and evaluating thIS applicatloo.
Ii,k.~ik~
, Poot (-tame
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(sEte attached lease agreement)
PlopliJty Owllers Signature tif different than applicant)
Pnnt Name
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DISCLOSURE STATEMENT
BARRY BEHRMAN
Agenda ItEin 4
Page 10
1.1 I
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DISCLOSURE STATEMENT
BARRY BEHRMAN
Agenda It. 4
Page: 11
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I\.\I<UY S. tlEHRMAN
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.li'I"/_'~ /?.P/71;J1t?n---
DISCLOSURE STATEMENT
BARRY BEHRrtAN
Agenda Item 4
Pct(JEt' 12
I'll
Item #4
Barry Behrman
Modification of Conditions
5606 Princess Anne Road
District 2
Kempsville
October 14, 2009
CONSENT
Joseph Strange: The next matter is agenda item 4, an application of Barry Behrman, for a
Modification of Conditions, previously approved by City Council on April 27, 1993 and January
26,2001, on property located at 5606 Princess Anne Road, District 2, Kempsville, with eight
conditions.
Janice Anderson: Welcome.
Barry Behrman: Madame Chairman, good to see you. It's been 15 years. I'm glad to see that
Ron Ripley's misspent youth playing pool has worked very well for him. I'm just kidding. I
remember when Ron used to playa little pool.
Janice Anderson: Was he any good?
Barry Behrman: I can't go into detail, but he usually won.
Joseph Strange: Are the conditions acceptable to you?
Barry Behrman: Yes.
Ed Weeden: Sir, could you identify yourself for the record please?
Barry Behrman; I'm sorry. Barry Behrman, owner, Q-Master Billiards.
Ed Weeden: Thank you.
Barry Behrman: I'm proud to have with me a couple of things that I brought. First, is a letter
from capt. Greenwood from the 4th Precinct. I will pass these letters along to Council in 13
days. To whom it may concern. It has been brought to my attention that Q-Master Billiards,
location 5612 Princess Anne Road is expanding its operation. Strictly from an operational
perspective, the calls for service at this location the past two years have been minimal. In only
one case, which was defrauding an innkeeper, we had to call somebody being documented. This
information can be verified through the City and the employee's E-Pro systems. If you have any
questions, please contact me. Capt. Greg Greenwood, 4th Precinct. I'm awfully proud of this.
Also, the ABC Board will be giving me a letter after today's meeting to bring to Council on the
27th with their approval of the expansion. And also, I have a letter from the Fire Department that
their last routine checkup was absolute no violations. And previous violations were corrected,
Item #4
Barry Behrman
Page 2
dated lO/2/09. And last but not least, I have a letter from Wally Erb. I'm sure everybody knows
him? That baskally says that the civic league is happy to have Q-Master Billiards at Arrowhead
Plaza Shopping Center. It has become a landmark. I'm also proud to say that the 25,000 square
feet that we wit end up having will be the largest billiard room in America with 72 tables, and
excellent clientele, with zero problems, and it has been a pleasure being in the City of Virginia
Beach, of my 2B years in business, the last l5Yz years.
Joseph Strange: Well thank you Barry. Is there any opposition to this matter being placed on the
consent agenda? If not, the Chair has asked Henry Livas to review this item.
Barry Behrman: Thank you.
Henry Livas: The applicant desires to modify the 2001 City Council approval for the purpose of
expanding the existing billiards facility into an adjoining unit of this commercial strip center.
The existing 20,700 square foot facility will increase by 3,200 square feet, allowing a total of
23,900 square feet to be utilized for the billiard's operation. No more than l2 to 14 pool tables
will be provided within the expanded portion of the facility, and no modifications to the exterior
of the building are proposed. The establishment shall close at 2:00 a.m., except for a few cases
when there is a tournament going on, the establishment may be open 24 hours a day. There have
not been any zoning complaints regarding this use. Therefore, we recommend approval subject
to the eight conditions. We recommend approval of this expansion. We have placed it on the
consent agenda.
Joseph Strange: Thank you Henry. Madame Chair, I make a motion to approve agenda item 4.
Janice Anderson: We have a motion by Joe Strange.
Eugene Crabtree: I'll second it.
Janice Anderson: A second by Gene Crabtree.
ANDERSON
BERNAS
CRABTREE
HENLEY
HORSLEY
KA TSIAS
LIVAS
REDMOND
RIPLEY
RUSSO
STRANGE
AYE 9
NAY 0
ABSO
ABSENT 2
AYE
ABSENT
AYE
AYE
AYE
ABSENT
AYE
AYE
AYE
AYE
AYE
Ed Weeden: By a vote of 9-0, the Board has approved agenda item 4 for consent.
5105 F'RINCESS ANNE I ABOUNDING GRACE
5105 Princess Anne, LLC
FrederickRPerkins
Relevant Information:
· Kempsville District
· The :applicant requests a
Evaluation and Recommendation:
· Planning Staff recommended approval
· Plan ning Commission recommends
· There was no opposition.
· Com.ent agenda.
1,1 I
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: a) 5105 PRINCESS ANNE, LLC I FULTON BANK, Chanae of Zonina District
Classification, B-2 Community Business District and 1-1 Light Industrial District to
Conditional B-2 Community Business District, 5102 Princess Anne Road.
KEMPSVILLE DISTRICT
b) PASTOR WARREN SINGLETON (ABOUNDING GRACE ASSEMBLY) I
FULTON BANK, Conditional Use Permit, religious use, 5102 Princess Anne Road.
KEMPSVILLE DISTRICT.
MEETING DATE: October 27,2009
. Background:
Abounding Grace Assembly (also known as 5105 Princess Anne, LLC) is
currently located at 5105 Princess Anne Road, directly across the street, and
must relocate due to the impending Capital Improvement Program project, CIP 2-
048 Princess Anne Road / Kempsville Road Intersection improvements, which
impacts that site. The church seeks to relocate to the opposite side of Princess
Anne Road, where a vacant building, formerly occupied by Yoder Dairies, is
located. The portion of that site where the vacant building is located, however, is
zoned Conditional 1-1 Light Industrial, and that zoning district does not permit
religious uses. The front portion of the site is zoned Conditional B-2 Community
Business.
The applicant, 5105 Princess Anne LLC, and the property owner, Fulton Bank,
propose to rezone the Conditional B-2 Community Business and Conditional 1-1
Light Industrial properties to Conditional B-2 Community Business, which will
allow the leasing of the building and site for the operation of the church. In
addition to the change of zoning, the church is requesting a Conditional Use
Permit for a religious use (church).
. Considerations:
Abounding Grace Assembly conducts services Sundays from 10:00 a.m. to 1 :00
p.m. with 75 to 90 members in attendance. Bible studies are held Wednesday
evenings from 7:00 p.m. to 8:30 p.m. Two staff members occupy the church
offices Monday through Friday during the hours of 9:00 a.m. to 5:00 p.m. There
are no changes proposed to the outside of the structure with the exception of
changing the faces of the existing signs to the name of the religious use.
Sufficient parking is located on the site to support the proposed use.
5105 PRINCESS ANNE, LLC / ABOUNDING GRACE ASSEMBLY
Page 2 of 2
The requests for a rezoning from Conditional B-2 Community Business and 1-
1 Light I ndustrial to Conditional B-2 Community Business and for a Conditional
Use Permit for a religious use are acceptable. The proposal for a church use is in
keepin~J with the intent of the Comprehensive Plan. Religious uses typically have
a "non-rush hour" traffic pattern and are generally compatible with adjacent
commercial, office, and residential land uses. The submitted proffers limit the use
of the site to a religious use and the attached conditions will insure the use meets
buildin~, code requirements.
There was no opposition to this request.
. Recommendations:
The Planning Commission placed the items on the Consent Agenda, passing a
motion by a recorded vote of 9-0 to recommend approval to the City Council as
proffered and with the following conditions:
1. The applicants shall obtain all required building and fire codes inspections
Bind a Certificate of Occupancy for the change of use from the Building
Code Administrator.
2. The applicants shall install street frontage landscaping within a 10-foot
landscaping bed beginning at the back of the existing curb running parallel
to the building and parking area.
3. If and when church attendance exceeds 100, the applicant shall install
additional parking spaces sufficient to accommodate additional members
at a ratio of 1 space for every 3 seats.
. Attachments:
Staff Review and Disclosure Statement
Planning Commission Minutes
Location Map and Summary
Recommended Action: Staff recommends approval. Planning Commission recommends
approval.
Submitting Department/Agency: Planning Department ^ ^;J
City Manager: <~~t \ 1ij~ VV
5J05 Prince..,'s Aune. LLC
Frederick l~ Perkins
Iii I
7&8
October 14,2009 Public Hearing
APPLICANT:
5105 PRINCESS
ANNE, LLC I
ABOUNDING
GRACE
ASSEMBL Y
PROPERTY OWNER:
FULTON BANK I
FREDERICK P.
PERKINS
STAFF PLANNER: Faith Christie
REQUESTS:
7. Conditional Chanqe of Zoninq (B-2 Community Business and 1-1 Light Industrial to B-2 Community
Business)
8. Conditional Use Permit (Religious Use)
ADDRESS I DESCRIPTION: 5102 Princess Anne Road
GPIN:
14668837030000
ELECTION DISTRICT:
KEMPSVILLE
SITE SIZE:
3.474 acres
AICUZ:
Less than 65 dB DNL
SUMMARY OF REQUEST
The applicant, 5105 Princess Anne LLC, and the property owner, Fulton Bank, propose to rezone the
existing Conditional B-2 Community Business and Conditional 1-1 Light Industrial properties to Conditional
B-2 Community Business for the purpose of leasing the site to a religious use. The site was occupied by
Yoder Dairies for 65 years. In December of 1999, the dairy owner rezoned the site to redevelop it with
retail shops and a modern dairy. In May of 2003, the dairy owner modified the 1999 rezoning to reduce
5105 PRINCESS ANNE / ABOUNDING GRACE
Agenda Items 7 & 8
Page 1
the size of the, proposed retail facility. Most recently, the dairy has ceased operations. The applicant's
request for this rezoning is necessitated by the fact that the 1-1 Light Industrial does not permit religious
uses.
The applicant Abounding Grace Assembly, also wishes to obtain a Conditional Use Permit for a religious
use. The applicant is currently located at 5105 Princess Anne Road, directly across the street, and must
relocate due to the impending Capital Improvement Program project, CIP 2-048 Princess Anne Road /
Kempsville Road Intersection improvements, which will impact that site.
Abounding Grace Assembly conducts services Sundays from 10:00 a.m. to 1 :00 p.m. with 75 to 90
members in al1endance. Bible studies are held Wednesday evenings from 7:00 p.m. to 8:30 p.m. Two
staff members occupy the church offices Monday through Friday during the hours of 9:00 a.m. to 5:00
p.m. There am no changes proposed to the outside of the structure with the exception of changing the
faces of the eJcisting signs to reflect the name of the religious use. Sufficient parking is located on the site
to support the proposed use.
LAND USE AND ZONING INFORMATION
EXISTING LAND USE: A vacant buidling, which formerly house the Yoder Dairy facility. A building containing
the dairy facilily and a retail shop, associated landscaping and parking are located on the site. The site is
zoned Conditional B-2 Community Business and Conditionall~1 Light Industrial.
SURROUNDU~G LAND
USE AND ZOI\lING:
North:
South:
East:
West:
. Single-family and duplex dwellings / R-5D Residential
. Princess Anne Road
. Single-family and duplex dwellings / R-5D Residential
. Motor vehicle sales and service, an office, and a daycare facility
/ B-2 Community Business
NATURAL RESOURCE AND
CULTURAL FEATURES:
There are no known significant natural resources or cultural features
associated with the property.
This site is located in the Historic Kempsville Area. The vision for Historic
Kempsville is to recreate a village setting, building on the setting and
historic character and importance of the area while accommodating
reasonable development and redevelopment opportunities for property
owners.
IMPACT ON CITY SERVICES
MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Princess Anne
Road in front of this site is a four-lane divided minor urban arterial. The Master Transportation Plan (MTP)
proposes a divided facility with bikeway within a 100-foot wide right-of-way section. A Capital Improvement
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7& 8
Page 2
III I
Program (CIP) project is designated for this area. The Princess Anne Road I Kempsville Road Intersection
Improvement project (CIP 2-048) will reconstruct the Princess Anne Road I Kempsville Road I Witchduck
Road intersection to raise the capacity of the intersection in order to meet future demands and eliminate
current congestion problems. The project is currently in the Site Acquisition phase and is scheduled to go to
bid summer of 2010.
TRAFFIC: Street Name Present Present Capacity Generated Traffic
Volume
Princess Anne 27,293 ADT 1 22,800 ADT Existing Land Use L. -38
Road ADT
Proposed Land Use 3 - 138
ADT (57 Peak Hour
Vehicles)
, Average Daily Trips
2 as defined by 10,000 square foot dairy (manufacturing)
3 as defined by a 90 seat religious facility. The Trip Generation numbers presented below assume that the church service attendees will
not increase. With the 10,000 square feet of space available, the Sunday ADT can conceivably increase to approximately 366 trips, with
118 trips occurrina durina the peak hour.
WATER and SEWER: This site is connected to City water and sewer. The applicant must provide an analysis
of Pump Station #417 and the sanitary sewer collection system to ensure future flows can be accommodated.
SCHOOLS: School populations are not affected by the request.
Recommendation:
Staff recommends approval of this
request with the submitted proffers, provided below, and with the conditions below.
EVALUATION AND RECOMMENDATION
Comprehensive Plan:
The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The
Comprehensive Plan 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. In a
general sense, the established type, size, and relationship of land use, residential and non-residential,
located in and around these neighborhoods should serve as a guide when considering future
development.
This site is also located in the Historic Kempsville Area. The vision for Historic Kempsville is to recreate a
village setting, building on the setting and historic character and importance of the area while also
accommodating reasonable development and redevelopment opportunities for property owners in a
manner that is compatible with the new roadway system; maintaining and improving access to serve
existing commercial, office and institutional uses; not exacerbating vehicular traffic congestions and
conflicts in the area; and not reintroducing traffic congestion and conflicts in the area that the new
roadway system was designed to remedy.
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7 & 8
Page 3
Evaluation:
The requests for a rezoning from Conditional B-2 Community Business and 1-1 Light Industrial to
Conditional B-2 Community Business and for a Conditional Use Permit for a religious use are acceptable.
The proposal for a church use is in keeping with the intent of the Comprehensive Plan. Religious uses
typically havE~ a "non-rush hour" traffic pattern and are compatible with adjacent commercial, office, and
residential land uses. The submitted proffers limit the use of the site to a religious use and the attached
conditions will insure the use meets building code requirements.
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 :
The use of tile Property shall be restricted to religious uses and uses accessory thereto.
PROFFER ~:
Further conclitions lawfully imposed by applicable development ordinances may be required by the Grantee
during detailed Site Plan and lor 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.
The City Attorney's Office has reviewed the proffer agreement dated August 3, 2009, and found it to be
legally suffic ent and in acceptable legal form.
CONDITIONS
1. The applicants shall obtain all required building and fire codes inspections and a Certificate of
Occupancy for the change of use from the Building Code Administrator.
2. The applicants shall install street frontage landscaping within a 10-foot landscaping bed beginning at
the back of the existing curb running parallel to the building and parking area.
3. If and when membership of the church attendance exceeds 100, the applicants shall install fleW
additional parking spaces sufficient to accommodate aR additional 4QQ members at a ratio of 1 space
for eV<3ry 3 seats.
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7 & 8
Page 4
1,1 I
NOTE: Further conditions may be required during the administration of applicable City Ordinances and Standards. Any site plan
submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and
Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /
Development Services Center and Department of Planning / Permits and Inspections Division, and the issuance of a Certificate
of Occupancy, are required before any uses allowed by this Use Permit or Change of Zoning are valid.
AERIAL OF SITE LOCATION
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SITE PLAN
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7 & 8
Page 6
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5105 PRINCESS ANNE I ABOUNOING GRAC
p..genda \temS 1 ~
psgl
..' > ".,
CUP - Religious Use
1. 5/27103 Modification of Proffers Approved
12/7 '99 Rezoning (B-2 Community Business and Approved
R-5D Residential to Conditional B-2
Community Business)
2. 1/11100 Conditional Use Permit (church expansion Approved
and private school)
9/24.'91 Conditional Use Permit (church expansion) Aporoved
3. 12/11/01 Conditional Use Permit (church expansion Approved
- parking)
4. 6125'96 Conditional Use Permit (motor vehicle Approved
rental
5. 7/31'06 Conditional Use Permit (church) Approved
ZONING HISTORY
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7 & 8
Page 8
LOSURESTATEMENT
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)
5105 Princess Anne. llC
Members: Frederick P. Perkins; Brenda P. Walsh; Johanna M. Parkins
2. List all businesses that have a parent-subsidiary1 or affiliated business entit}?
relationship with the applicant: (Attach list if necessary)
NiA
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)
Fulloo Bank
2. List all businesses that have a parent-subsidiary1 or affiliated business entitl
relationship with the applicant: (Attach list if necessary)
Please see attached Ust.
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 U No JZL
If yes, what is the name of the official or employee and the nature of their interest?
N!A
Conditional Rezoning Application
Page 11 of 12
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5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7& 8
Page 9
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DISCLOSURE STATEMENT
ADDITIONAL DISCLOSURES
Lisl 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)
Perkins Construction Co.
Fulton Bank
Troutman San<lers LLP
j 'Parent-subsidiary relationship. means "3 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 Govemment Conflict of Interests Act Va.
Code ~ 2.2-3101.
2 "Affiliated business entity relationship' means "a relationship, other than parent-
subsidiary relationship, that exists when (i) one business entity has a con1rolling ownership
interest in the other business entity, (ii) a controlling owner in one entity is also a controlling
owner in the other entity. or (iH) 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 Of 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 Govemmerrt Conflict of Interests Act, Va. Code ~
2.2-3101.
CERTIFICATION: f certify that the information contained hefein is true and accurate.
I understand that, upon reooipt 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
laast 30 days prior to the scheduled public hearing according to the instructions in this package, The
undersigned also consents to entry upOl'l the subject property by employees of the Department of
Planning to photograph and view lhe site for purposes of processing and evaluating thiS application.
{::nz~ ?"'-r k!~1 j
Print Name
r\,(t(K t ~\J rt^')1,~ ~\;'! f
,
Print Name
Cond<<>nai Rezo<1mg Applicll\\o<l
Page 12 of 12
RlJvi$OO !:3!')fj.,}7
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7& 8
Page 10
AGEMENT, DIRECTORS
Y BOARD MEMBERS
FuLTON FINANCIAL
CORPOR.\TION SENIOR
MANAGEMENT
R, S~ott Smith. Jr.
Chairman anJ
Chief Extaltlw Offiur
E. Philip Wenger
President Jnd
eh:!; Upmlti/lg Offittr
Charles]. Nugent
5miol' EXtc1:ltlif
n" Presiaml
cri~rFifU1Ui..t! Offit"
Jame~ E. Shrcmer
S(lli~r Ertrotn'<
Y'ICf Prlsidatl
."ldmimftf'f1tiw 5trt~'t$
Craig H. Hili
Slftior E.t:I:uttl:t
i'ice Proidmt
]'lum4" RtJour:fJ
FULTON FISA.-,;"CtAl.
CORPORATION
BOARD Of Dumerous
Jeiirey G.AJbert'it}fi,
John M. Bond,Jr.
DQll.Jd M, B()\<'man,]r.
!)ana.\ Chn'">{
Craig A. Dath; E~q
Patrick J. Freer
R\lfus A. Fulwn, Jr.
George \'(r I'lodges
Cilwh'"!l R. Holleran
\l111em KilUyker
DWl.lld \X:~ Lesher,Jr,
,.>,braham S. Oparnt
John 0 Shirk, ~q.
R. Scott ~mlth.Jr
bary A. Stewart
L. Philip Wenger
SUBIllDlAll.l' BANK
BOARDS OF DtnECTOIlS
Fulton Bank
RIchard). Ash!>}; Jr,
Larry D. Bashore
Dana A, Chryst
Caries E. Graupera
J;une~ M Herr
Curn~ J Myell
Gtorge A. Pumer
Harlowe R. PrIndle
\. Richard Pugh
CralgA. Roda
Jeh,., 0. Shirk, Esq
Fulton Bank Dhris.lonal Boards
Brandywine Division
Kenneth M. Goddu. Cbaimwn
Robert E Adams, Esq.
Wilmer L. Hostetter
Dallas Krapt
Jame, D
.\ltch.tl J. O'Rourke
Capita! Divhlon
Rubert Cha~dr.
James C. Bieri-
S;unud T lA"'pa, m, ESIj
5t"'''1:11 S. Etter
Dowres Lipttlk
Barry E.. Mu%er. C.PA
Beth A. Peiffer
Steven C 'X"uds
Drovers Division
David tv. Freeman, GiXtfrmiPI
Veroon L Brllcey
Rllbert S. Freed
Jevon L HoJhnd
Gregory V Saubel
\\l!HJm S. ~htpley; HI
Gary' A. Stewart,]r.
Delaine A. Tuerper
Christine R Wardrup
Constance L ),,\Hf
Great Valley Division
Jdfrey R, Rush, Cbairman
MarulinQ CilJoll
Michael D. Fromm
lUthrvn G, CToo<.lflkln
Daniel .\1. Gt"Kl\t,'Mr
Cawlpl R. Holleran
William G. Koch, 't. C.P.A,
Lebanon \':illey Division
Bury E. Ansel, CharrmJn
Randall!. E berrole
Robert J Funk
Roher. P Hoffman
Wendie DiMl1tteo Holsinger
Robert .1. Lof'b'"
,\3bert B, },I,nrry
:.1. Randolpb Tiee
1'1 I
Premier Diyisl.!ln
R. Feilmticr, (b;mnsn
liMn R
Amhon)' D Cino
Wallace Rosenthal
h~~' Silver
Southern Division
TA. Grtll,Jr., Ch4'''''''""
T RIchard Llttoll, .1r
Uovrl M. Pix:
Timothy J. Stift1er
EEzal'<'m Addmgt'nn 1\vohv
Fulton BmIt Advi$ol')' Boards
A.kron!LincolnfEpbnltil
Lar". L. Loose, Chili","a"
De.mA. Hoover
LotUs G Hum
Kent M.MllrtHl
Denver
Mich~l L. W~lIlh()ld,
C.P....... Chaim:.m
Gmld L Harding
East Petersburg
P l.:Irry Groft. Sr,
Kenneth L. Kmder
J6~C3 H. May
Eliubethtov,'fl
:--;ant'Y z. Garber
David B. MueiJer
D:r<1d W. S....<:i,lpJf IH
Dennis Zubler
Gap
\id\l$ R.. King. Cb..:iNl1.4/r
DISCLOSURE STATEMENT
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7& 8
Page 11
r h~r:\heJ'/Hu.j nmd~'ti,"\'" n
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Manheim
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lJennh L l .tt4 nhHif'
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-\ .rrh =u r r Hi }"~'l; ~~ q
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Ahchad N I.Ykode
\\"~1Ham H Rob~n~on
'\h'.,h.d R. \\^;mcl'
tJefH" D. Z.~.rtrn"in
Lufil)'ette \",b..",<I.., Bank
(;.arj' :\_ CkwdJ
[A.;t~ ,.:\. Uulh; ~':~q,
L ~\..nd;{'r\{JtI Uaub
"'-if a {S~Uy} Jane' (::l~unmon
'1 honla~ J MJl1.Hlt't;, E$.(j.
Ahn B. .\lobn. h,!.
Jamie p ,\hJ!\'i.dman
(,"raM" Nau
E Jirh Ri'ter
R"!"",, ,\,. Ropd
Jd'ud. Sl,mot!
FNll Bank. N.A.
Rubert () II"", h
H ;,ohare!:\ Gflflnyre
J~m.' D. I ..",kms
\'I,(:nJr':s. 'flipoi:
J"),Mme E. \\:dd~
l!:aw'ntowl\ 1'1-u.1'
("'naM M, Bowman,]r,
hulN, Ct",nprnn,Jr
I..<~ni$ ..J. f ~.i:u~tml
R.tYIWlD.i.{A. (tr.me
l.\,,,:dd R. !{;mh,}"
Lkmi L Lt:hm~H~
lk"""nLP. L",b
FWd] C. Mdk,rU Jr.
(;~.",~<::;ry SW'-dK
lk-law".... Nill..,naI &nk
f}are f-t.l.>t,ke"
}elt...')' \1. fned
Am"" :\, Hlggtn~
\lark E, Hundtr'
Grc@ N> J l( ti:\Of}
'!"try \. .\It!!,,e
Rrlc";,tjd. T \k}(~rt
Ralph \1;/ '1m/,<,,,
P R'lIdniphbylo,
Daw! T WHw."
Tht Bank
Jl'>, -ph F :\JA.Hl:"'-, {
k,.tfrt'v (j, '\Hn:rt\{~;L L~q
L~~;>f'ln.L N. Df:Snhone
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.\bmhmn " Op"l'"
"ngd" '\1. "nrdor
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The nank Di,'isionallln"-,,,J
nrst W\t.hington Dhi.ion
J;:unc~> R.Juh.ns.on,)r,
Timnrh)"J Lo'ch
~"phen R. \ldkr
Ahraham S. (>r;.lnJ~
,\ng.du \1 Srl'..du
The }>"opl". BallI. or Elklnn
H.J.rrv C, Btnwn
}"d~' E Ihrr
D()MlJ S. Hicks
Rohert { ), Plli\ll:.tfi\ f
",.J..m.:y R. ~lmpt'n
Ih,'"l K. W"illwm h
~kyla.ntb Cnmlt1"niry 'Bank
Norm.)n ~. B;mm
Hl;~n<.tuita Bnnihcle
lC,fK:ft P Corcnriln
Mid,.d IWpm
John K. WId","
.~>el A. !\'olltrt
Stt'!,h'" R. M,ller
{{;plU'Hlnd ~t'"M':fff(,'t't~. f': P,A,
De,.,;, II. ( l'Rourh
FlUi J. Pim,z>folto
\Htru:~n~), Snth't.'.)r
I o"e F. Smlth,)r
M;uk F $,,"u,, E.<q.
,N~:.HmAn m.~rth
Tht Colam"ia f1auk
Joe N. Il.JLml
Auand ~. 3h.Mn
.klm M. fumd, )..
Robert R. Jk,wi~,.lr.. EMl'
(;;MotU I. Ct,..k.Jr
ll,,~h E C"lc, .I r.
WInfield M Kdly Jr.
Htr!.Cod L Lal1gentlml
)",n", R. Moxlty III
John A, S,cal.hrra,) r.
Lawn~nt:.e \. Shulman l ~~;;!'
M;~u-.ri((." At ~l'mpk.m'
RoLt:'t"t N, 'mf,'1kw.~.Prt
Thr'oclore <.~. \'i:.'Hch'Xnhs
)am".} Will!),}.., E"l'
El..ajltth M Wright
DISCLOSURE STATEMENT
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7& 8
Page 12
1,1 I
~ ,;
Banking Subsidiaries:
Fulton Bank
Swineford National Bank
Lafayette Ambassador Bank
FNB Bank, NA
Hagerstown Trust
Delaware National Bank
The Bank
The Peoples Bank of Elkton
Skylands Community Bank
The Columbia Bank
Financial Services Subsidiaries:
Fulton Financial Advisors, NA
Dearden, Maguire, Weaver,
and Barrett, L.L.C.
Fulton Insurances Services Group
Residential mortgage
Landing offered tbrongb:
Fulton Mortgage Company
DISCLOSURE STATEMENT
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7& 8
Page 13
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)
Warren E. Sillgleloo (Pastor of Abounding Assembly Church}
'2. Ust all businesses that have a parent-subsidiaryl or affiliated business entityl
relatiom;hip with the applicant: (Attach list if necessary)
Selah, LLC
o Check here if the applicant is NOT a corporation, partnership, firm. business, or
other unincorporated organization.
PROPERTY OWNER DISCLOSURE
Complete tNs 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)
Fulton Bank
2, List all businesses that have a parent;"subsidiary 1 or affiliated business entitf
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,
~ ,.,
, & . See neXl page for footnotes
Does an offi:;ial 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?
CcrnliOO,o'll!1 Us.e Pennil ~
Fage Solto
~ 7/312007
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5105 PRINCESS ANNE / ABOUNDING GRACE
Agenda Items 7 & 8
Page 14
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DISCLOSURE STATE
ADDITIONAL DISCLOSURES
Ust 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
~rvices: (Attach list if necessary)
F,'1lton Bapl<
Perkins Construction Co
t "Parent-subsidiary relationship' means . a relationship that exists when one
corporation directly Of 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-
subsKiiary relatkmship,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 (ili) there is shared management or control between the business
entitles. Factors that should be considered in determining the existence of an affiliated
business entity relationship indude 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 othefwise share activities,
resources or persomel 0I'l a regular basis; or there is othenv1se a close working relationship
between the entities" See State and Local Government Conffict of Interests Act, Va. Code ~
22-3101.
CERTIFICATION: I certify that the inforrnatloo contained herein is true and accurate.
! understand that upon receipt of ootificalioo (postcard) that the application has been scheduled for
public hearing, I am responsible for obtamn19 and posting the required sign on the $lJbject property at
!east 30 days prior to the scheduled public !leanng according to ttle mstructlOns in this package. The
untlemlgned also consents to entry upon the subject property by employees of the Departmel1t of
Planning to photograph lmd,vleW the Site for purposes of processing and evaluating this application.
CooUU\4:ma! Use f'tmnil AppbOOrr\
Pege100i10
RIMs<<! 713ROO1
5105 PRINCESS ANNE I ABOUNDING GRACE
Agenda Items 7 & 8
Page 15
Item #8
Abounding Grace Assembly
Conditional Use Pennit
5102 Princess PJlIle Road
District 2
Kempsville
October 14, 2009
CONSENT
Joseph Strange: The next item is agenda item 8, an application of Abounding Grace Assembly,
for a Conditional Use Pennit for religious use, on property located at 5102 Princess Anne Road,
District 2, Kempsville, with three conditions.
Robert Beamon: Again, Madame Chair, Robert Beamon. I'm here on behalf of the applicant.
The conditions are acceptable. We appreciate being on consent.
Joseph Strange: Is there any opposition to this matter being placed on the consent agenda? If
not, the Chair has asked Henry Livas to review this item.
Henry Livas: The applicant requests a Conditional Use Pennit because of the religious activities.
The site was occupied by the Yoder Dairies for 65 years. Most recently, the dairy has ceased
operations. The applicant is currently located at 5105 Princess Anne Road, which is directly
across the street, and must relocate due to pending Capital Improvement Program Project, and
that has to do with the redesign of the Princess Anne Road and Kempsville Road intersection.
And that will impact where the applicant is currently located. Abounding Grace Assembly
conducts services Sundays from 10:00 a.m. to 1 :00 p.m., with 75 to 90 members in attendance.
Sufficient parking is located on the site. We concur with staffs approval recommendation, and
therefore, have placed it on the consent agenda.
Joseph Strange: Thank you Henry. Madame Chair, I make a motion to approve agenda item 8.
Janice Anderson: We have a motion by Joe Strange.
Eugene Crabtree: I'll second it.
Janice Anderson: A second by Gene Crabtree.
AYE 9
NAY 0
ABSO
ABSENT 2
ANDERSON
BERNAS
CRABTREE
HENLEY
HORSLEY
KA TSIAS
AYE
ABSENT
AYE
AYE
AYE
ABSENT
1,1 I
Item #8
Abounding Grace Assembly
Page 2
LIVAS AYE
REDMOND AYE
RIPLEY AYE
RUSSO AYE
STRANGE AYE
Ed Weeden: By a vote of 9-0, the Board has approved agenda item 8 for consent.
Item #7
5105 Princess Anne, L.L.C.
Change of Zoning District Classification
5102 Princess Anne Road
District 2
Kempsville
October 14, 2009
CONSENT
Joseph Strange: The next matter is agenda item 7, an application of 5105 Princess Anne, L.L.C.,
for a Change of Zoning District Classification from B-2 Community Business District and I-I
Light Industrial District to Conditional B-2 Community Business District on property located at
5105 Princess Anne Road, District 2, Kempsville, with two proffers.
Robert Beamon: Madame Chair, for the record, Robert Beamon. I'm an attorney here on behalf
ofthe applicant. We have read the conditions. They are acceptable, and we appreciate being on
consent.
Joseph Strange: Is there any opposition to this matter being placed on the consent agenda? If
not, the Chair has asked Henry Livas to review this item.
Henry Livas: The application requests a Conditional Change of Zoning from B-2 Community
Business and I-I Light Industrial to B-2 Community Business. The applicant also requests a
Conditional Use Permit because of the religious activities. The applicant's request for this
rezoning is nece~,sitated by the fact that the I-I Light Industrial does not permit religious uses.
The applicant is currently located at 5105 Princess Anne Road, which is directly across the
street, and must relocate due to pending Capital Improvement Program Project, and that has to
do with the redesign of the Princess Anne Road and Kempsville Road intersection. And that will
impact where the applicant is currently located. We concur with staffs approval
recommendation., and therefore, have placed it on the consent agenda.
Joseph Strange: Thank you Henry. Madame Chair, I make a motion to approve agenda item 7.
Janice Anderson: We have a motion by Joe Strange.
Eugene Crabtree: I'll second it.
Janice Anderson: A second by Gene Crabtree.
Ed Weeden: By a vote of 9-0, the Board has approved agenda item 7 for consent.
AYE 9
NAY 0
ABSO
ABSENT 2
ANDERSON AYE
1,1 I
Item #7
5105 Princess Anne, L.L.c.
Page 2
BERNAS
CRABTREE
HENLEY
HORSLEY
KA TSIAS
LIV AS
REDMOND
RIPLEY
RUSSO
STRANGE
ABSENT
AYE
AYE
AYE
ABSENT
AYE
AYE
AYE
AYE
AYE
Ed Weeden: By a vote of 9-0, the Board has approved agenda item 7 for consent.
CITY OF VIRGINIA BEACH
INTER-OFFICE CORRESPONDENCE
In Reply Refer To Our File No. DF-7551
DATE: October 14,2009
FROM:
Mark D. Stiles
~
B. Kay Wils~~
DEPT: City Attorney
DEPT: City Attorney
TO:
RE: Conditional Zoning Application; 5105 Princess Anne, LLC/Fulton Bank
The above-referenced conditional zoning application is scheduled to be heard by the
City Council on October 27,2009. I have reviewed the subject proffer agreement, dated
August 3,2009 and have determined it to be legally sufficient and in proper legal form. A
copy of the agr1aement 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
1,1 I
Document Prepared By:
Troutman Sanders LLP
222 Central Park Avenue, Suite 2000
Virginia Beach, V A 23462
AGREEMENT
THIS AGREEMENT is made as of this 3.,.J.. day of tASt'
2009, by and between FULTON BANK ("Owner", to be indexed as granto the current owner
of that certain property located in the City of Virginia Beach, as more particularly described
below; 5105 PRINCESS ANNE. LLC, a Virginia limited liability company ("Contract
Purchaser", to be indexed as grantor), the contract purchaser of the property (hereinafter referred
to collectively as the "Grantors"); and the CITY OF VIRGINIA BEACH, a municipal
corporation of the Commonwealth of Virginia (hereinafter referred to as the "Grantee", and to be
indexed as grantee).
WIT N E SSE T H:
WHEREAS, Owner is the current owner, and Contract Purchaser the contract purchaser
of that certain property located in the City of Virginia Beach, Virginia identified as GPIN 1466-
88-3703-0000, as more particularly described legal description attached hereto and incorporated
herein by reference as Exhibit A (the "Property"); and
WHEREAS, the Grantors have initiated an amendment to the Zoning Map of the City of
Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification
of the Property from B-2 and I-I to Conditional B-2; and
WHEREAS, the Property is currently subject to Proffers dated October 26, 1999, and
recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (the "Land
Records") in Deed Book 4178, at Page 1887 (the "Original Proffers"), as modified by Agreement
dated March 24, 2003, and recorded in the Land Records as instrument number
200306190094434 (the "Proffer Modification"); and
WHEREAS, the Grantee's policy is to provide only for the orderly development of land
for various purposes, including mixed-use purposes, through zoning and other land development
legislation; and
WHEREAS, the Grantors acknowledge that 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 B-2 are needed to cope with
the situation to which the Grantors' rezoning application gives rise; and
GPIN NO.: 1466-88-3703-0000
WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior to
the public hea:ing before the Grantee, as part of the proposed conditional amendment to the
Zoning Map, in addition to the regulations provided for in the existing B-2 zoning 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 are generated by the rezoning; and
WHEREAS, said conditions having been proffered by the Grantors and allowed and
accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall
continue in full force and effect until a subsequent amendment changes the zoning on the
Property covered by such conditions; provided, however, that such conditions shall continue
despite a subst:quent amendment if the subsequent amendment is part of the comprehensive
implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the
foregoing, thes<: 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 OJ 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 evidl~nce of such consent.
NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees,
and other successors in title or interest, voluntarily and without any requirement by or exaction
from the Grantee or its governing body and without any element of compulsion of quid pro quo
for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the
following declaration of conditions and restrictions which shall restrict and govern the physical
development, operation and use of the Property and hereby covenant and agree that these proffers
(collectively, the "Proffers") shall constitute covenants running with the said Property, which
shall be binding; upon the Property and upon all parties and persons claiming under or through
the Grantors, their heirs, personal representatives, assigns, grantees and other successors in
interest or title, namely:
1.
thereto.
1he use of the Property shall be restricted to religious uses and uses accessory
2. 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.
2
1,1 I
All references hereinabove to zoning districts and to regulations applicable thereto, refer
to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the
conditional zoning amendment is approved by the Grantee. The Original Proffers and Proffer
Modification are hereby terminated and revoked in their entirety.
The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia
Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of
the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions,
including (i) the ordering in writing of the remedying of any noncompliance with such
conditions, and (ii) the bringing oflegal action or suit to ensure compliance with such conditions,
including mandatory or prohibitory injunction, abatement, damages or other appropriate action,
suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the
issuance of any of the required building or occupancy permits as may be appropriate; (3) if
aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the
City Code, the cZO or this Agreement, the Grantors shall petition the governing body for the
review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an
appropriate symbol on the 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 Grantors and Grantee.
Upon acquisition ofthe Property by Contract Purchaser, Contract Purchaser shall succeed
to all rights and obligations of the "Grantors" under this Agreement, and Owner shall have no
further rights or obligations of a "Grantor" under this Agreement.
[Remainder of page intentionally left blank. Signature page to follow]
3
IN WITNESS WHEREOF, the undersigned Grantors execute this Agreement as of the
date first written above.
GRANTOR:
COMMONWEAL TH/ST ATE OF I~.p, ';,....; 9-
CITY/COUN'rroF ~,,~,~ ~; ~/QCL c...- ,to-wit:
The fon:going instrument was acknowledged before me this ~ day of U i..J;-,
2009, by -.f1...;j~ t, O)l. I ,f). Au j f; ~ ' who is personally known to me or has roduced
as identification in his capacity as (5.fL ~ a:>~
v:: f!.fL Pr e J: d f!.. n f on behalf ofthe company.
~~
Notary Public
~
My Commission Expires:
III ;)o.J LC~ <1
I '
Registration No, d- .5 3 r 09
[NOTARIAL SEAL/STAMP]
I "'" Commonweal~h of Virginia
=~a . l Caroyln l. ES3nr. ,a.s.:;!! - Nlilllrf..P. IJtlllc
~ ~) I Commission No. ,;mJg~~"
""fll I". My Gommiasioi1 Expll'll \1 ~(jIlWD
354884
4
I" I
GRANTOR:
5105 PRINCESS ANNE, LLC,
a Virginia limited liability company
By: ~ ~~
Name: ~R6(::) :Pe-Ji!J<J NoS
Title: ~r
COMMONWEALTH/STATE OF Vip..c;/AJlA
CITY/COUNTY OF VA c ~f , to-wit:
?/...J J.A J ~ 'r-.
The foregoing instrument was acknowledged before me this _ day of r'V'-' i5. ,
200~ Ff2.C;D Pe14'-ItJ ~ . . ' w.ho is. pers~nally kno.wn to me ,or has yroduced
VA' ~' i" i.-I Q::7'lfi€" as IdentIficatIOn III hIS capacIty as ;\4AAA ({;.f1Z-.
on behalf of the company.
/~~ 17'1. ~4;f~
Notary Public
[NOTARIAL SEAL/STAMP]
My Commission Expires:
Registration No.
5
Exhibit A
Legal Description
All that certain lot, piece or parcel of land with the buildings and improvements thereon situate,
lying and being in the City of Virginia Beach, Virginia, and being known, numbered and
designated as Parcel "A" 3.474 Acres as shown on that certain plat entitled "Subdivision Plat of
Yoder Dairy Property (DB 4151, PG 450) (MB 76, PG 51) (MB 37, PG 13)" which said plat is
duly recorded in the Clerk's Office of the City of Virginia Beach, Virginia in Map Book 293, at
page 7.
6
NEW FIRST COLONIAL ASSOCIATES
Relevant Information:
· Kempsville District
. The .applicant proposes to rezone the existing R-15 Residential to
Conditional 0-1 Office and develop the site with a one-story office
builcling, 26 parking spaces, and landscaping.
. The ,"ear of the proposed building runs parallel to the side property
line adjacent to the residential lot to the east.
. A 15..foot wide landscaped area with a six-foot high fence provides a
buffE!r between the rear of the building and the residential lot.
Evaluation and Recommendation:
· Planl1ing Staff recommended denial
· Planl1ing Commission recommends approval (6-4-1)
· Thert:t was opposition.
1,1 I
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: NEW FIRST COLONIAL ASSOCIATES, Chanae of Zonina District
Classification, R-15 Residential District to Conditional 0-1 Office District, 5315
Bonneydale Road. KEMPSVILLE DISTRICT
MEETING DATE: October 27,2009
. Background:
The applicants propose to change the zoning for a 21,500 square foot parcel
from R-15 Residential to Conditional 0-1 Office. A single-family house currently
occupies the site. The purpose of the zoning change is to construct a 3,600
square foot office building that will provide expansion area for an orthodontic
practice located on a parcel zoned 0-2 Office to the west of the subject parcel.
. Considerations:
The submitted concept plan shows a proposed one-story office building situated
30 feet from the front property line parallel to Bonneydale Road, 15 feet from the
side property line (adjacent to a residential dwelling to the east), and 68 feet from
the rear property line. The conceptual plan also shows landscaping along the
front of the site and within a 15-foot wide buffer adjacent to the residential
dwelling to the east. A fence is also proposed within the buffer, five feet from the
property line, with evergreen shrubs along the outside of the fence. On the inside
of the fence the applicant proposes evergreen trees. Twenty-six (26) parking
spaces are depicted on the plan.
The proposed exterior building materials for the one-story building are red brick
and light gray siding. The roof is to be constructed of charcoal gray asphalt
shingles. The proposed trim and decorative panels are Williamsburg Gray. The
narrowest portion of the building is parallel to Bonneydale Road and is in line with
the adjacent residential structure.
Staff concludes that good architectural and site designs are not acceptable
substitutes for good land use planning. The focus must be on applying sound
land use planning practices first, and then addressing design considerations.
This area, particularly on the east side of Kempsville Road, is a stable residential
neighborhood. The proposed use is not compatible with the stable residential
area adjacent to the site. The activity and overall character of the proposed use
would encourage continued efforts to strip non-residential development into the
neighborhood and would encourage future rezonings introducing additional
NEW FIRST COLONIAL ROAD ASSOCIATES
Page 2 of 2
incompatible uses in this established neighborhood. Moreover, staff finds that
there is available vacant commercial space in the immediate area, providing
opportunities for larger floor area that can meet the applicant's needs for
expansion. Staff, therefore, recommends denial of the request.
There was opposition to this request.
. Recom mendations:
The Planning Commission passed a motion by a recorded vote of 6-4 with 1
abstention to approve this request as proffered.
. Attachments:
Staff Review and Disclosure Statement
Planning Commission Minutes
Location Map and Summary
Recommended Action: Staff recommends denial. Planning Commission recommends
approval.
Submitting Department/Agency: Planning Department
City Manage~~~ It. '06~
II I
12
September 9, 2009 Public Hearing
APPLICANT AND PROPERTY
OWNER:
NEW FIRST
COLONIAL ROAD
ASSOCIA TES,
L.L.C.
STAFF PLANNER: Faith Christie
REQUEST:
Conditional Chanqe of Zoninq (R-15 Residential to Conditional 0-1 Office)
ADDRESS I DESCRIPTION: 5315 Bonneydale Road
GPIN:
14654920690000
ELECTION DISTRICT:
#2 KEMPSVILLE
SITE SIZE:
21,500 square feet
AICUZ:
Less than 65 dB DNL
SUMMARY OF REQUEST
The applicant proposes to rezone the existing R-15 Residential
to Conditional 0-1 Office and develop the site with an office building, associated parking, and
landscaping. The submitted concept plan depicts a proposed one-story office building situated 30 feet
from the front property line, 15 feet from the side property line adjacent to the residential dwelling, and 68
feet from the rear property line. The conceptual plan also depicts landscaping along the front of the site
and adjacent to the residential dwelling to the east. The proposed landscape buffer adjacent to the
residential lot to the east is 15 feet in width. In the 15 foot buffer, a fence is proposed five feet from the
property line with evergreen shrubs along the outside of the fence. On the inside of the fence the
applicant proposes evergreen trees. Twenty-six (26) parking spaces are depicted on the plan.
The submitted conceptual elevation plan depicts a proposed one-story building to be constructed of red
brick and light gray siding. The roof is to be constructed of charcoal gray asphalt shingles. The proposed
trim and decorative panels are Williamsburg Gray. The proposed 35-foot width of the building fronts on
NEW FIRST COLONIAL ROAD ASSOCIATES, L.t..C.
Agenda Item 12
R~ge 1
Bonneydale Hoad and is in line with the adjacent residential structure. The conceptual elevation plan also
depicts a four-foot high solid fence that graduates to six feet in height along the eastern property line
adjacent to the residential structure. Evergreen shrubs and trees are depicted adjacent to the fence.
LAND USE AND ZONING INFORMATION
EXISTING LAND USE: Single-family dwelling
SURROUNDING LAND
USE AND ZONING:
North:
South:
East:
West:
. Bonneydale Road
. Across Bonneydale Road are single-family dwellings I R-15
Residential
. Offices I Conditional B-1 Business
. Single-family dwelling I R-15 Residential
. Office I 0-2 Office
NATURAL RI:SOURCE AND
CULTURAL FEATURES:
There do not appear to be any significant natural resources or cultural
features associated with the site.
IMPACT ON CITY SERVICES
MASTER TRANSPORTATION PLAN (MTP\ I CAPITAL IMPROVEMENT PROGRAM (CIP\: Bonneydale
Road in front of this application is a two-lane undivided collector street. No Capital Improvement Program
(CIP) projects are slated for this roadway.
Kempsville Rc,ad in the vicinity of this application is a four-lane divided minor urban arterial. The Master
Transportation Plan proposes a divided roadway with a bikeway within a 150-foot right-of-way. A Capital
Improvement I=>rogram (CIP) project is slated in the vicinity of this site. Indian River Road (CIP 2.011) includes
construction of an eight-lane divided highway within a 190-foot right-of-way from Centerville Turnpike to Ferrell
Parkway and full improvements at the Indian River Road intersections with Kempsville Road, Lake James
Drive, and Thompkins Lane. Currently, this project is on the Requested But Not Funded Project Listing. The
current limits on the Indian River Road I Kempsville Road intersection improvements do not extend to this site.
Public Works I Traffic Enaineerina Comments
Right-of-way improvements will be required along the Bonneydale Road frontage of this site. Improvements
include, but are not limited to, pavement widening, curb and gutter, sidewalk, drainage, and street lighting for a
30-foot roadway typical section. The Concept Plan is showing some of these improvements.
TRAFFIC: Present I
Street Name Volume Present Capacity Generated Traffic
Bonneydale Road 930 ADT 9,900 ADT 1 Existing Land Use <!- 11
ADT
NEW FIRST COLONIAL ROAD ASSOCIATES, L.\.C.
Agenda Item 12
Pag~ 2
1,1 I
Proposed Land Use" - 42
ADT (7-AM Peak Hour
Vehicles; 6-PM Peak Hour
VehiclesJ'
Average Daily Trips
2 as defined by a single-family dwellin9
3 as defined bv a 3,600 square foot office
WATER: This site is connected to City water. There is a six-inch City water main along Bonneydale Road
Boulevard. The existing 5/8-inch meter may be used or upgraded to accommodate the proposed development.
SEWER: This site is connected to City sanitary sewer. The applicant shall provide an analysis of Pump Station
#444 and the sanitary sewer collection system to ensure future flows can be accommodated. There is an
eight-inch City sanitary sewer gravity main along Bonneydale Road.
SCHOOLS: School populations are not affected by the request.
EVALUATION AND RECOMMENDATION
Recommendation:
Staff recommends denial of this request.
Comprehensive Plan:
The Comprehensive Plan designates this site as being within the Primary Residential Area. For properties
within Primary Residential Areas, the Plan emphasizes the need to preserve and protect the overall
character, economic value and aesthetic quality of the stable neighborhoods and to not support
incompatible uses. Established residential neighborhoods will be protected against invasive land uses
that, due to their activity, intensity, size, hours of operation or other factors, would tend to destabilize
them. Non-residential rezonings should not intrude on the peripheries of residential neighborhoods to the
detriment of those neighborhoods. The proposed use contributes to strip commercial development and
would expand a trend of rezonings and incompatible uses in this established neighborhood.
Evaluation:
This area of Kempsville experienced explosive growth in the 1960s, '70s, and '80s. This site was denied a
rezoning from the then R-4 Residential to B-2 Community Business in April 1979. The site, with four other
contiguous parcels, again requested a rezoning from the then R-4 Residential to B-2 Community
Business in August 1981. Staff at the time recognized that the proposal was inappropriate given the
stable residential neighborhood adjacent to the sites. The request was modified to 0-1 Office district with
requirements of standard site improvements and a 15-foot buffer with an eight-foot high fence along the
rear of the sites. The 0-1 Office District provides for low-intensity uses that are generally compatible with
adjacent neighborhoods.
The applicant did try to work with staff to find a reasonable solution to the problem of the proposed
rezoning encroaching into the adjacent neighborhood. The proposed building is one-story, as are many of
the homes in the neighborhood; the proposed building is 3,600 square feet, which is similar to many
NEW FIRST COLONIAL ROAD ASSOCIATES, lot.C.
Agenda Item. 12
Page 3
homes in the city. The applicant is providing a 15-foot buffer with fencing and evergreen plants adjacent
to the residertial zoning. The applicant is sharing an entrance with the offices to the west. The applicant
is providing double the number of parking spaces required. But these concessions do not alleviate the
fact that the n:lquest is not consistent with the Comprehensive Plan recommendations for the area.
It is Staff's conclusion that good architectural and site designs are not acceptable substitutes for good
land use planning. The focus must be on applying sound land use planning practices first, and then
addressing dosign considerations. The area, particularly on the east side of Kempsville Road, is a stable
residential ne ghborhood. The proposed use is not compatible with the stable residential area adjacent to
the site. The activity and overall character of the proposed use would contribute to strip non-residential
development and would encourage future rezonings introducing additional incompatible uses in this
established n,~ighborhood. Staff therefore, recommends denial of the request.
PROFFERS
The followinU 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,"
(91 07(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve
as conditiomi restricting the use of the property as proposed with this change of zoning.
PROFFER 1 :
The Grantor shall develop the Property in substantial conformity with the conceptual site plan prepared by
Porterfield D/:lsign center, entitled "Concept Plan, 5315 Bonneydale Road for Savage, Sabol & Visser, L TO",
dated Octobm 13, 2008, (the "Concept Plan") a copy of which is on file with the Department of Planning and
has been exhibited to the City Council.
PROFFER 2:
The Grantor shall develop the structures on the Property in substantial conformity with the conceptual site
elevations prepared by Porterfield Design center, entitled .Concept Elevations, 5315 Bonneydale Road for
Savage, Sabol & Visser, L TO", dated October 13, 2008, (the .Concept Plan") a copy of which is on file with
the DepartmEmt of Planning and has been exhibited to the City Council.
PROFFER 3:
The Grantor~hall not develop any structure on the Property in excess of twenty-two feet (22') in height.
PROFFER 4:
The Grantor :)hall provide landscaping and fencing on the Property in substantial conformance with the
Concept Plan and Site Elevations.
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 are acceptable as they insure the site will be developed in accordance
with the submitted preliminary site and elevation plans. However the proffers lack assurances that the
proposed USE'S limited to the site are low-intensity uses that may be compatible with the surrounding
NEW FIRST COLONIAL ROAD ASSOCIATES, L.t.C.
Agenda Item 12
Page 4
1'1 I
neighborhood. Additionally the proffer agreement does not address hours of operations for the business.
Both of these issues are crucial for the quality of life of the surrounding neighbors. Notwithstanding these
issues, however, staff cannot support this request.
The City Attorney's Office has reviewed the proffer agreement dated February 28, 2009 and found it to be
legally sufficient and in acceptable legal form.
NEW FIRST COLONIAL ROAD ASSOCIATES, L.LC.
Agendalten'\* 12
Page 5
AERIAL OF SITE LOCATION
NEW FIRST COLONIAL ROAD ASSOCIATES, L.L.C.
Agenda Item 12
Page 6
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PROPOSED SITE PLAN
NEW FIRST COLONIAL ROAD ASSOCIATES, L.l.C.
Agenda Iteil12
Page 7
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PROPOSED ELEVATIONS PLAN
NEW FIRST COLONIAL ROAD ASSOCIATES, Lt....C.
Agenda Iterqr 12
Page 8
1,1 I
[J
Conditional Zoning from R- 15 to Conditional 0--/
1.
9/14/81
Rezoning (R-4 Residential to B-2 Business
- modified to 0-1 Office)
Rezonin R-4 Residential to B-2 Business
Rezoning (0-2 Office to B-2 Business)
Conditional Use Permit (Church)
Conditional Use Permit (Church)
Rezoning (R-4 Residential to B-2 Business
- modified to 0-1 Office
Rezoning (0-2 Office to B-2 Business)
Rezoning (R-4 Residential to B-2 Business
- modified to 0-1 Office
Rezonin 0-2 Office to B-2 Business
Conditional Use Permit Truck Rentals
2.
4/9/79
12/11/07
3.
12/2/03
1/11/94
9/14/81
1 0/26/04
4.
5.
9/14/81
5/25/95
1/26/93
Approved
Denied
Approved
Approved
Approved
A roved
Approved
NEW FIRST COLONIAL ROAD ASSOCIATES, L.t..C.
,Agenda Item 12
Page 9
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DiSCL SURE STATEMENT
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ADDITIONAL DISCLOSURES
Ust all krown contractors or busmesses that nal/e r)C ere nc1e~'2rVh::es N\th respect
to the requested property use. induding but net <)f archltecturai
services, real estate services financial serVices 3C\.::Oli38r' <Cf::S :md legal
services (Attach list if necessary l
Porterfield DeS1Qn Center - engmeering/land planning/archItectural
Troutman Sanders LLP - legal
_.._,_,____~__,___._,_~.~___._...".._,____.~___~,_._.__.______..__..__,.~,..._.~_.._,.____.~...._._._,.________'_.___~_.~A_...'^..__
iparent..subsidiary relationsl1ip" means 3 relationship that eXists when one
corporation directly or indirectly owns shares possessing more than percent of the voting
power of another corporatIon" See State and Local Government Conflict of Interests j...>.,cL Va.
Code 9 22.3101.
? ",u,ffiliated business entity relationship' means 'a relationsllip, other than parent-
subsidiary relationship, that eXists when Ii) one business entity has a controlHng ownership
interest in lhe other business entity, Iii} a controlling owner Hl one entity is also a controliing
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 e ltities share the use of the same offices or employees or other-vise share activities,
resources or personnel on a regular basis: or there is other\tvise a close working relationship
between the entities" See State and local Government Conflict of Interests Act, \/a. Code S
2.2-3101.
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CERTIFIC A liON: j certify that Ule inforrnation contained herein is true and accurate.
I understand that. upon receipt of notification (postcard) that the application has been sc!leduled for
public hearing \ am responsible for obtaining and posting the reqUIred sign on Ule subject property at
feast 30 day:; prior to the scheduied public tlearing according to the instructions In this package The
undersigned alSO consents to t-.:ntry upon the subject property by en"\p!oyeBs of the Department of
Planning to photograpn rc: view the site for purposes of processmg and evaiuating this application
Appi;Ga;;tsSlg-;'-atu'i:;---.-.------------.-------- Pnnl Name
Same As Applicant ______._____
Property Ovvner s S!gnatufB (if different than 3ppHcanti
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DISCLOSURE
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APPLICANT DISCLOSURE
IT th:.~.:nt is a i~orpn["cltion. Ud ' :1' ~:ll,.;IPt'SS. ",r (U- ,. un:"
}rqclfiL:;:;:lliun. ,j)rnplete the ftdlov\Hlq.
1 List th\:; Jpplic;,wt name fo!lO',ved flV Ul\.; YT1',sdl ,; 1.~f;: '-,'p ;-:,'f'~
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2. List all busH1esses that ilave a parent-subsidiary or afnliatr::i! Siness entity
n~lat!onship with the Clpplicant: (Attach list if necessary)
N Clilt,
o Check here if the applicant is NOT a corporation, partnership, firm, husiness. or
other unincorporated organization.
PROPERTY OWNER DISCLOSURE
Complete this section only if property owner is cJifferent frotn 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 offjl:;ws. members,
trustoes. partners. etc. below: (Attach list if necessary)
Same as Applicant
2. Ust all businesses that have a parent-subsid!ary' or affiliated business entity::
relationship with the ctpplicant: (Attach list if necessary)
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008s,m off!cial or employee of the City of VirGinia Beach have an interest in the
subject land') Yes .... No __~_
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Item #12
New First Colonial Road Associates
Change of Zoning District Classification
5315 Bonneydale Road
District 2
Kempsville
September 9,2009
REGULAR
Donald Horsley: The next item is item 12, New First Colonial Road Associates. An application
for a Change of Zoning District Classification from R-15 Residential District to Conditional 0-1
Office District on property located at 5315 Bonneydale Road, District 2, Kempsville.
R.J. Nutter: Thank you very much Mr. Horsley. Madame Chairwoman, and for the record, my
name is R.J. Nutter, and I'm an attorney representing the applicant, in this case is New First
Colonial Road ABsociates. New First Colonial Road Associates, ladies and gentlemen is really
an Orthodontic dental practice by the name of Savage, Sabol and Visser. My clients have been
in this practice for well over 20 years, and many of them are second generation orthodontists.
Their parents had the same practice for a period of time before that. They have been a part of
this community fi)r better than 30 years, and this location in particular that I'm going to talk to
you about for an excess of 20 years. Their other offices are small. All of their offices are
locations just like this, with one exception. Forgive me, but having said that, they really are part
of an area. They are not another piece of 0-2 or 0-1 on a zoning map, as so often these maps
tend to depict. They are part ofthis community, part of that neighborhood, and a few of them
have resided there for a period in excess of 20 years. Also, I want you to know about them
before you know .:tbout their practice, what they do and the services that they render. They have
rendered this valuable community service, which if any of you have children, you may have had
braces or they have had braces. If you're lucky enough to have children that don't have to have
braces, then my hats off to you. I will also tell you that the smaller portion of practice is for
adults. You may :recall me standing up here for about 2 Yz years with braces, and they took care
of my braces when I needed them, after having taking care of my children's. So, I can
personally vouch for their services, their demeanor, and the fact that we have never had any
trouble in their otnces. They are always a wonderful place to go, and we never had any trouble
with adjacent property owners or anyone else for that matter in the residential area. What's
happened is the d(:mand for their business has grown. People are more interested in how they
look. Their teeth, l:heir cleanliness, and their health, and that is a part of their process. So, they
wanted to expand their business at this location, and in the process ofthat, it really set out to
accomplish several goals. The first of which was to be compatible, and I'll go over these in a
second with you, to be compatible to solve. The only problem that we have discerned from
talking to resident~ in the area is that they currently cause to this area, that they wanted to correct
is the parking problem. I'll tell you about that. And a third is to do this in a way that met with
support of at least the immediate adjacent property owners with whom they would have to live.
If I can go to the she plan Stephen? I'll show you how we tried to accomplish that. First of all,
their current offic€;: is located, this building right here, is where their current office is located.
This is Alpha condominium. Their portion of the building is right in here in the far corner. And
1:1 I
Item #12
New First Colonial Road Associates
Page 2
part of what they want to do is to build a one-story structure right here, to face the structure of
the existing office, not the residential area. The side portion of the building will look just like a
normal residence, which you will see in a second. But your entrance way will be here and across
the back, we've done a complete buffer program. First of all, we've increased the buffer from 10
feet to 15 feet. But within that area, instead of just Class I landscaping, which is required by the
code, we've put Class I landscaping inside our property, first along this line, then we put a six
foot solid fence, which is not required, and then we put Category IV landscaping behind that
fence. So, not only is there nothing on this side of the building other than a fire door and some
windows for light, there is no access and it is completely screened from the adjacent residential
home. In addition to that, the access way, this property like every other lot has direct access to
Bonneydale, we eliminated that access way on this application so we could come in through the
existing office area. Therefore, there would be no further intrusion down Bonneydale by anyone
coming to this site then there is today. There would be no expansion of that, and there would be
one less curb cut on Bonneydale. And then finally, because we're doing that, it is not shown on
this picture, over this exhibit, but if you went on the van trip, I will tell you there is a large
dumpster right here. That dumpster currently services the office facilities that are here today.
That dumpster gets removed from this site entirely and gets put back on this site. Actually it is
going to back up in this corner right up in here. So, it is back between the existing offices. Now
we are going to focus our attention on this site, but I will also tell you that the property next door
to us, down to about here is zoned B-1 Commercial property, so we have 0-2 on this side, B-1
on this side, and R -15 on this side. One gentleman is here to speak in favor of the application,
Matt who owns this property, and we met several times with my client, in particular to make sure
that he was okay. So, I'm happy to tell you that we have the support of Matt and his family, as
well as the office condominium owners here. I will tell you that is no small feat. Some of you
may know the dentists in there. They also wanted to make sure this worked with their practice
and it didn't hurt them. It was compatible with their building. Can I show the elevation
Stephen? Thank you. As I indicated to you, we also wanted to show that the building would be
compatible. This would be the view of the building from Bonneydale. As you can see it looks
completely residential in nature. The rear of the property, what the neighbor is going to see is
right along here. This is with the fencing and landscaping. And then the inside of the office,
when you look inside the parking lot, this is how the building will look. It is one-story. We have
a restriction in the ordinance that says not higher than 22 feet in height. It is a hip roof as you
can see, residential in nature with residential features. We've tried to be both compatible and
solve the parking problem. Remember, when I told you that parking was in excess here.
Sometimes there is overflow parking on the street, so in this case we literally doubled our
parking requirement. We're required to have 13 parking spaces for this structure by code, we're
providing 26 parking spaces to make sure that we eliminate the problem that some of the
neighbors were exhibiting before. What we did, as I told you, is that we went out, and I think
each of you, and staff has delivered to each of you, but if not, I have copies ofletters in support
from both the adjacent office building, Mr. Townsend Brown, Dr. Townsend Brown, as well as
three residents of the neighborhood, who are all in favor of the application. I'll be happy to pass
those out. Mr. Livas, I'll put some on your side. Thank you. Mr. Ripley, if you wouldn't mind.
We do have opposition so I'll reserve some time for comment on that process. We did try to
meet with the opposition unsuccessfully I'm afraid. But we did hold out an opportunity to meet
with them on numerous occasions. I've sent them copies of the applications and the exhibits that
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I have explained to you all today. But I'll be happy to answer any questions. We believe we
have worked as well as we could with staff. We tried to follow every suggestion they made to
us, and most have taken the conditions of these residents. I consider these people residents, even
though they don't typically live there. They have been in the same neighborhood for over 20
years. They hav<;: treated many of the people in the neighborhood. You are going to see one
letter from one lady who is a current client, so they really provide a service to this area. We
would hope that you would recommend approval of the application, and I'm happy to answer
any questions that you might have about the applicant or application.
Janice Anderson: Thank you. Are there any questions for Mr. Nutter? Henry?
Henry Livas: From a practical point of view, I think you have done a great job as far as the
transition from the office over to the neighborhood, the way you've done the landscaping, the
turning of the building, and all of that. However, how do you answer the questions of the
professional planners that say we're into an encroachment situation? I think some people can
realize this as gre:lt practical value, but they are stuck on the theoretical things.
R.J. Nutter: I agree with that theory, but I think you have to look at the neighborhood at little bit
larger. I don't think these are really too incompatible uses. I think a use that provides a service
like this is a compatible use. In fact, as you know, we use office as a buffer to residential and
office and multi-family as a buffer to commercial all the time. So, I don't see anything
significantly different in that process. What you really have is a long term matter in this case it
happens to be a small dental practice that wants to grow a little bit. To do that, they done it in
conjunction with l:he residents next door, and therefore, I don't really think it's an intrusion. I
think it is a natura.l growth. You are going to see a neighborhood expansion of homes. In an area
like this where a small practice. If they were coming in to put a GEIcO office, I would say wait
a minute. That is a different fish. But because of what this is, I feel like it is a very comfortable
natural expansion of something that has been there for over 20 years. That is why I don't believe
it. I don't see it as a comprehensive plan. I don't think there is a line as solid as the staff would
have you believe in this case.
Janice Anderson: Are there any other questions? Go ahead.
Ronald Ripley: Mr. Nutter, you mentioned there is a Category I landscaping buffer between the
two pieces. Do you know the species or anything like this at this point?
RJ. Nutter: Actually Ron, what we're doing is the Category I that is actually required. What
we're doing is putting in Category I first, which is low level on our property line. This is all
along our property. We're putting in first level I, which I believe is some small plantings that
we're going to let Matt pick out. Then right behind that we're putting in a six-foot high fence on
our property, which is not required by Category I, and then immediately behind that fence in that
15-foot buffer we're putting in Category IV, so it will be a combination of Evergreen, and
Deciduous trees that we're completely letting Matt, the neighbor pick that landscaping.
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Ronald Ripley: Let me ask you a question about parking. Currently, I noticed that one ofthe
letters that was in our package indicated that sometimes there is parking occurring along the
street now as a result of the operation that is there now?
RJ. Nutter: Yes. It's there today. Because my clients right now only practice there three days a
week and some of the other practices in that existing building operate under similar time
restrictions. They are self imposed time restrictions, but on occasions when they are there
together, they will have a number of clients who park on the street because the parking lot is full.
Even though they are meeting the required parking requirements, that is still that problem. So,
we want to try to address that by providing additional parking well beyond what we're required
to do.
Ronald Ripley: What were you required? I got the 26.
RJ. Nutter: We were required to provide 13.
Ronald Ripley: Thirteen.
RJ. Nutter: And we're providing 26.
Ronald Ripley: Okay. Thank you.
RJ. Nutter: Yes sir.
Janice Anderson: Are there any other questions? Thank you.
RJ. Nutter: Thank you very much.
Donald Horsley: We have another speaker in support. Matt Nettesheim.
Janice Anderson: Welcome.
Matt Nettesheim: Hello. I'm Matt Nettesheim. Is that the buzzard right there? I live in this
house right here (pointing to PowerPoint). And I've lived there for quite some time now. And,
there has always been a parking problem with the businesses right there. There is always an
encroachment into the neighborhood with people parking along this street. Sometimes they will
pull into my driveway because they haven't been able to find a place to park, and they will pull
into my driveway to turn around. They will go down this corner. I find the parking an
encroachment into where I live. I have seven children. My children, and I've warned them
about playing out there a lot of times because of the cars and the different situations right there.
So, when I was approached with this idea of doing this, I was thrilled to death that they had an
idea of solving the problem. And, now is it only solving the problem of the parking issue with
the entrance right here and not right here (pointing to PowerPoint), I'm going to see less go down
my street going into my driveway, turn around. They're going to go directly in there and have a
place to park. This is going to resolve that issue right there. Not only that, the current way that
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they are going to do this is going to be beautiful. Acredale is a beautiful neighborhood, but the
design character is not going to hinder. I don't know if you saw a picture of the house before
that was on then::, but the house on there is very, very dilapidated. I knew the neighbor before
there. He didn't have any heat. They had a wood burning stove so they would have smoke
blowing into my house all the time. No matter what happens that house is a mess right now. It
is an awful mess. If this doesn't happen he is probably going to sell the house and somebody
else is going to come in there. It is going to be a worse problem in the future if they don't do
this. I think this just solves the whole issue right there. It was just a nightmare. The smoke
would just blow down and go into my house. It is just a mess. So, this whole idea of doing this
is going to be ae~:thetically nice. It will have less encroachment with those cars. They're solving
the car issue right there. The dumpster and everything is just a beautiful idea. I've had a
neighbor come knock on my door, and say, well I'm concerned about this. I'm concerned that
they're going to encroach into our neighborhood. And, personally, I don't think the other
neighbor who ha:l gone around and is trying to get support to go against this has any idea,
personally. It's nothing personal against them. I'm thinking they just want to make a battle out
of nothing becamie hands down being a next door neighbor, this is a help. This is a huge, huge
help to the neighhorhood, and the neighbor may have drummed up a little support against this.
Being the next door neighbor I know the problem because of my seven children. I've thought
about it a lot. I hope this goes through. I hope it goes through. I hope it goes through. I hope it
goes through.
Janice Anderson: Any questions of Matt? Thank you.
Donald Horsley: The first speaker in opposition is Pat Ferguson.
Janice Anderson: Welcome.
Pat Ferguson: Good morning. Thank you for letting us to come to share our thoughts about this
request. First of all, let me tell you I am a native of Kempsville.
Ed W eeden: Statl~ your name for the record please.
Pat Ferguson: Pa: Ferguson.
Ed Weeden: Thank you.
Pat Ferguson: I have lived in Acredale for over 20 years. The problem is severe on this corner.
I would like to COlTect a couple of things that I heard being made as statements here. The parking
is every day. There are already 40 spots for 5,000 plus square foot building and it doesn't suffice.
How is 26 going t:> take care of 3, OOO? It's not. Our kids are in danger if they walk on that
corner. There are accidents that occur there all the time because it is trapped by the parking. You
already have a Comprehensive Plan for the City that says this is not going to be allowed. It
shouldn't have been allowed to begin with. We're very passionate about the quality of life in
Acredale. We livt: there because of that quality oflife, and if the City Council starts amending
that because the building looks better than the current residence, that is a poor decision. As far
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as the residents now that are there, this doctor's group has owned it since 2007. Why haven't
they fixed it up, because this was their intent all the time. And this group of doctors, I have
pictures of their other practices and they are not in blending view areas as they propose. I have
with me today, if you would like to see them. I have also with me today over 70 signatures of
neighbors that feel exactly like I do, that are against this. They are tired of it. They not only turn
around in his driveway, they go back through the neighborhood, and cause more traffic through
the entire subdivision. This is a problem for us because we see it as a domino effect. We're
already at a very big hub in Kemspville, a very busy area. And if you start allowing 26 more
cars to come down that street, and they have to start turning around somewhere, you created
another problem for us. And then you created standards for other neighbors and other
neighborhoods. What is to stop the neighbor next door to this one from saying, hey, I'll see you
my property. This is a residential community. And the Planning Department has worked
diligently through two different designs. And they have worked with this applicant over and
over again to come up with a doable solution, and there just isn't one. And again, to allow this is
to allow more of the same. We've taken pictures. We have the petition with us today. We can
speak to a lot ofthings, but the bottom line is that if you allow this you're setting a precedence
for the next house down the street. And with 70 signatures, let me tell you how that occurred.
The sign is so unnoticeable in the front yard, its red and the house is red, and people couldn't see
it. All of a sudden neighbors started talking about it amongst themselves. It wasn't one
neighbor. It's 70 neighbors. This is a 292 parcel neighborhood, and in less than a week, we were
able to go out and reach the neighbors who were home, that weren't on vacation and sign a
petition that quickly just by 70 residents in a 292 parcel. That's overwhelming. That's the voice
ofthe people in Acredale. Now, we have gotten phone calls from Me. Nutter. We really didn't
see a point debating what they were proposing. We understood it. It was comprehensive, but it
was not acceptable. And we feel very strongly about that. We ask that you listen to this, and not
approve it. We live there. Many of us have there. I've lived in Kemspville all of my life, all of
my life. I own a business in Kempsville. I am passionate about my community. And I want to
make sure that my kids. By the way, my son has bought a house in that neighborhood and
generations are moving back in. And they want us to help preserve the future for them as well.
So, please Commission, don't approve this. You have not been given all the correct information
today that I feel we support everything against approving it. But your own Planning Department
and your own people have said no to it. And they have done their job. So, please accept what
they have proposed, and deny this request. Thank you.
Janice Anderson: Ms. Ferguson, your handouts, can you hand them to Mr. Redmond? The
petition, and the pictures.
Pat Ferguson: I'll start with the pictures.
David Redmond: Thank you.
Pat Ferguson: First on the pictures you're going to see the property itself after hours. You're
going to see the 40 lots of parking, which are on the front of the property and on the back. The
property is owned by a condo association, so they are blended use spaces. If a doctor is moving
out of a 900 square feet and 3,500 square feet, he is growing, and that means that his business is
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going to grow. And that means that this problem is going to grow. Also, the petition, I'll hand
that to you as welL Just so you know, it took anywhere from 15 to 30 minutes to sit down with
each one of these people that signed this petition to go over with them the plans that we have.
We have detailed plans. We have the new plans that were just resubmitted maybe two weeks
ago to us. We sat down with everyone we could once we had all the final documentation and
presented to them the facts. And they felt as strongly as we did about it.
Janice Anderson: Are there any questions of Ms. Ferguson? Go ahead AI.
Al Henley: Yes. Can you see on this aerial your residence or where you live in Acredale?
Pat Ferguson: I don't think you can. I live back one more street past Acredale Road, so I'm the
second street in. Acredale Road, I guess.
Al Henley: Okay, so it is beyond Acredale Road?
Pat Ferguson: Yes. I live on Olive.
Al Henley: Okay. Thank you.
Janice Anderson: Are there any other questions?
Pat Ferguson: You will see pictures in there of his other practices. I wanted you to see that so
you will see that they are not neighborhoods like this one. That is not a true statement.
Janice Anderson: Okay. Thank you very much Ms. Ferguson.
Pat Ferguson: Will I be able to get all of that back?
Janice Anderson: Yes ma'am. It will end up where Mr. Ripley is.
Pat Ferguson: Okay. Thank you.
Donald Horsley: Our next speaker in opposition is Wanda Whitlock.
Wanda Whitaker: Whitaker.
Donald Horsley: Whitaker?
Wanda Whitaker: Hello everyone.
Janice Anderson: We1come.
Wanda Whitaker: I'm very nervous speaker. I'll do my best.
Janice Anderson: Just start with your name please.
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Wanda Whitaker: My name is Wanda Marie Whitaker. I live at 1221 Acredale Road.
Janice Anderson: There is a little pointer. There is a little black pointer to the left.
Wanda Whitaker: Don't show me all of this high tech. What am I doing? Okay, here I go. I
live right there (pointing to PowerPoint).
Janice Anderson: Okay. Thank you.
Wanda Whitaker: I would like to thank you all Commission. I would like to thank Faith
Christie. She has been wonderful. She has been fair. She has given me as much information as
possible. Thank you. I don't want to step on these. She has been very fair and very patient with
all of my questions throughout these proceedings. I would like to point out a few things. The
gentleman who spoke from 5309, I think he moved into the neighborhood in 2004. He rents out
his property. He is not a permanent resident. Just last month, he did have a REMAX rental sign
in front of his yard. One ofthe renters went to the same bus stop as my daughter. So this is not a
permanent resident. Mr. Nutter has one person who is okay with and maybe this other lady
down the street who gets braces. Well, within two miles, and I'm all for competition and helping
the market, within two miles, there are four other orthodontic practices. So, this is not a practice
that is needed in this area or a practice that needs to be encroaching into this area. That lot there
next to 1300 Kempsville Road, 1300 Kempsville Road is an 0-2. There are different conditional
uses for an 0-1 versus an 0-2. They are trying to use the existing parking lot of an 0-2
condominium association. I'm sure there are legalities involved in that because they are
conditional proffers for an 0-1 Conditional Use Permit right?
Janice Anderson: I'm sorry.
Wanda Whitaker: Okay. 1300 Kempsville is an 0-2 condo association.
Janice Anderson: Correct.
Wanda Whitaker: Okay. The property 5315 Bonneydale Road they want to encroach and rezone
will be a Conditional 0-1 with proffers. Right, from what I understand?
Janice Anderson: Right.
Wanda Whitaker: If they want to use the existing parking lot to prevent any more traffic on
Bonneydale Road, obviously that is smart, but they are using it, they're coming in from an
existing zoned office to condo association.
Janice Anderson: There has to be an agreement with them. They would work that out.
Wanda Whitaker: Exactly. Okay, but that is between him and Mr. Townsend, but from what I
understand that is a seven unit, 1300 has seven units to it.
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Janice Anderson: Okay.
Wanda Whitaker: They are all sold. As far as the blighted property that he mentioned here, 5315
Bonneydale. Okay. Savage, Sabol and Visser purchased that, I think in September 2007 for a
$195,500. Well, they have had ample time to fix that blighted property. There was a house
across the street 1i-om me. Well you can't see it. I live at 1221 Acredale Road, but across the
street from me, a man had purchased the home for whatever reason, let's just say he skipped
town. Everybody wanted that property, for whatever reason it was tied up in some kind of
legalities. It sat there with the back, while he started remodeling, just rotting. The whole back
because the bank wouldn't put it up on the market. It stayed like this, and you can ask Buddy,
who is the actual inspector for that area. It sat rotting for maybe at least 1 Yz years literally. Well,
we just recently, about 7 months ago, about 7 months ago, purchase the home. They are a very
nice couple. It's :lmazing what this house looks like now. They fixed the back up. Flowers are
all nice and neat in the front. So, you can use this blighted. Anything can be fixed up. You
know, once again, she showed you they have five locations. This, I think that fact that you know
that everybody does community service. So, that is wonderful. I commend them for that. I do
community service as well. I've lived in this neighborhood since 1993. My children have grown
up in this neighbmhood. This is a neighborhood unlike any other neighborhood. People want to
preserve Acredalt:. We have nice mature trees. People love to walk through our neighborhoods.
We have Oaks, water oaks, Magnolias. We have birds. We have hawks. We have all kinds of
unique things. We supply the oxygen for half of Kempsville. There are directly across the street
there are ample leasing options available for this orthodontic group. There is no disputing that. I
clipped that in the paper somewhere. And, then I drove around the neighborhood. I've got
several here within the requirements. There are 292 parcels in Acredale. What we bring in here,
market wise is like $74.5 million dollars. Okay. That is what we bring in. If you allow this
encroachment when there are so many others spaces. Right now, places across the street going
out of business. Your Taps, Funky Beat. What are some other ones that are recognizable?
There are so many small businesses right now that their doors are shutting.
Janice Anderson: So, you would rather see this relocated somewhere else?
Wanda Whitaker: I think anybody would, even not from a business and personal. It is just
common sense. There is no reason for them other than. The only people that benefit from this
would be them from a business point of view, a profitable point of view. There is no absolutely
no reason for someone when there is ample leasing space available, like I said directly across the
street. I drove through the neighborhood.
Janice Anderson: Ms. Whitaker, you've gone over your time, okay, but let me see if there is
anybody on the Commission who has any questions.
Wanda Whitaker: Here is the ample leasing.
Janice Anderson: You can hand that to Mr. Redmond.
Wanda Whitaker: My daughter started high school yesterday.
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David Redmond: It was not easy was it? It wasn't an easy day for me either.
Janice Anderson: We'll give it back to you.
Wanda Whitaker: I drove by and found all of these places.
Janice Anderson: Are there any questions of Ms. Whitaker?
Wanda Whitaker: Is there anything else like the market values or anything? And traffic
calming. Do I need to give this to him as well?
Janice Anderson: Yes.
Wanda Whitaker: Traffic calming. I'll give you everything.
Janice Anderson: Are you finished handling them out?
David Redmond: Thank you very much.
Janice Anderson: Okay. Thank you.
Wanda Whitaker: Thank you very much.
Janice Anderson: Okay. Mr. Nutter will find it back to you. Thank you Ms. Whitaker.
Wanda Whitaker: Thank you very much.
Donald Horsley: Our next speaker in opposition is Mark Patton. Mr. Redmond, when you get
this information, will you let us know.
Janice Anderson: Welcome sir.
Mark Patton: I'm not very good in crowds and what have you.
Janice Anderson: State your name please.
Mark Patton: Mark Patton. I live on the corner of Bonneydale and Acredale. I live on the first
house on the right hand side of the intersection as soon as you come in.
Janice Anderson: Okay.
Mark Patton: It is pretty vital. There are a lot of issues on that intersection because of when you
turn in. If you could, show a bigger map of the business right now? When you first come in
there is normally not enough area from the corner turning in, causes accidents right there. I
would rather have him put one back farther offthe intersection. Right now, in this intersection
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where the road thins out, it is very thin. If you put a trash can out there, people sometimes have
to stop. It is that thin up in the road. They widened it where the business is right now. Cars park
on both sides. It is a bad situation those two areas. I was instructed also that when you put this
much parking YOll should have an overflow, like a little pond. I don't see any of that in the
planning. There are a lot if issues just in the basic planning itself. I'm not very good. I'm going
to read some not($ real quick. I'm opposed to it. I have two boys. Either one cannot ride in the
street. My oldest one is having problems. First we have too much traffic going in from Ferrell
Parkway. That i~ upsetting because it comes screaming through. Second, there are cars that
speed well above 50 to 60 mph on weekends. There are skid marks all up and down the street. I
live on the street so I see it. We keep asking for radar for cops, police, and they keep sending us
a machine that dCles the radar thing. I think I've seen one, one time in the whole time I've lived
there. I've lived there for 10 years, 9Y2. And this gentleman back here has only lived there 4 to 5
years. I'm giving him credit at 5, maybe. He doesn't live there that much. The person that I
bought the house from has been there 10 years and more than 30 years. They live there for a
long time. I love the house. I love the neighborhood. There have been six accidents in two to
three years. One van rolled doing 60 mph hit a Maple tree, three foot around, stopped the tree
from going through the neighbor's house. We've tried over five times, like I said to get radar
and every time they keep setting up a machine. When people come into Bonneydale the turn and
immediately go too far. You're doing 45 on Kempsville and it is ripping down from Indian
River. As soon aB you try to turn in, it is done. You've missed your turn into the business. So,
you got to up and turn around at the intersection. The intersection is not even big enough to have
cars turn around. I have a big truck, but even the little cars have problems. They go on the
grass. The inlet parking, like I said is just too quick, too close to the corner. It is not made for a
business. There i:; so much commercial business going on, and they are trying to build into our
neighborhood. I bought in that neighborhood because it doesn't have gutters. It is all grass next
to curbs. I mean no curbs. It is curbs up to a certain point where this gentleman just bought his
house, and then it stops and goes all grass from there on out. It's all grass. I walk my kids to the
bus in the mornin,g. I am always constantly in the sake of their life. It is 25 mph. Nobody does
25 mph. I am just scared to death that my two sons are going to get ht. It is really bad. The
parking on both sides on the entrance is really bad, too. If you people on both sides, which is
typically what you have when you come in. I hope they do well, but it is just that it is a bad area
to have a business. They have parking on both sides and normally people have to slow down to
go by each other when the parking is on both sides. So, it is a bad situation. It is a bad thing to
have. It is just an old neighborhood. Some of the signatures, and I went out and got some of
them. I think I had two "nays" and they were just afraid to talk to me when I walked in the door.
I'm a bigger guy ~md they might have been scared. Everyone says give me the pen. I don't want
more traffic. Twc of the neighbors have had accidents in the intersection pulling out. But my
son cannot ride a hike in the street. I have to go to Indian Lakes to ride a bike in the public area.
Acredale doesn't have it. It just tears me up. My oldest son has a problem riding a bike.
Janice Anderson: Thank you Mr. Patton. Are there any questions of Mr. Patton?
Mark Patton: I've been only there for ten years. I see there have been people there for 20, 30 or
40 years. Most people have 50 years, some of the older people.
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Janice Anderson: Thank you very much.
Donald Horsley: Our next speaker is DeAnna Fain.
Janice Anderson: Welcome.
DeAnna Faim: I'm DeAnna Faim, and I am a resident of Acredale, and I live at 1217 Acredale
Road. I just want to echo just what you already heard. I am in opposition of this rezoning. I just
don't want to see the neighborhood encroached upon. And there is no reason for it to be, again
with all the available property to this group. That is it.
Janice Anderson: Thank you. Are there any questions of Ms. Faim? Thank you ma'am.
Donald Horsley: There are no other speakers.
Janice Anderson: Mr. Nutter?
RJ. Nutter: Thank you very much. First let me thank everyone for coming today. It showed a
lot of support for the neighborhood and a lot of concern. I would say that most of the concerns I
heard really are valid things that we have not been a part of. In fact, we might be part of the
answer to help. Most of the problems that we heard about are the traffic coming in and out of the
area from people who have lived there for an extended period of time, so they know this, and that
traffic problem isn't caused by our client. It is caused by this use. If anything, this use may be
presenting, as it sits today, this property ifit is rezoned to this capacity and part of the program,
can help provide an access answer. It may solve some of these problems. Without it, you're
going to have a continuation of the problem that these people are experiencing today. But the
most important thing is, I will tell you, is that I don't want to get into neighbor versus neighbor,
because I do not know any of them that well. Except that I can say that the gentleman next door
with seven children, I don't think the fact that he has lived therefore for 4 or 5 years is relevant to
the conversation. I do think that the fact that he lives there, he wants an improvement. He sees
this can playa role in making his property more valuable, more stable without intruding into that
neighborhood any further in the significant testimony to in favor of this exact location. But most
importantly I have to tell you, that our group, the group of doctors we represent, have been there
as long as these people. They have seen the change. They see the issues. They have to deal with
them just like they do. They are coming forth with a proposal that quite frankly is design
compatible with everyone around them, have the support of the two adjacent neighbors around
them. I will also tell you if you look at the zoning map here, this problem is going to exist
because of its proximity of Indian River Road, the condoning along this area, so what happens
here can be a very important piece of this puzzle. The reason why I think this application
provides the answer rather than the problem is because number one, we can help solve this
access way. If Mr. Patton wants to talk to us about moving the access ways to help this situation,
but we got to sit down with the other people like we did before, we can do that. The other thing
quite frankly, we have the design with the way the back of building faces the residents is
designed to be a barrier against any further intrusion. Right now there is no natural barrier to
prevent the intrusion and expansion of this area. This provides it. It ends that corner up. It is
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inside the capacity to be one area that is right next door so this property can playa role in solving
that problem. So, again we come to you asking for your approval, from both adjacent property
owners, other re~;idents in the area, from a business that has been there for over 20 years. So, we
appreciate your time and effort today. I'll be happy to answer any questions you may have, but
we're very, very happy to playa role in expansion of this residential use of the property as well.
Janice Anderson: Thank you Mr. Nutter.
RJ. Nutter: Thank you. Yes ma'am.
Janice Anderson Are there any questions of Mr. Nutter?
Al Henley: Mr. :'lJutter, you have indicated that ifit is approved you're installing an additional
12 or 13 more parking spaces, I believe over what is above and beyond is recommended or
required. And I know that the parking lot adjoining will the existing business patrons be able to
park in this new :~acility?
RJ. Nutter: Yes sir they will.
Al Henley: My next question is, and I assume that was a yes, but will there be a sign indicating
that those busine~;ses have overflow parking to this new facility?
RJ. Nutter: I don't know of details to that. We're happy to make sure that is the case.
Al Henley: Therl~ are so many times that I question that because there are so many times patrons
may be afraid to go into another parcel of parking in fear of being towed, so I think if there is a
sign there saying overflow parking or additional parking with an arrow, I think that would
improve the situation.
R.J. Nutter: We are happy to provide that because right now, unfortunately, as you know, the
two driveways, tte two parking lots there today are not connected. This will be the first
connection between them. So, it is actually a great idea Mr. Henley. I don't think it was part of
the discussion, btt we will be happy to make sure that happens.
Al Henley: Okay. Thank you.
Janice Anderson: Go ahead Ron.
Ronald Ripley: Mr. Nutter looking at the photographs, as Mr. Patton said, the width of the road
right in the vicinity of the existing office building, it looks like the curbing stops at the end of the
existing office bUllding right in front ofthe subject site, and it looks like the design that we're
looking at in our packet, it starts to taper out to a reasonable distance, I guess with the sidewalk
and the street. I heard discussion about maybe wanting to consider moving the entrance further
that way. I don't know if that is a solution but would, but maybe, Ric Lohman will need address
this, but would it be appropriate to maybe extend the taper so that tape starts at the end of the site
1,1 I
Item #12
New First Colonial Road Associates
Page 14
where it abuts the residential site that is there. Therefore, you would have a wide pavement
section for a longer distance which might help alleviate the congestion that could occur in that
area. Is that something you would consider doing?
RJ. Nutter: Yes sir absolutely. For the gentleman that spoke, we actually connected the two
areas using the existing office because we didn't want to make any further intrusion. We would
be happy and indicated to the woman earlier who spoke, I'll be happy to talk to the owners next
door about maybe moving it out if that would help solve the problem.
Ronald Ripley: I don't know, but maybe Mr. Lohman can address it. It seemed like that might
help.
RJ. Nutter: Sure. We would be happy to both taper whatsoever, and we're happy to talk if there
is a consensus amongst the residents to help eliminate the other access. We will be happy to go
talk to the owners of the other space.
Ronald Ripley: Thank you.
RJ. Nutter: Yes sir.
Janice Anderson: Are there any other questions of Mr. Nutter? Okay. Thank you.
RJ. Nutter: Thank you very much.
Janice Anderson: Go ahead and open it up. Do you have any new information sir.
Mark Patton: New information. Yes ma'am. Real quick. The traffic going through, and the one
fellow brought a very, very good point, there is a traffic problem. People cut down from way
over here, Ferrell Parkway, drive into the westerly road, come up Acredale and cut over here.
And people will try to go from Ferrell Parkway and do a short cut right there. This has nothing
to do with the building of this project. The most it seems like there are about six cars that get
backed up in this area right here. The reason why they park there is simply because they have no
parking in here, and so the issue, and we can't change those cars driving through Acredale from
Ferrell Parkway. There is nothing we can do to change that. That is going to happen anyways.
But this solves a real problem. I am the next door neighbor. I do currently live there. But
solving that problem people will come in here, and say we can't pull into that parking lot, so we
got to pull around, turn around and park right here and pull into my driveway so and so forth. So
that solves a real live problem. The other problem is people driving 45, 50 or 60 mph. That is a
problem, but that is not caused by this business. And the problem that we're going to solve by
this business is those six cars that are parked there pulling into the driveway and then going
around.
Janice Anderson: Thank you sir. Mr. Lohman, can I have you come and answer the question.
The neighbors have brought up the issue that there is a traffic problem along this road, and I do
believe it is a cut through from some major arteries. They made some concerns that if you add
Item #12
New First Colonial Road Associates
Page 15
another commercial office site, that is just going to be bring more traffic cutting through there to
come to the expanded business. Can you go over the traffic issues on that road for us?
Ric Lohman: W,ell, for the record, Ric Lohman, Public Works Traffic Engineering. I'm not that
familiar with the issues. I believe we were looking the pictures earlier, and I had mentioned that
it was a traffic calming street, Bonneydale is, which generally means that there is a problem that
has been acknowledged by the City, and through enforcement it hasn't cleared up. So, they put
up the increased :;peeding fines on that street. So, I think I saw that in one of those pictures
earlier, which in generally mean that you probably have more cars, and they are probably not
neighborhood cars that are using that road. But besides that, I don't know about the specific
problems. Would that business increase the cut through traffic? You really don't know without
doing a study. These are people that are cutting through from Ferrell Parkway. If there is cut
through traffic now, it is going to be there whether this business is here or not. So, I don't think
it is really relevant with the addition of that commercial there or the office space there. There
were a couple of questions, and I really haven't been out to see this site. But the road does kind
of narrow there when you get to the first residence. If these guys decided to pull the pavement
back, and kind of continue that section there, at least through, if this was rezoned, that would
help a little bit. As far as the entrances go, we love to see that first entrance to the right off
(pointing to Powt:rPoint), we would love to see that move back to possibly there, if nothing else
to keep them from turning in right there at the corner. But, this project was never about this. It
was always about this, but if we could work this out at site plan, if it gets to that point, we can
certainly work, if these guys are amenable to it, to make this whole thing work better if there are
issues with this, which I believe there are because there is a lot of traffic coming off of
Kempsville. I can imagine them screaming because Kempsville is very, very busy, especially
coming around the corner here.
Janice Anderson: Okay.
Ric Lohman: We can work that out at site plan.
Janice Anderson: Go ahead Ron.
Ronald Ripley: Mr. Lohman, so widening that pavement section might be helpful you think?
Bringing it tapered back further back?
Ric Lohman: For that little stretch? Yes, it is not going to help them back further than that one
parcel. It is still a very narrow road back there. I don't know what type of parking this business
addition needs or how much extra parking they do need, but if it did drive parking back into the
neighborhood, it would still be a very narrow street.
Ronald Ripley: Ld me address something that the neighborhood raised and that is the traffic
going through the neighborhood. Can you describe what the process is for the neighborhood to
get into the traffic calming program that would help maybe solve some of those problems or is
this neighborhood already into that?
'I I
Item #12
New First Colonial Road Associates
Page 16
Ric Lohman: I believe they are already into it. Can see if you can find that one picture? The
program if the sign is correct and I think she is saying it is correct then they are already into
phase In of the program. Phase I is that we come out to check and see if there is a problem in the
neighborhood through speed measurement devices and volume measurement of traffic. If you
pass Phase I, meaning that you got 10 mph or greater above the speed limit, 85th percentile
speed. I'm sorry. There is the picture.
Ronald Ripley: It is already there.
Ric Lohman: They are already in Phase III of the program. Phase n is we come out and do
education and enforcement, and through education and enforcement of the speed limit we still
see the 85th percentile speed hasn't dropped below the threshold then we go Phase III, which
again is through the petition for the neighborhood and approved by City Council. What happens
at that phase is that we put up these special signs. What it means that anybody get caught
speeding in there, you're facing a ticket of$350.00 or more just because of the added cost.
Ronald Ripley: Okay.
Ric Lohman: Yes. They are in the ordinance. Bonneydale Road is included in the ordinance so
they are already at Phase III.
Janice Anderson: Go ahead Henry.
Henry Livas: Ric, on your average trips a day, I see you got an increase of about 31, which is
not a lot, would you say? And also, your knowledge of dental offices the way they work, people
come in for appointments. They may sit around before they have their appointment. They get
their dental work done and then they are gone. Unfortunately, we have to use the word "office"
in this zoning, but in a regular office building people dump in there 8 :00 in the morning and
work eight hours and everybody comes out at 5:00. So those are more of a traffic problem then a
dental office, I would think.
Ric Lohman: They could be. You're probably going to have actually about the same number of
trips, but they may be spread out more during the day because again, like you said, everybody is
not coming to work at 8:00 and leaving a 5:00. It's spread out. You will have people coming
and going during the day.
Henry Livas: So, this should not be much of a traffic burden. A dental office compared to other
businesses.
Ric Lohman; Compared to other businesses? Probably not, but again just acknowledging it is
more than a single-family house.
Henry Livas: Okay.
Janice Anderson: David?
Item #12
New First Colonial Road Associates
Page 17
David Redmond: A quick question about that. If you say it increases trip, not you, but say the
estimate is 41 trips. Does 41 trips mean 20.5 cars coming twice a day? I don't know really what
that means. If I ~;o to that dental office?
Ric Lohman: That's two.
David Redmond: That's two trips.
Ric Lohman: Ye:; sir.
David Redmond: You're coming and you're going.
Ric Lohman: Y e~; sir.
David Redmond: Okay. So, you're really talking about 20 cars coming individually each time if
it is two trips essentially?
Ric Lohman: Y e~:.
David Redmond: Okay.
Ric Lohman: That's the bases of the trip generation. Again, we're using the national standard
for trip generation.
David Redmond: I'm not questioning it. I just didn't know what the answer was. I appreciate it.
Ric Lohman: And the same thing with a single-family house. It is 10 trips. It's coming and
going. So that means you leave your house five times.
David Redmond: Okay. Thank you.
Janice Anderson: Are there any other questions for Ric? Thanks Ric.
Ric Lohman: Okay. Thanks.
Janice Anderson: Ms. Whitaker, we're going to do discussion now ma'am. Okay. Thank you.
Wanda Whitaker: [ have new information.
Janice Anderson: We have to go forward. We gave you extra time when you were up here the
first time. I'll open it up for discussion. Jay?
Jay Bernas: For me, this was kind of a gray application since it could pretty much go either way
on it. But, there are three things that really stuck out there for me where I can't support this
application. One of the things is that I live near this area. This is right next to Kempsriver. And
1'1 I
Item #12
New First Colonial Road Associates
Page 18
ifthe applicant came in here and said, we need more office space because you know there isn't
any in Kempsriver, and we need to increase the office space, so now we need to start
encroaching into the residential neighborhood, then I would say from a land use perspective
maybe we didn't do the right thing. Maybe there needs to be more business because there is
more of a community need that would drive putting in more office space. And I just don't think
that is true. The second thing is that the neighborhood doesn't want it. I think the fact that they
came in here. They spent the time to get the petition signed, really, is striking for me, and I think
they don't want to see this commercial use encroaching into a stable residential neighborhood.
And lastly for me, the most important thing is I think we need to hold the line. I think the line
between commercial and residential, especially in stable residential neighborhoods, need to be
firm. I think that the best quote in the staff report is "although I think it is a good design. I think
the site plan they have laid out is the best that they could do, that good design is not a substitute
for good land use planning". And for me that was the most striking thing in the report, and for
those reasons, I can't support the application.
Janice Anderson: Thank you Jay. David?
David Redmond: I support the application. In my view, at one side it's got a tune to the south.
It is commercial all the way to Indian River Road. It's bounded, seems to me, by the greatest
amount by commercial space. Be it all that it may, that is not the largest reason. In my view the
greatest problem with this site as it exists today is the cars that I see in those photographs on
Bonneydale Road. I bet it does make a safety issue. And it is unsightly. And it is, I think it is,
very injurious to the neighborhood. I don't blame you for being upset if your kid ride bikes
down that road. My problem with that is that it looks to me like the very ample parking that is
provided is going to do more to mitigate, perhaps even solve, that than it is to exacerbate it. I
think in a number of respects it is a model application. This is never easy, one of these
applications. It is never easy. In a case where it might work this is well sighted. The building is
well designed. The access is well designed. It looks to me that it is going to solve the problem
as opposed to creating one, or exasperating one, or adding to it in any way. I do think that the
applicant has taken great pains to come up with a design and implementation that maximizes its
benefit. If it didn't do that, I wouldn't support it. But it does, and I think in some case there
should be a goal standard. And, I think that this probably accomplishes as much as the positive
that we can expect from an application of this nature. Whether there is vacant real estate
anywhere within a mile or two, or ten miles, I think is completely immaterial. It's a question on
whether or not the application itself is meritorious, and in my view it is. I would also say that
speed on Acredale Road, is also in my view, irrelevant to this application. People speed on every
street. It drives me crazy, too, but I don't think it has anything to do with an orthodontist office.
So, I'm going to support the application. I have looked. I have searched. I always try and find
what is wrong with something, and when I find what's wrong with something then it makes it an
easy answer. I can't really find what's wrong with this application with all of the things being
equal. It looks to me that it is a pretty sound piece of work. I bet it would add to the
neighborhood. Thank you.
Janice Anderson: Thank you David. Ron.
Item #12
New First Colonial Road Associates
Page 19
Ronald Ripley: I'm going to support it as well. I think the pattern of the zoning appears to me to
be logical. I think that does make sense on the surface. I hear what the neighbors were saying. I
think my concem about the traffic, the through traffic is more of a police issue I think than a land
use issue at this point. I think the parking on the street. This will solve it. I think that safety is a
very important factor. I think this will help with the safety.
Janice Anderson: Henry?
Henry Livas: I'm going to support the request, and I can see why the neighbors are upset. What
I hear coming from them is they are upset because of the traffic, those that want to cut over to
other major thoroughfares. I don't think it has a whole lot of bearing on this particular project.
Like Dave said, this project is probably going to help it some by giving it more parking spaces.
So, it is a tough decision. I've gone back and forth on, it but ultimately I've decided to support it.
Janice Anderson: Gene?
Eugene Crabtree: I'm like Mr. Ripley and like Mr. Redmond, I'm going to support it. I think
the additional parking on site will eliminate the parking on the street. I'm sure that I agree with
Mr. Ripley that i~: probably more of a police matter with the traffic through there. And the traffic
seems to be the b 19 thing. As far as the encroachment on the residential neighborhood, if you
take a look at the map that we're looking at the B-1 piece of property which is just adjacent to
that to the B-2 property sits next to that, and the B-2 property that sits on now close to Indian
River Road, if you draw a line straight through across those properties you will find that this
property is not going any deeper into the neighborhood than it is physically as far as the physical
land is concerned, so I don't think it is encroaching anymore in the neighborhood than what
those other B-1 &; B-2 properties are already encroached. Therefore, I'm going to support it. I
think it is an improvement. It's getting rid of an uninhabitable structure and making it more
habitable with more parking, more landscaping, etc. So, I'm going to support it.
Janice Anderson: I'll just make a comment. I'm more in favor of the position that Jay, is against
the application. I think the proposal, and I don't have anything with the design, but I do have a
problem with the issues that the neighborhood had brought up and what the staff report has
brought up. They are already under stage three traffic issue and you're adding another
commercial site. This is an expanding business. And it is going to add more traffic coming
through there to go there. It is an encroachment on the neighborhood. Our policy is not to go
any further, and I don't see a reason really to stray from that, and this business has done well,
and it is expanding. It has outgrown this site. I think it probably should really relocate
someplace else in the neighborhood on an existing commercial site. I think Jay's comments
were on track and I'm in full agreement with those, so I would be in opposition. Are there any
other comments? Go ahead.
Joe Strange: I'm going to have to oppose it also. From a land use standpoint, I can understand
why the people would like to expand over there. I don't see anything wrong with their design or
the building itself They are probably doing about the best they can with it. From a land use
standpoint, as the neighbors have pointed out, there are just all kinds of vacancies in that area.
II I
Item #12
New First Colonial Road Associates
Page 20
They are all over the place over there. Kempsriver, you go over there and half of those shops are
empty. If it wasn't for that, then I would probably support it. But I don't think that as a land use
planner that we are in the business of helping somebody to build their business or expand their
business. If we were then that would be a good reason to do it because they are already there,
but we are not in that business. I see no reason to take another piece of property that is zoned
residential and turn it into commercial when there is no need for it there. So, for that reason, I'll
be opposing it.
Janice Anderson: David.
David Redmond: I move approval of the application.
Henry Livas: Second.
Janice Anderson: A motion to approve by Dave Redmond and a second by Henry Livas.
Kathy Katsias: I will be abstaining. My company does business with the adjacent property
owner.
Janice Anderson: Thank you.
AYE 6
NAY 4
ABSl
ABSENT
ANDERSON
BERNAS
CRABTREE
HENLEY
HORSLEY
KA TSIAS
LIVAS
REDMOND
RIPLEY
RUSSO
STRANGE
NAY
NAY
AYE
AYE
AYE
ABS
AYE
AYE
AYE
NAY
NAY
Ed Weeden: By a vote of6-4, with the abstention so noted, the Board has approved the
application of New First Colonial Road Associates.
Janice Anderson: Thank you all for coming down.
RECEIVED
+-t""' 'L-
TOWNSEND BROWN, JR., D.D.S., P.C.
Diplomate - American I~oard of Pediatric Dentistry
Dentistry for Children, Teenagers and the Handicapped
www.vt.kidsdds.com
SEP 0 4 Z009
PLANNING ~~~
~ .~
~ ~rc sptP
September 2, 2009
City of Virginia Beach
Planning Depar'tment
2405 Courthouse Drive, Room 115
Virginia Beach, V A 23456
RE: New First Colonial Associates
Dear Sir:
I am writing in support for the zoning change on 5315 Bonneydale Road,
Virginia Beach, VA 23464. The present home is vacant and is in poor repair. The
house should be condemned for it does not have a heating system! Our office
building at 1300 Kempsville Road has a parking problem, and this new office
building with additional parking would be helpful. The new office building would
also greatly improve the property for our neighborhood.
If you l1ave any questions, please do not hesitate to call.
Sincerely,
J--- J ~ /1 IfJr'S
Townsend Brown,'J;~.s.
1300 KEMPSVILLE ROAI) . SUITE 5 . VIRGINIA BEACH' VIRGINIA 23464 . (757) 467-7797 . FAX (757) 474-1493
-L \ V "'1', 'L-.
,I II
R.J. NUTTER II
757.687.7502Ielephone
757,687.1514 faC$imile
r). rnlt\ef@lrOUlmennnders.eom
TROUTMAN
SANDERS
TROUTMAN SANDERS llP
Atlorn8)'111 law
222 Cllnlral Park AlillIlUll. SuIte 2000
Virginia Beach. Virginia 23462
757.687.1500 ttlephOOll
Iroulmanllnd8f1;.com
August 31, 2009
VIA E-MAIL fchristi\alvb20v.com
Faith Christie, CZA, CBO
Planner, City of Virginia Beach
2405 Courthouse Drive, Room 115
Virginia Beach, Virginia 23456
Re: Conditional Rezoning Application of New First Colonial Road Associates,
L.L.C.
Dear Fai:
I understand you have received correspondence from Mrs. Whittaker concerning
opposition to my client's application. However, please know that we have tried to reach out on
numerous occasions over a period of several months to meet with Mrs. Whittaker, but have had
no success. We have, however, had an opportunity to meet with several neighbors in the
immediate area including the property owner and resident of the home immediately contiguous
to this application. As a result of those meetings, we have received the enclosed letters in
support of our application.
If you should have any questions, I would
Enclosures
ATLANTA CHICAGO HONG KONG LONDON NEW YORK NEWARK NORfOLK ORANGE COUNTY
RALEIGH RICHMOIlD SAN DIEGO SHANGHAI TYSONS CORNE~ VIRGINIA. BEACH WASHINGTON, DC
May 18,2009
To Whom It M~lY Concern.
I live at 5153 Bonneydale Road and have been asked to review architectural plans for
rezoning for a business at 5366 Bonneydale Road in the Acredate area.
I have seen thEr plans proposed by Savage Sabol & Visser Limited. These plans look
esthetically ple.asing and keeping in with the neighborhood appearance. Currently there
are times when the street Is fitJed with parking cars and narrow to get by. The plans
show respectful parking to alleviate the problems in the street.
If you need an)' further remarks on the rezoning of this area, please feel free to give me
a call.
Thank you,
.1 ~ . ~
'l~
Virginia Reynol'is
5153 Bonneydslle Rd
Virginia Beach, VA 23464
(757) 718.9612 (cet!)
'1 I
9-19-09
To whom it may concern:
My name is Matt Nettesheim and I am the owner of the property at 5309 Bonneydale Road
Virginia Beach. VA 23464. For quite some time there has been cars parking on the street from the
growing businesses located two doors down from my property. I would love to Sf!e them have the
opportunity to take the property next dcor to me which is run down in disrepair and turn it into a
beautiful new business building with lots of parking. I am all in favor of this and would hope tney start
work tomorrow. If you have any further questions feel free to call me at anytime. 757-286-5628
Thanks.
~
Matt Nettesheim
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Importance:
Faith Christie
Monday, August 31, 2009 3:01 PM
'apache975'
FW: New First Colonial Road Associates, L.L.C.
[U ntitled]. pdf
High
From:
Sent:
To:
Subject:
Attachments:
While I was preparing the other e-mail to you Mr. Nutter sent this to me. Attached are three
letters of support for the request. One is unreadable and as soon as I receive the hard copy
I will let you know.
Faith Christie~ CZA, CBO
Planner, City of Virginia Beach
2405 Courthouse Drive, Room 115
Virginia Beach, VA 23456
757-385-6379
-----Original Message-----
From: Coburn, Mary Jane [mailto:Mary.Coburn@troutmansanders.com] On Behalf Of Nutter, R. J.
Sent: Monday, August 31~ 2009 1:52 PM
To: Faith Christie
Subject: New First Colonial Road Associates, L.L.C.
I have also placed a copy in the mail as the one may not be readable by PDF.
Many thanks
R. J. Nutter, II
Troutman Sanders LLP
222 Central Park Avenue~ Suite 200e
Virginia Beach, VA 23462
Telephone: 757/687-7502
Facsimile: 757/687-1514
e-mail: ri.nutter~troutmansanders.com
IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we
inform you that any tax advice that may be contained in this communication (including any
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not the intended recipient~ you should immediately stop reading this message and delete it
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communication (or its attachments) is strictly prohibited.
1
Faith Christie
Subject:
Faith Christie
Tuesday, September 01.20099:08 AM
'apache975'
'rj.nutter@troutmansanders.com'; Jack Whitney; Stephen J. White; Henry Livas; Harry E.
Oiezel
RE: Rezoning in Acredale - please send this to all who received previous e-mail
From:
Sent:
To:
Cc:
Good Morning Ms. Whitaker,
No problem - probably a mix-up in communication. Have a great day.
Faith Christie, CZA, CBO
Planner, City of vi~ginia Beach
24e5 Courthouse Dri'le, Room 115
Virginia Beach, VA 23456
757-385-6379
~ - - - -Original Message- -- --
From: apache975 [ma:.l to: apache975@cox. net]
Sent: Monday, August 31, 2889 7:89 PM
To: Faith Christie
Subject: RE: Rezoning in Acredale - please send this to all who received previous e-mail
Hello Mrs. Christie,
Mrs. Christie, Please send this e-mail to all those who you sent it to , so they don't think
I'm some hostile nut ... please :)
Mr. Jack Whitney, Mr. Stephen White, Mr. Henry Livas, Mr. Harry Diezel and Mr.Nutter.
Per our Phone conversation on Monday August 31,2089 between 4:88 -5:88 PM. Regarding the
message that you received on you machine on Friday (which resulted in this letter).
I was" bewildered" (using your word:) , when I read this e-mail. I honestly thought someone
called you and used my name (I'm serious). Because as you stated, we talked on Friday and
everything was good (as all our conversations have been).
Mrs. Christie, I have the utmost respect for you. As a very busy person, you've always taken
the time to explain the re-zoning process to me and answer my question's (many questions).
You've definitely treated me fairly and with respect
I'd like to share this with you, because it's rather ironic and I got a good laugh out of it
(you have a good sense of humor - check this out).
My horoscope said : (t Everyone wants your attention, but make sure you spend quality time
with friends and lovl~d onesj reschedule everyone else. When discussing a sensitive topic,
think before you speak --- it's too late once the words have left your mouth (do you think it
could be referring tl) your Friday voice-mail message I left? That was too funny:)
Have a wonderful week Mrs. Christie and everyone else who receives this e-mail.
Wanda Marie Whi ttakei'
1221 Acredale Road
Virginia Beach, Va. D464
1
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Faith Christie
From:
Sent:
To:
Cc:
Subject:
Faith Christie
Monday, August 31, 20092:59 PM
'apache975'; 'rj. nutter@troutmansanders.com'
Jack Whitney; Stephen J. White; Henry Livas; Harry E. Diezel; Henry Livas
RE: Rezoning in Acredale
Importance:
High
Good Afternoon Ms. Whitaker,
I listened to your phone message this morning and, I must say I was a little bewildered since
we spoke on Friday afternoon, and I had sent the previous e-mail with my responses to your
questions. So I will try again to address your concerns -
1. The only new information submitted has been the new site development and building
elevations plans, of which you have a copy. You are more than welcome to come to the office
and receive a copy of everything in the file. It is public information and the public may
review the information during work hours.
2. The process is not "development friendly". I have analyzed the applicant's request with
regard to land use as well as your concerns of development encroachment into a stable
neighborhood. I treat everyone fairly. I have done no more for the applicant than I have done
for you.
3. I understand your reluctance to provide the petition against the request from the
neighborhood. You do not have to provide it before the scheduled Planning Commission meeting.
4. Please believe me when I say I completely understand this is neighborhood of working folks
trying to protect their neighborhood from further commercial encroachment. The Planning
Commission and the City Council take neighborhood opinions very seriously with regard to land
use issues.
I hope this addressed some of your concerns. Please feel free to contact me with any other
questions or concerns.
Faith Christie, CZA, CBO
Planner, City of Virginia Beach
2405 Courthouse Drive, Room 115
Virginia Beach, VA 23456
757-385-6379
-----Original Message-----
From: Faith Christie
Sent: Friday, August 28, 2009 11:29 AM
To: 'apache975'; rj.nutter@troutmansanders.com
Cc: Jack Whitney; Stephen J. White; Henry Livas Harry E. Diezel
Subject: RE: Rezoning in Acredale
Importance: High
Good Morning Wanda,
How are you today? How was the open house at school? I am going to try to answer some of your
questions with this e-mail, and I will make sure a copy of it is given to the Planning
Commission.
First the Fire Department reviews the conceptual proposal and also provides a thorough review
when the detailed site and building plans are submitted. Permits and Inspections reviews the
1
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building plans for compliance with the Uniform Statewide Building Code and addresses fire
issues with regard to the construction of the building.
Second a new application was not filed. That is not necessary as the request for the rezoning
remains the same. New proffers were not submitted and a copy of the proffers were given to
your representativE~ when they picked up the conceptual site and building plans.
Third the modified conceptual plans that were submitted (of which you have a copy) were dated
8/6 & 8/8 respecti~ely. Rather than a whole new package of conceptual plans and proffers we
allowed the applicant to re-date the plans to match the approved proffers. As I explained
before an applicant's proposal is a work in progress, hence the conceptual labeling of the
plans. Plans have been slip-sheeted and or changed right up to the Council meeting. So this
is not something unusual.
Fourth, we encourage the use of shared entrances in order to cut down on curb cuts along the
streets and prevent additional traffic conflicts. As long as both parties agree we like to
see shared entrances.
I hope I have answe~ed your questions. Please contact me if you have any other concerns. Have
a great weekend.
Faith Christie, CZA., CBO
Planner , City of Vil~ginia Beach
2405 Courthouse Drive, Room 115
Virginia Beach, VA D456
757-385-6379
-----Original Message-----
From: apache975 [mailto:apache975@cox.net]
Sent: Thursday, August 27, 2009 3:24 PM
To: Faith Christie; rj.nutter@troutmansanders.com
Subject: Rezoning in Acredale
Hello Mrs.Christie
August 27, 2009 (Thursday)
of 5
Page 1
Thirteen days before the September 09,2009, Wednesday at Noon ( the day after school starts)
Planning Commission Hearing for the request of the Rezoning from Residential - 15 to Office
- 1 . The property located at 5315 Bonneydale Road in the Acredale subdivision (right next
door to applicants Orthodontist office at 1300 Kempsville Road - one of their five
Orthodontist offices).
Hello Mrs. Christie CZA, CBO (Current Planner) Hello Mr. R.J. Nutter (Applicants Attorney)
Hello Mr. William Whitney (Director of Planning and Community Development) Hello Mr.Stephen
White, AICP,PhD (Planning Evaluation Coordinator) Hello Ms. Angela Stevens, (Planning
Technician) Hello Mr. Henry Livas (Kempsville district #2 -Planning Commission Member) Hello
Mr. Harry Diezel, Our Acredale- Kempsville- Councilman.
Hello to the Mayor and Vice Mayor, Mr. Sessoms and Mr. Louis, and all the other Council
Members who serve in other Districts.
I hope everyone is h3ving a good afternoon, and I wish you all a wonderful weekend.
Mr. Diezel ,
2
.1
As our Councilman and the City's Fire Chief for 23 years before retiring; You served on the
City's Executive Management Leadership Team as the Public Safety Liaison and the Safe
'Commu~ity Team; The City's Representative in the International Fire Chiefs Association;
Also a Founding Member of the International Fire Code Institute . On a National level, you
were the General Manager for the Federal Emergency Management Agency's Disaster Response Team
___ VA TF-2. A 180 Person Team, headquartered in Virginia Beach that has responded to
several events, including the Oklahoma Bombing.
Page 2 of 5
Mr. Diezel ,
I can think of no-one more qualified to direct my questions to in regards to the Fire
Regulations and Fire Codes involving the rezoning of 5315 Bonneydale Road in the very wooded
subdivision of Acredale. This Involves the "New Development Site Plans" that have been
submitted to the Planning Commission and City Council by "New First Colonial Road Associates,
L.L.C.". Mr. Diezel , as a retired Fire Chief with 23 years on the job, with all of your
qualifications and extensive knowledge dealing with fire, and fire codes (and the rapid
spread of a fire in a dry season). By looking at the City's e-maps for 5315 Bonneydale Road
and 1300 Kempsville Road . And the two large wooded lots that are adjacent to that property
and adjacent to other Acredale residential homes: On the side (Bonneydale Road) and many in
the back (Acredale Road). Do these new development site plans (not the previous site plans),
comply with any type of logical fire-codes pertaining to developing in an area that has not
been updated with adequate, twenty-first-century fire/emergency safety measures (this is a
very legitimate and serious concern, due to the age of Acredale and the development that was
done around this area many, many decades ago)? Would the Fire Trucks and Fire Fighters,
Ambulance Personnel and Police be able to safely get into this area and do their job before
residential homes were destroyed and people injured?
Mr. Diezel, we have many signatures on a petition opposing this rezoning / encroachment into
our unique - peaceful - stable ... Acredale subdivision. We would like to meet with you as
soon as possible to discuss this matter. We are a subdivision with 292 large-wooded-parcels ,
located in the heart of Kempsville. We have this wonderful piece of the Country sitting right
in the middle of the City. Our mature- trees supply half the oxygen in this area:)
We all love this neighborhood and feel very passionate about preserving it , not only for
our-self's, but for our children who will be taking over these homes, continuously making
improvements, while maintaining the ole fashion neighborly spirit ... that Acredale is know
for (the next middle-class Acredale generation) .
Page 3 of 5
Statistics for Acredale: Strong , Stable Average percent of assessment change of residential
neighborhoods by district FY 2009/2010 :
Neighborhood: Acredale
Total Parcels: 292
Parcels with Improvements: 292
Percent of Change: 1.537
Mean: $ 255,177.00
Median: $ 247,050.00
Acredales Maket Value Figures :
Acredales total land value: $ 47,498,600 .00 Acredales total building value: $ 27,052,700 .0e
Acredales total value of processed parcels: $ 74,551,300.00
FY 2010 ASSESSMENTS BY PROPERTY CLASSIFICATION:
3
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CLASSIFICATIONS
General Commercial
Hotel
Office
Industrial
Apartment
Residential
Townhouses
Condominiums
Agriculture
TOTAL
PARCELS
ASSESSMENT
PERCENT OF TOTAL
3,953
1,2(37
1,(363
1,178
989
1(32,231
19,630
20,416
648
$ 4,947,531,180.00
$ 1,048,157,2(30.00
$ 1,451,972,870.00
$ 815,725,8(3(3.(30
$ 2,743,677,1(3(3.(3(3
$34,777,497,971.00
$ 3,417,692,200.00
$ 5,826,133,747.00
$ 223,429,961.00
9.0 %
1.9%
2.6 %
1.5%
5.0 %
62.9 %
6.2 %
10.5 %
0.4 %
151,315
$55,251,817,756.00
100 %
Note: Parcels reflEct # of tax records as opposed to # of lots or buildings.
Page 4 of 5
Mrs. Christie, walking into the high school was like de'javu :) My son and school were like
oil and water (but he did graduate and join the Navy, he just came back from his second tour
in Iraq). God took mercy on me with my daughter regarding school (but man, did he whamming me
good with that teenage hormonal "Sybil" thing that girls go through :) Thank-you for your
e-mail in response to my call. As a resident of Acredale in the city of Virginia Beach -
where the application for rezoning from residential to office is taking place ; can I request
a copy of the new application and "Proffer's"? I'm assuming the "Proffer's" have changed as
they will not be using the original site plan that was prepared by "Porterfield Design
Center, entitled " Concept Plan, 5315 Bonneydale Road for Savage, Sabol & Visser, LTD", dated
October 13,2008". W,:! did pick-up the new site plans from your office a couple of days ago. We
noticed several prolJlems that we will have to seek profession/legal advise on (one regarding
Fire Regulations - Kempsville-Councilman Mr. Diezel should be able to address that issue).
Second thing that immediately popped-out I'm not a lawyer, but ... combining the parking
lot from an already ZONED, "29-0ffice-2" , Property class code: "412- office condominium"
with a total of 7 units : The legalities of such action is very questionable. This joining of
the existing parking lot at 1300 kempsville Road (page 12 of 12 on your Conditional Rezoning
Application)
THIS IS THE BREAK-DOWN ON EACH UNIT ASSOCIATED WITH 1300 KEMPSVILLE ROAD :
GPIN: SUITE # SQ. FT. TRANSFER DATE OWNERS OF' UNIT
1) 14654901412570 101 1153 sq. ft. 04-03-1985 GREGORY & CATHY SCHRUMPF
2) 14654901412580 102 634 sq.ft 06-12-1986 DOUGLAS & PAM RAWLINS
3) 14654901412590 X81 807 sq.ft 07-17-1986 GREGORY & CATHY SCHRUMPF
4) 14654901412600 X84 533 sq.ft. 07-17-1986 GREGORY & CATHY SCHRUMPF
5) 1465901412610 X8(3 814 sq. ft. 07-23-1986 TOWNSEND BROWN JR.
6) 14654901412620 105 925 sq.ft. 02-03-2003 TOWNSEND BROWN
7) 14654901412630 106 890 sq.ft. 07-06-1995 NEW FIRST COLONIAL ROAD
ASSOCIATES L.L.C. S/WAGE, SABOL, & VISSER
Page 5 of 5
4
.I
This is turning into a great media story. Three Orthodontist who have a total of five
practices . They purchase a residential home right next door to their existing practice
'(which is only open on Mon. & Wed.). They have enough money to pay an Attorney, who already
has the know-how and knowledge on how things work at the Virginia Beach City Planning
Commission and City Council Meetings. What a great advantage for them during these economical
hard-times ; purchase a house in a stable middle-class neighborhood for $195,5ee.e0 and
then rezone it into an Office and turn the neighborhood which already has a problem with
cut-through traffic 1 into a more dangerous place for our children (verse going directly
across the street where there are leasing options available with ample parking) . No matter
how you look at this picture (personal or business) . It can not be justified during these
Economical times 1 when half the people feel like their government (the people we elected to
represent us - starting at the local level and going all the way up) aren>t listening to a
word we're saying!
OUR HOMES ARE OUR SANCTUARIES; THE CITY OF VIRGINIA BEACH SHOULD DO EVERYTHING IN IT'S POWER
TO PROTECT US FROM BUSINESS'S ENCROACHING INTO OUR SMALL PIECE OF THE AMERICAN DREAM ... OUR
HOME ... WHERE WE RAISE OUR FAMILIES, WHERE WE GATHER FOR THANKSGIVING AND CHRISTMAS, AND
ALL THE OTHER CELEBRATIONS THAT MEAN SO MUCH TO FAMILIES. THE BIRTH OF OUR CHILDREN,
BIRTHDAYS, GRADUATIONS, FOURTH OF THE JULY PICNICS, EASTER DINNERS 1 ETC
Thank-You everyone and have a great weekend.
Aug.27, 2009 / Thursday
Mrs. Wanda Marie Whittaker (my view from my backyard is 5315 Bonneydale Road)
1221 Acredale Road
Virginia Beach, Va. 23464
apache975@cox.net
(757) 467-1245
5
Faith Christie
,-
From:
Sent:
To:
Cc:
Subject:
Attach ments:
Faith Christie
Thursday, August 20, 2009 8:40 AM
'apache975'
Heather Hartle
RE: Regarding:"New Site Plans" & "Elevation" . Photo's
New First Colonial Road Asociates LLC - CRZ-2009.doc
Good Morning Ms. Whitaker,
I've attached the Tr'affic Engineering report for the request. Heather Hartle in Traffic
Engineering is the E~ngineer reviewing the projects. She should be able to assist you with
your traffic concerr.
I've left a copy of the new site and elevation plans for you up front with our receptionist.
I will e-mail a copy to you once the plans have been scanned into the report. My evaluation
is not complete and will not be available to the applicant or the public until Friday,
September 4th. I will e-mail you a copy at that time.
The length of time it has taken to get the project ready for a public hearing is not unusual
particularly since the project has opposition.
I will not be in tomorrow - have to go back to the doc for my ear:-) Have a wonderful weekend
and let me know if there is anything else you need.
Faith Christie, CZA, CBO
Planner, City of Vi~~inia Beach
2405 Courthouse DriVi::!, Room 115
Virginia Beach, VA 23456
757-385-6379
-----Original Messagl:!-----
From: apache975 [mai1to:apache975@cox.net]
Sent: Thursday, AUgU~it 20, 2009 1: 16 AM
To: Faith Christie
Subject: Regarding: "New Site Plans" & "Elevation" . Photo's
Hello Mrs. Christie,
August 19 , 2009 (Wednesday)
You missed my Friday call (aw, that's sweet, I'll be sure to call you this Friday, if I'm
not on the third deck somewhere doing Crafts :) . Sorry about your swimmers ear, or, should
I feel sorry for the company your entertaining ( family:) ?
Thank-you for the up-date on the "New Site Plans" and the "Elevation" report (?).
Mrs. Christie, could you please send me a copy of the traffic analysis report (the increase
in trips/traffic thi5, type of Office will cause in Acredale / Bonneydale Road)? Obviously,
this is going to makE~ a major impact on the already over-burdened traffic we Acredale
residence face on a claily bases (especially Bonneydale Road - I'm currently trying to gather
all the accident repc1rts that have occurred on Bonneydale Road - LOTS!), but we need the
facts. So we can pre5ent the FACTS at the Planning Commission Hearing .50 far the only
people with all the facts are Mr. Nutter (their attorney - he seems like a really nice man)
1
'I
ana pernaps you. Inere's nOLnlng more numlllaLlng Lnen oelng aSKea quesLlon LnaL you can L
intelligently answer (well... actually there are, but I won't go there :)
Also, could you please mail me the "New Site Plans" and "Evaluation" report ?
I left a message on Mr. Nutter's voice mail this evening, requesting a copy of the New site
Plans & Elevation report as well (the doctor's are right down the road, they could have left
this new information on my porch, or, my door
Obviously , we will be unable to meet with them until we have seen the "New Site Plan" &
"Elevation" paper's. How can they honestly expect us to meet with them prior to examining
the "New Site Plans" and "Evaluation" ? And this is getting down to the wire - 21 days left ?
Mrs. Christie, this application process for the Rezoning of 5315 Bonneydale Road (from
Acredale Residential -15 to Office - 1 Conditional). Is turning into what we would call an
abuse of Virginia Beach Tax-Payers-hard-earned-money : Real-Estate Taxes, Personal Property
taxes, General sales taxes, etc... fund departments like Planning, Lawyers on staff to
assist, Etc...) Mr. Nutter is being paid by his clients: New First Colonial Road.
This one Rezoning application has been going on since the end of April 2889. This re-zoning
was deferred once (by them from what I understand). The second time (July 88,2e89) it was
taken of the agenda by you (the Planner). The new third date, has been set for: September
e9, 2889. And now! Twenty days prior to Sept. 89,2889 j The Planning Commission hearing.
We have to research a "New Site Plan" and "Elevation"?
Those who are opposing this encroachment into our Acredale Residence by petition, are getting
very frustrated at what they see as an abuse of Virginia Beach Public Resources by the New
First Colonial Associates.
Keep in mind ... I'm just the messenger and one of the Acredale Residence who will have her
large j peaceful backyard -- My wooded-piece-of-the-country set-in-the-middle-of-the-
city... forever-changed-by-this-encroachment if approved.
Mrs. Christie, you have a wonderful week. And once again, I thank-you for all you've done
to help me in this process. You've been patient and so helpful.
Wanda Marie Whittaker
1221 Acredale Road
Virginia Beach, Va. 23464
467-1245
apache975~cox.net
PS: Some photo's will be arriving at your e-mail shortly
2
Faith Christie
.--
From:
Sent:
To:
Subject:
Attachments:
apache975 [apache975@cox.net)
Thursday, August 20,20091 :16 AM
Faith Christie
Regarding:"New Site Plans" & "Elevation" . Photo's
New First Colonial @ 1300 Kempsville RD 3.ppt; New First Colonial @ 1300 Kempsville RD
2.ppt
Hello Mrs. ChristiE,
August 19 , 2009 (~ednesday)
You missed my Friday call (aw, that's sweet, I'll be sure to call you this Friday, if I'm
not on the third deck somewhere doing Crafts :) . Sorry about your swimmers ear, or, should
I feel sorry for the company your entertaining ( family:) ?
Thank-you for the uo-date on the "New Site Plans" and the "Elevation" report (?).
Mrs. Christie, could you please send me a copy of the traffic analysis report (the increase
in trips/traffic this type of Office will cause in Acredale / Bonneydale Road)? Obviously,
this is going to make a major impact on the already over-burdened traffic we Acredale
residence face on a daily bases (especially Bonneydale Road - I'm currently trying to gather
all the accident reports that have ,occurred on Bonneydale Road - LOTS!), but we need the
facts. So we can prE~sent the FACTS at the Planning Commission Hearing. So far the only
people with all the facts are Mr. Nutter (their attorney - he seems like a really nice man)
and perhaps you. ThE~re's nothing more humiliating then being asked question that you can't
intelligently answet' (well... actually there are, but I won't go there :)
Also, could you pleClsemail me the "New Site Plans" and "Evaluation" report ?
I left a message on Mr. Nutter's voice mail this evening, requesting a copy of the New site
Plans & Elevation rE~port as well (the doctor's are right down the road , they could have left
this new informatior on my porch, or, my door
Obviously , we will be unable to meet with them until we have seen the "New Site Plan" &
"Elevation" paper's. How can they honestly expect us to meet with them prior to examining
the "New Site Plans" and "Evaluation" ? And this is getting down to the wire - 21 days left ?
Mrs. Christie, this application process for the Rezoning of 5315 Bonneydale Road (from
Acredale Residential -15 to Office - 1 Conditional). Is turning into what we would call an
abuse of Virginia Beach Tax-Payers-hard-earned-money : Real-Estate Taxes, Personal Property
taxes, General sales taxes, etc... fund departments like Planning, Lawyers on staff to
assist, Etc...) Mr. Nutter is being paid by his clients: New First Colonial Road.
This one Rezoning application has been going on since the end of April 2889. This re-zoning
was deferred once (by them from what I understand). The second time (July 8S,2889) it was
taken of the agenda by you (the Planner). The new third date, has been set for: September
09, 2809. And now! Twenty days prior to Sept. 89,2009 ; The Planning Commission hearing.
We have to research a "New Site Plan" and "Elevation"?
Those who are opposing this encroachment into our Acredale Residence by petition, are getting
very frustrated at w1at they see as an abuse of Virginia Beach Public Resources by the New
First Colonial Associates,
1
II
Keep in mind ... I'm just the messenger and one of the Acredale Residence who will have her
large; peaceful backyard -- My wooded-piece-of-the-country set-in-the-middle-of-the-
~ity '" forever-changed-by-this-encroachment if approved.
Mrs. Christie, you have a wonderful week. And once again, I thank-you for all you've done
to help me in this process. You've been patient and so helpful.
Wanda Marie Whittaker
1221 Acredale Road
Virginia Beach, Va. 23464
467-1245
apache975~cox.net
PS: Some photo's will be arriving at your e-mail shortly
2
Faith Christie
-
From:
Sent:
To:
Cc:
Subject:
Faith Christie
Monday, August 17, 2009 12:28 PM
'apache975'
rj .nutter@troutmansanders.com
RE: 5315 Bonneydale Road - Rezoning from R-15 to 0-1
Good Afternoon Ms. ~hitaker,
Sorry I missed your call Friday - I missed having you end my week with a cheerful send-off:-)
Anyway, I've been out since Wednesday, 8/5, with family in town, and then swimmers ear. I did
receive a package with a new site plan and new elevation from Mr. Nutter's office. I've left
copies of both for you at the front desk. The application is scheduled for the september 9th
Planning Commission meeting. The field trip with the Planning Commission will be September
3rd during hours of 9:00 am to Noon. The exact route has not been developed so I have no idea
when they will come by during those hours. Please let me know if there is anything else you
need.
Faith Christie, CZA, CBO
Planner , City of Vir'ginia Beach
2405 Courthouse Drive, Room 115
Virginia Beach, VA ~3456
757-385-6379
-----Original Messa~e-----
From: apache975 [mailto:apache975@cox.net]
Sent: Friday, August 14, 2009 5:01 PM
To: Faith Christie
Subject: 5315 Bonneydale Road - Rezoning from R-15 to 0-1
Hello Mrs. Christie,
August 14,2009 (Friday)
I have a few questions regarding the application for rezoning (R-15 to 0-1) of the
residential property at 5315 Bonneydale Road (Acredale Subdivision) . I left a message on
your voice mail because I'm still having tech. problems with my Web-Mail and Outlook
Express.
Mrs. Christie, has ":lJew First Colonial Road Associates" submitted any new development plans
or "proffers" (what .:lre "proffers" ?) ? Or, are they using the same development plans that
were submitted with .their application a few months ago (I have a copy of those)? I will need
a copy of the new plans and any updated information regarding the application for Rezoning of
the property at 5315 Bonneydale Road (Acredale Subdivision) in order to present accurate
information to all those who are opposing this encroachment into our neighborhood
When is the "walk-thl'ough" scheduled for ? Do they do the walk-through during the peak hours,
where they will be able to see exactly what kind of a traffic problem already exist on
Bonneydale Road / 1300 Kempsville Road due to the cutting through of traffic ; avoiding the
Intersection of Indian River Road and Kempsville Road, also the Ferreyll Parkway & WaWa light
?
Somebody mentioned sc)mething about a "Green-Belt" in regards to the 5315 Bonneydale Property.
Do you know what thi~; is ? If so, could you briefly explain what that means?
Mrs. Christie, I wouJ.d like to thank you for all that you have done to help me understand
this whole process. I look forward to meeting you.
1
! I
II
Faith Christie
!"-
From:
Sent: .
To:
Subject:
apache975 [apache975@cox.net]
Monday, August 03, 2009 3:57 AM
Faith Christie
Fwd: Re: New First Colonial Road Associates
Hello again Mrs. Christie,
Could you please forward this to whoever it needs to be forwarded to? I have a long list of
VB.GOV people. I want to make sure It's sent to the right people, preferable all those who
are in agreement with all of us in Acredale who are opposing the rezoning of 5315 Bonneydale
Road.
Thank-You for your patience and
-------------
-------------
Date: Mon, 3 Aug 2889 3:13:18 -8488
From: apache975 <apache975@cox.net>
To: Faith Christie <FChristi@vbgov.com>
Subject: Re: New First Colonial Road Associates
---- Faith Christie <FChristi@vbgov.com> wrote:
-------------
-------------
I understand you've met with the neighbors and have come to some sort of compromise. I will
schedule the request for the September 9, 2889 Planning Commission meeting. Please insure the
site is properly posted by August 9th . New plans and or proffers must be submitted to me by
August 18th.
Faith Christie, CZA, CBO
Planner, City of Virginia Beach
2485 Courthouse Drive, Room 115
Virginia Beach, VA 23456
757-385-6379
Hello Mrs. Christie,
3, 2889
August
Hope you had a great weekend. Don't you just love rainy Monday's :)
Thank-You for the courteous e-mail on the new "Planning Commission Meeting>> (Sept.89,2009).
I have no ideal who has talked to who, but no-one has talked to me. And I have surely not
come to a compromise on this encroachment/rezoning into Acredale Subdivision (this is my home
and my children's home) . I am still 188% opposed, as are all the primary- residential-
Acredale- homeowners I have spoken with .The opposition to this rezoning/encroachment is
gaining momentum and more residents are getting involved, we're just waiting for that"
Rezoning>> sign to be posted in the yard (August 9th or 18th, 2889).
Regarding the "compromise>> : Only two rentals adjacent to 5315 Bonneydale Road jAcredale
Subdivision , that I can think of who have "compromised", (both are non-primary residents who
are renting their Acredale property) .
1
1) The Yellow house : 5389 Bonneydale Road next to 5315 Bonneydale Road; a rental
property purchased in 2884 . Within the last month there was a Remax- rental sign in the
front yard; house has had a few renter's, prior to this recent rent-out
2) The people who live behind me : Mr. & Mrs. Lamb (wonderful, friendly people, and a very
nice tenant renting the property) have rented-out their property on Kempsville Road every
since I have lived here ( July/August of 1993). In other words ... that is not their primary
residence (their backyard would be across the street from 5315 Bonneydale Road) . I have
spoke with them about the encroachment/rezoning . Not verbatim, but I got the impression that
Mrs. Lamb feels since property is blighted, the office 1 would be an improvement. I can
understand having a opinion like that, when you're not living in the neighborhood next to the
property being re-zJned - your tenanting is.
The Orthodontic Group (Dr.Savage, Dr. Sabol, & Dr. Visser) jA.K.A.:"New First Colonial Road
Associates,L.L.C." purchased the residential property on December 28,2887 for $195,508.80
(residential -15 at time of purchase) why haven't they made any improvements? They have had
over 1 X years too make improvements on the property they owned/acquired. Their intentions
when they purchased the residential home seem very clear and they took a gamble. What a
great deal ($) ~:or a business to purchase the residential property right next to their
existing office (1308 Kempsville Road), then encroach/rezone to an Office -1. What business
wouldn't want an opportunity like that? Acredale blighted property example : The house across
the street from me ()n Acredale Road, was purchased and the old owner started expanding and
then stopped. The house set for probable over a year in a blighted state due to the
abandonment of the owner and the bank not putting the house on the market . Many of us wanted
to purchase that home but for what ever the reason, they wouldn't put it up for sale , they
let it sit, and what remodeling had been started, was rotting away due to incomplete
exterior work and weather. When the house final went on the market , everyone was trying to
purchase that property. The new owners, in less then six months have turned that place from a
blighted eyesore, into a well kept home. And like most people in Acredale, they are
continuously working on improving their home.
The Ortho Group / A.K.A. "New First Colonial Road Associates", could / and should put that
home on the Real-Estate market; sell it, and re-coup their money, verse trying to encroach
into a stable neighborhood and disrupt a whole subdivision . The fact that this is even being
considered when the economy and local small business's in this area are going out of business
(Hence : All the available leasing options ) makes no sense at all , there is no way to
justify a rezoning in a stable neighborhood like Acredale. Might I point out: Acredale
Subdivision is in the heart of Kempsville. Every service we Acredale Residence need and want
_ is within 15 miles at the most. And that's using the back roads.
I don't like to sound repetitive but this cannot be emphasized enough. How about the
precedence this is setting when so many small businesses are going-under due to the Economic
Crisis . There are many leasing options available in major shopping developments right across
the street from the purchased property in Acredale Subdivision (5315 Bonneydale Road) :
KempsRiver Crossing (3 leasing options - "Harvey Lindsay # 648-8788"), Fordham shops at
KempsRiverJ and KempsRiver Center (4 leasing options -"Harvey Lindsay # 640-8788" ), and
within 1.5 miles t1ere is Providence Shopping development ( 3 leasing options available -
"Breeden Realty # 4815-1888" ) and Fairfield Shopping development ( 4 leasing options
available - "Wheeler Real Estate # 627-9888") .. To encroach/rezone in a crime free - mature
stable subdivision like AcredaleJ is not good for the hardworking taxpaying citizens and
their children . What about all the traffic on Bonneydale road due to the cutting through of
our neighborhood (OUI~ kids cannot even ride their bikes during rush hour due too speeding
cut-throughiers)? 8:1 cutting through Acredale Subdivision you avoid the MAJOR intersection
of Indian River Road & Kempsville Road . Also , you avoid the light at the WAWAS(Sp) &
Ferrell (sp) parkway .
2
.I
"Traffic Calming Program : The City of Virginia Beach, Department of Public Works/ Traffic
Engineering Division has instituted a pilot program to improve the quality of life to our
heigh~orhood streets" . Acredale Subdivision has serious traffic problems already because we
are a cut-through neighborhood. And as recently as March 10,20e9 (section 21-230 of the city
code of Virginia beach , " pertaining to Traffic Calming") the city amended : " any person
who operates a motor vehicle in excess of the maximum speed limit established for any portion
of the following highways located within the designated neighborhoods, on or after the
following date, shall be guilty of a traffic infraction punishable by a prepaid fine of two
hundred dollars, in addition to other penalties provided by law. No portion of the fine shall
be suspended unless the court orders twenty hours of community service". "(2) Acredale:
Andover Road; Langston Road; Bonneydale Road; Olive Road, Alton Road; Old Kempsville Road."
So, by allowing a rezoning in Acredale which will result in a higher traffic volume on our
already traffic burdened neighborhood (per the city) , is a blatant disregard for the
homeowners of Acredale and the safety of our children as they play and walk to the bus stops.
Once again , let me point out , there are ample leasing options available with ample parking
to accommodate an office without jeopardizing the safety of the homeowners . And , without
disrupting the quality of life that we in Acredale enjoy. Acredale is a very unique
neighborhood, one of the best in Kempsville. Houses rarely go up for sale but when they do
they are not on the market long. The children in Acredale attend: Kempsville Elementary,
Kempsville Middle and Kempsville High School, Excellent Schools!
The only people this rezoning from residential 15 to Office 1 will benefit is : " New First
Colonial Road Associates". This Orthodontic Group (Dr. Savage, Dr. Sabol & Dr. Visser) ;
including the office space they occupy at 13ee Kempsville Road, have a total of 5 offices.
PS. The property at 5315 Bonneydale Road is a house I see from my backyard . In Winter when
leaves have fallen , I have very clear view of this property - this rezoning/encroachment
will severely effect the peace and serenity I enjoy in my large, wooded , country-setting
backyard . If this encroachment takes place , my backyard view, will be a well lit office and
parking lot with strangers coming and going . My daughter and her friends will lose their
privacy as they swim and play in our backyard.
Pro's: For rezoning from residential to office in Acredale Subdivision: None
I oppose this rezoning of 5315 Bonneydale Road in the Acredale Subdivision.
Have a great day Mrs. Christie.
Wanda Marie Whittaker
1221 Acredale Road
Virginia Beach, VA. 23464
apache975@cox.net
PS: Mrs. Christie, I am so sorry that this is so repetitive. I also apologize for the lack of
orderly composition, and any, and all grammar and punctuation errors, but look at the time
and please understand: I have 1- husband, 1- 23 year old who just came back from Iraq, 1-
15 year old nephew staying with me for the summer, 1- 14 year old daughter and 2 dogs, and
the list goes on and on ... :)=============
3
I '
Faith Christie
-';.~
From:
Sent:
To:
Cc:
Subject:
Faith Christie
Monday, August 03, 2009 8:40 AM
'apache975'
rj.nutter@troutmansanders.com; Stephen J. White; Karen Lasley
RE: Re: New First Colonial Road Associates
Good Morning Ms. Whitaker,
I need to clear up one item first. I misunderstood Mr. Nutter when he said he had met with
the neighbors. I as~;umed he meant the proposed meeting with you and the civic league. He
advised me that th~1 have only met with the adjacent neighbor at 5389 Bonneydale Rd., so that
is my fault. I undel'stand they are still waiting for you to contact them for a meeting to
discuss the project, I will make sure your concerns are brought to the attention of staff at
our agenda review mE!eting, and also provide a copy of this correspondence to the Planning
Commission at the appropriate time.
Faith Christie, CZA, CBO
Planner, City of Vir~inia Beach
2485 Courthouse Dri~e, Room 115
Virginia Beach, VA 23456
757-385-6379
-----Original Message-----
From: apache975 [mailto:apache975@cox.net]
Sent: Monday, August 133, 213139 3:57 AM
To: Faith Christie
Subject: Fwd: Re: New First Colonial Road Associates
Hello again Mrs. Christie ,
Could you please fo~~ard this to whoever it needs to be forwarded to? I have a long list of
VB.GOV people. I want to make sure It's sent to the right people, preferable all those who
are in agreement witll all of us in Acredale who are opposing the rezoning of 5315 Bonneydale
Road.
Thank-You for your patience and
-------------
-------------
Date: Man, 3 Aug 213139 3:13:18 -1341313
From: apache975 <apache975@cox.net>
To: Faith Christie <FChristi@vbgov.com>
Subject: Re: New Fir~;t Colonial Road Associates
---- Faith Christie <:FChristi@vbgov.com> wrote:
-------------
-------------
I understand you've met with the neighbors and have come to some sort of compromise. I will
schedule the request for the September 9, 2889 Planning Commission meeting. Please insure the
site is properly posted by August 9th . New plans and or proffers must be submitted to me by
August 18th.
Faith Christie, CZA, CBO
Planner, City of Virginia Beach
2485 Courthouse Drive, Room 115
1
'I
Faith Christie
..,.-
From:
Sent:
To:
Subject:
Attachments:
apache975 [apache975@cox.net]
Friday, July 10, 2009 4:41 PM
Faith Christie
5315 Bonneydale Road
File0010.jpg; File0012.jpg; File0013.jpg; File0014.jpg
Hello Mrs. Christi,
I contacted Mr. Nutter (lawyer) and Dr. Sabol's voice mail on : 07-10-09(Friday). I left
message stating we oppose encroachment / rezoning J but we are willing to listen and discuss
their "updated/revised" plans --- once they submit them to the Planning Office. I am having
tech. problems with my webmail , so if the attachments do not arrive, please e-mail me and I
will immediately mail them out. Thank-you for all your assistance and patients :) Have a
wonderful weekend.
Mrs. Wanda Marie Whittaker (tax payer :)
1221 Acredale Subdivision (since 1993)
apache975~cox.net
467-1245
1
CITY OF VIRGINIA BEACH
INTER-OFFICE CORRESPONDENCE
In Reply Refer To Our File No. DF-7391
DATE: October 14,2009
FROM:
Mark D. Stiles
E:. Kay WiISO~
DEPT: City Attorney
DEPT: City Attorney
TO:
RE: Conditional Zoning Application; New First Colonial Road Associates, LLC
The above-referenced conditional zoning application is scheduled to be heard by the
City Council on October 27,2009. I have reviewed the subject proffer agreement, dated
February 28, 2009 and have determined it to be legally sufficient and in proper legal form.
A copy of the clgreement is attached.
Please 1eel free to call me if you have any questions or wish to discuss this matter
further.
BKW/ka
Enclosure
cc: Kathleen Hassen
'I
Document Prepared By:
Troutman Sanders LLP
222 Central Park Avenue, Suite 2000
Virginia Beach, VA 23462
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of this 28th day of February, 2009,
by and between NEW FIRST COLONIAL ROAD ASSOCIATES. L.L.C., a Virginia limited
liability company (hereinafter referred to as the "Grantor"), the current owner of that certain
property located in the City of Virginia Beach, as more particularly described below; and the
CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia
(hereinafter referred to as the "Grantee").
WIT N E SSE T H:
WHEREAS, the Grantor is the current owner of that certain property located in the City
of Virginia Beach, Virginia identified by GPIN 1465 - 49 - 2069 - 0000, as more particularly
described in Exhibit A, attached hereto and incorporated herein by reference (the "Property").
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
ofthe Property from R-15 to Conditional 0-1,
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 0-1 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 0-1 zoning districts by the
existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the
physical development, operation and use of the Property to be adopted as a part of said
amendment to the new Zoning Map relative to the Property, all of which have a reasonable
relation to the rezoning and the need for which is generated by the rezoning; and
WHEREAS, said conditions having been proffered by the Grantor and allowed and
accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall
GPIN NO. 1465 - 49 - 2069 - 0000
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, rezonir.g, site plan, building permit or subdivision approval, hereby makes the following
declaration of conditions and restrictions which shall restrict and govern the physical
development, operation and use of the Property and hereby covenants and agrees that 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 Gnmtor, its heirs, personal representatives, assigns, grantees and other successors in
interest or title, namely:
1. The Grantor shall develop the Property in substantial conformity with the
conceptual site plan prepared by Porterfield Design Center, entitled "Concept Plan, 5315
Bonneydale Read for Savage, Sabol & Visser, LTD" , dated October 13, 2008 (the "Concept
Plan"), a copy of which is on file with the Department of Planning and has been exhibited to the
City Council.
2. The Grantor shall develop the structures on the Property in substantial conformity
with the conceptual site elevations prepared by Porterfield Design Center, entitled "Concept
Elevations, 5315 Bonneyda1e Road for Savage, Sabol & Visser, LTD", dated October 13, 2008
(the "Site Elevations"), a copy of which is on file with the Department of Planning and has been
exhibited to the City Council.
3. The Grantor shall not develop any structure on the Property in excess of twenty-
two feet (22') in height.
4. The Grantor shall provide landscaping and fencing on the Property in substantial
conformity with the Concept Plan and Site Elevations.
5. Further conditions lawfully imposed by applicable development ordinances may
be required by the Grantee during detailed site plan and/or subdivision review and administration
2
'I
of applicable City Codes by all cognizant City agencies and departments to meet all applicable
City Code requirements.
All references hereinabove to zoning districts and to regulations applicable thereto, refer
to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the
conditional zoning amendment is approved by the Grantee.
The Grantor covenants and agrees that (1) the Zoning Administrator of the City of
Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing
body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions,
including (i) the ordering in writing of the remedying of any noncompliance with such
conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions,
including mandatory or prohibitory injunction, abatement, damages or other appropriate action,
suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the
issuance of any of the required building or occupancy permits as may be appropriate; (3) if
aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the
City Code, the CZO or this Agreement, the Grantor shall petition the governing body for the
review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an
appropriate symbol on the map the existence of conditions attaching to the zoning of the subject
Property on the map and that the ordinance and the conditions may be made readily available and
accessible for public inspection in the office of the Zoning Administrator and in the 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.
[Remainder of Page Intentionally Left Blank. Separate Signature Page to Follow.]
3
IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the
date first written above.
GRANTOR:
NEW FIRST COLONIAL ROAD ASSOCIATES,
L.L.c., a Virginia limited liability company
By: ~i~
Name: '1SiLnT V>5;.~e/'L-
Title: SF ~~
COMMONWEALTH OF VIRGINIA
CITY OF VIRGINIA BEACH, to-wit:
The fcregoing instrument was acknowledged before me this J~ay of February, 2009,
by 'Be' ~+rJfi s::er , who is personally known to me or has
produced Vel. J:)(i vtXs \i~as identification in his capacity as .ecxe..~r of New
First Colonial Road Associates, L.L.C., a Virginia limited liability company, 0 ehal f the
company.
My Commission Expires:
\/31 \lJ
[NOTARIAL SEAL/STAMP]
Registration l'umber: ~304-c.:x:::)
4
'I I
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereunto
belonging, situate, lying and being in the City of Virginia Beach, Virginia, and being known,
numbered and designated as Lot 34, as shown on that certain plat entitled "Section 5, of
AcREDALE", property of JOHN L. & OLIVE ESTELLE WOOD, Kempsville District -
Princess Anne Co., Va", which plat is duly recorded in the Clerk's Office of the Circuit Court of
the City of Virginia Beach, Virginia, in Map Book 27, at page 61.
IT BEING the same property conveyed to New First Colonial Road Associates, L.L.C. by deed
:from Nicolas Carpio, Jr. and Virginia G. Carpio dated December 3,2007, recorded in the Clerk's
Office aforesaid as Instrument Number 20071220001678410.
5
~ESSUP CONSTRUCTION
Mapk!';ft!stle TessuJ) Construction~ LLC
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Conditional Zoning Change: from R-40 to Conditional R-20
Relevant Information:
· Lynnhaven District
. The applicant proposes to change the zoning of two existing single-
family lots, zoned R-40 Residential, to R-20 Residential District.
· The applicant's purpose in rezoning these lots is to divide the
com bined property into four single-family waterfront lots.
Evaluation and Recommendation:
· Planning Staff recommended denial
· Planning Commission recommends denial (11-0)
· There was opposition.
'I
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: JESSUP CONSTRUCTION L.L.C./ JOHN P. MYERS, Chanae of Zonina
District Classification, R-40 Residential District to Conditional R-20 Residential
District, 1125 and 1129 Trantwood Avenue. LYNNHAVEN DISTRICT
MEETING DATE: October 27,2009
. Background:
The applicant proposes to change the zoning of two existing single-family lots,
zoned R-40 Residential, to R-20 Residential District. The existing treed lots are
located along a fresh water lake in an older well-established neighborhood. The
applicant's purpose in rezoning this lot is to divide the property into four single-
family waterfront lots.
A portion of the subject site is located within the 65-70 db DNL AICUZ (Sub-Area
3). On September 24, the City-Navy Memorandum of Understanding (MOU)
Committee met to review this rezoning request for consistency with the AICUZ
Overlay Ordinance (Article 18 of the City Zoning Ordinance). One of the new lots
proposed by the applicant falls entirely within the 65-70 AICUZ. The existing
house located on the lot being subdivided is outside the AICUZ. The applicant
was notified that the new lot within the AICUZ should be deleted from the
proposal. There has been no response from the applicant.
. Considerations:
The existing traditional brick and wood frame homes located on the lots were
built in the early to mid-1960s. The approximate size of each of the existing
homes is less than 2,400 square feet. The style of the existing houses is similar
to many of the houses built in that time frame within the neighborhood. The
applicant proposes to demolish the two homes and build four larger transitional-
style houses on the combined properties.
An examination of this well-established neighborhood of houses built during the
1960s on lots with ample land around each reveals the replacement of two
homes each under 2,400 SF with four significantly larger transitional-style houses
would be out of character with the surrounding area. While many of the R-20
Residential lots are larger than 20,000 square feet (the two properties to the
south of the subject lots are 30,700 square feet and 28,500 square feet), a
rezoning of the subject site will establish a precedent for zoning changes on the
I '
JESSUP CONSTRUCTION, LLC
Page 2 of 2
R-40 Residential lots in this area, which would be injurious to this neighborhood
through a loss of mature vegetative cover, increased impact on adjacent
waterways, increased impermeable surface, increased traffic are examples.
Under the provisions of Article 18 of the City Zoning Ordinance (AICUZ Overlay
Ordinance), "no application shall be approved unless the uses and structures it
contemplates are designated as compatible. . . unless the City Council finds that
no reasonable use designated as compatible under the applicable table or tables
can be made of the property. In such cases, the City Council shall approve the
proposod use of property at the lowest density or intensity of development that is
reasonable." In this case, the applicant is proposing an incompatible use (one
additional residential unit) with Sub-Area 3 of the 65-70 dB DNL AICUZ.
There was opposition to this request.
. Recommendations:
The Planning Commission passed a motion by a recorded vote of 11-0 to deny
this request.
. Attachments:
Staff Review and Disclosure Statement
Planning Commission Minutes
Location Map and Summary
Recommended Action: Staff recommends denial. Planning Commission recommends denial.
Submitting Department/Agency: Planning Department
City Manager(~ /L 1 ~ bO>z.
14
September 9, 2009 Public Hearing
APPLICANT:
JESSUP
CONSTRUCTION,
LLC
PROPERTY OWNERS:
JOHN P. MYERS I
CONSTANCE MIX
STAFF PLANNER: Karen Prochilo
REQUEST:
Conditional Chanqe of Zoninq (R-40 Residential District to R-20 Residential District)
ADDRESS I DESCRIPTION: 1125 and 1129 Trantwood Avenue.
GPIN:
14988502950000
14988504260000
ELECTION DISTRICT:
LYNNHAVEN
SITE SIZE:
Lot 24 - 45433.76 SF
Lot 25 - 55911 .29 SF
Total: 101,345.05 SF
AICUZ:
Property is split. Less than
65 dB DNL and 65 dB to 70
dB DNL
SUMMARY OF REQUEST
The applicant proposes to change the zoning of two existing single-family lots, zoned R-40 Residential, to
R-20 Residential District. The existing treed lots are located along a fresh water lake in an older well-
established neighborhood. The applicant's purpose in rezoning this lot is to divide the property into four
single-family waterfront lots.
The existing traditional brick and wood frame homes were built in the early to mid-1960s. The
approximate size of each of the existing homes is less than 2,400 square feet. The style of the existing
houses is similar to many of the houses built in that time frame within the neighborhood. The applicant
proposes to demolish the two homes and build four larger transitional-style houses on the combined
properties.
JESSUP CONSTRUCTION LLC I MYERS & MIX
Agenda IterT) 14
page 1
LAND USE AND ZONING INFORMATION
EXISTING LAND USE: Single-family residential dwellings
SURROUNDING LAND
USE AND ZONING:
North:
South:
East:
. Single-family dwelling I R-40 Residential District
. Single-family dwelling I R-20 Residential District
. Across Trantwood Avenue, single-family dwelling I R-40
Residential District
. Across water, single-family dwelling I R-20 Residential District
West:
NATURAL R.ESOURCE AND
CULTURAL FEATURES:
The site is two treed residential lots each with a home and driveway
backing onto a lake. The property is within the Chesapeake Bay
Watershed.
IMPACT ON CITY SERVICES
MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Trantwood
Avenue in the vicinity of this proposal is a two-lane cul-de-sac local street off of Rose Hall Drive. Rose Hall
Drive is a two.lane collector. Neither Trantwood Avenue nor Rose Hall Drive is in the Master Transportation
Plan. Currently, no CIP projects are proposed for either street. This proposal does not create any adverse
impacts to the existing roadway network.
WATER and :SEWER: This site connects to City water and City sanitary sewer. Any newly created lot must
connect to City water and City sewer.
EVALUATION AND RECOMMENDATION
Recommendation:
Staff recommonds denial of this request.
Comprehensiive Plan:
The Compreh'3nsive Plan Map identifies this site as being within 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.
Evaluation:
An examination of this well-established neighborhood of houses built during the 19605 on lots with ample
land around each reveals the replacement of two homes each under 2,400 SF with four significantly
larger transitional-style houses would be out of character with the surrounding area. While many of the R-
20 Residential lots are larger than 20,000 square feet (the two properties to the south of the subject lots
are 30,700 square feet and 28,500 square feet), a rezoning of the subject site will establish a precedent
JESSUP CONSTRUCTION LLC I MYERS &MIX
Agenda Item 14
Page 2
II II
I
,
for zoning changes on the R-40 Residential lots in this area, which would be injurious to this
neighborhood through a loss of mature vegetative cover, increased impact on adjacent waterways,
increased impermeable surface, increased traffic are examples.
The building photographs provided by the applicant as typical building elevations conflict with what exists
within the neighborhood. The proposed home styles are not consistent with the existing streetscape.
Proffer 3 does not restrict the setbacks any more than the typical R-20 setbacks for the front and side
yards and allows for four structures almost double in size of the existing residential foot prints. With the
smaller lot size of the R-20 and the significant increase for square footage these four lots will not maintain
the appeal and charm this neighborhood holds.
PROFFERS
The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The
applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these
proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable,"
(~107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve
as conditions restricting the use of the property as proposed with this change of zoning.
PROFFER 1:
When the property is developed, in order to achieve a coordinated design and development on the site
consistent with the surrounding neighborhood all lots shall be at least 20,000 square feet in area and of the
same basic configuration and dimensions as depicted on the Subdivision Plan prepared by Bonifant Land
Surveys, dated April 30,2009 which Subdivision Plat is attached hereto as Exhibit A.
PROFFER 2:
All building lots created upon the Property shall be subject to that certain DECLARATION OF
RESTRICTIONS of record, in the aforesaid Clerk's Office in Deed Book 578 at Page 73 dated February 27,
1954 but omitting any covenant or restriction based upon race, color, religion, sex handicap, familial status
or national origin.
PROFFER 3:
All dwellings constructed on the lots created upon the Property shall adhere to a 50 foot front setback from a
public street, a 15 foot side yard setback, contain a two-car garage, an consist of no less than TWO
THOUSAND SEVEN HUNDRED (2,700) square feet of conditioned space or more than FOUR THOUSAND
FIVE HUNDRED (4500) square feet of conditioned space.
PROFFER 4:
The exterior surfaces of all dwellings constructed on the lots created upon the Property shall not be less than
70 % brick veneer.
PROFFER 5:
To the maximum extent reasonable, Declarant shall preserve existing vegetation along the front and original
side of boundaries of the Property.
PROFFER 6:
All covenants, restrictions and conditions relating to the Property and currently in existence shall remain in
JESSUP CONSTRUCTION LLC f MYERS & MIX
Agenda Item 14
Page 3
full force and effect and remain unaltered by these proffered covenants, restrictions, and conditions.
PROFFER ?:
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 not acceptable as they provide for a development that
staff finds is not consistent with the Comprehensive Plan and is not compatible to the surrounding area.
The City Attorney's Office has reviewed the proffer agreement dated August 14, 2009, 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 submi:tted 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.
JESSUP CONSTRUCTION llC I MYERS &...MIX
Agenda lterq 14
Rage 4
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AERIAL OF SITE LOCATION
JESSUP CONSTRUCTION LLC I MYERS & MIX
Agenda Item 14
Page 5
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RI:ZONING PLAN I
LOTS 24 & 25A SECTION 2 l.
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PROPOSED REZONING PLAN
JESSUP CONSTRUCTION LLC I MYERS &.MIX
Agenda Itel'\') 14
Page 6
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EXISTING TWO-STORY DWELLING - LOT 24
JESSUP CONSTRUCTION LLC I MYERS & MIX
Agenda Iten;'t 14
Page 7
EXISTING ONE STORY DWELLING - LOT 25A
JESSUP CONSTRUCTION LLC I MYERS & MIX
Agenda Itenl.14
Page 8
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PROPOSED BUILDING ELEVATIONS
JESSUP CONSTRUCTION LLC I MYERS &MIX
Agenda Item 14
Page 9
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PROPOSED BUILDING ELEVATIONS
JESSUP CONSTRUCTION LLC I MYERS &..MIX
Agenda Itel114
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Conditional Zoning Change: from R-40 to Conditional R-20
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1 Subdivision Variance
ZONING HISTORY
JESSUP CONSTRUCTION LLC I MYERS &..tv1IX
Agenda Item 14
Page 11
I DISCLOSURE STATEMENT
APPUCANT DISCLOSURE
Ifthe 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)
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2. List all businesses that have a parent-subsidiary 1 or affiliated business entitr
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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, finn. business, or other
unincorporated organization. complete the foUowing:
1. List the property owner name followed by the names of all officers. members,
trustees, partners, ete, below: (Attach list if necessary)
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2. 1Jl~t all businesses that have a parent-subsidiary' or affiliated business entitf
relationship with the applicant: (Attach list if necessary)
~~heCk here if the property owner is NOT a corporation, partnership, firm,
business. or other unincorporated organization.
~>ee next page for footnotes
Does an offiCial or employee of ~ity of Virginia Beach have an interest in the
SUbjel:t land? Yes D- No JbL
If yes, what is the name of the official or employee and the nature of their Interest?
C~t"\a Rezornng ~".aI!C"
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ADDITIONAL OISCLOSURES
Ust 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)
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, .Parent-subsidiary relationship' means "a relationship that exists when one
corporation directly or indirectly owns shares possessing more than 50 percent of 1he voting
power of another corporation." See State and Local Government Conflict of Interests Act, Va.
Code S 2,2-3101.
:t "Affiliated bu$iness entity relationship" means "a relationship, other than parent-
subsidiary relationship, that exists when (I) one business entity has a controlling ownership
interest in the other bu$iness entity, (il) a controlling owner in one entity is also a controlling
owner in 1he other entity, or (iii) there is shared management or control between 1he business
entities. Factors that should be considered in determining the existence of an affiliated
business entity relationship include that 1he same person or substantiatly the same person
own or manage the two entitles; there are common or commingled funds or assets; the
business entities share the use of the same offices or employees or otherwise share acti\llties.
resources or personnel on a regular basis; or there is otherwise a close woriOng relationship
between 1he entities.. See State and Local Government Conflict of Interests Act, Va. Code !
2.2-3101 .
CERTIFICATION: I cemty that the Information contained herein is true and aca.srat$.
I understand that, upon receipt of notification {postcard) that the application has been scheduled for
public heating,! am responsible for obtaining and posting the requiTed sign on the subject property at
least 30 days prior to the scheduled public heanng according to the instructions in this package. The
undersigned also consents to entry upon the SlJbject property by employees of the Department of
Planning to photograph and view the site for purposes of processing and evaluating this application
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Revt\llld 7/3/2007
JESSUP CONSTRUCTION LLC I MYERS & MIX
Agenda Item 14
Page 13
IOISCLOSURESTATEMENT
I
APPLlCANT 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 necessal}')
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2. Ust all Dusmesses that have a parent-subsidiary1 or affiliated business entity'!
relationship with the applicant: (Attach list if necessal}')
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 appt;cant.
If tho 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,
bustees, partners. etc. below: (Attach list if necessary)
l7Jr-"c..E .4-, h/X {..J ;-
2. Lst all businesses that have a parent-subsidiary1 or affiliated business entity'!
mlationship with the applicant: (Attach list if necessal}')
l1j'check here if the property owner is NOT a corporation, partnership, firm,
business, or other unincorporated organization.
7 See next page for footnotes
Does an official or employee of ~ity of Virginia Beach have an interest in the
subject land? Yes CL No ]2l
If yes, what is the name of the official or employee and the nature of their interest?
ClJOIlI\iomj Rezoning Applica1\oo
Page 11 of 12
Revised 1111612006
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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)
1 'Parent-subsidiary relationship' means 'a relationship that exists when one
corporation direcUy 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.
CERTIFICA liON: I certify that the infonnation 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 3D 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
Pfanning to photograph and view the site for purposes of processing and evaluating this application.
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Property Owner's Signature (if different than applicant)
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Print Name
CondiIiooaI Rezoning Applieation
Page 12 of 12
Rellised 7f312007
DISCLOSURE STATEME~"
JESSUP CONSTRUCTION LLC I MYERS &..MIX
Agenda Iten'l14
Page 15
Item #14
Jessup Construction, L.L.C.
Change of Zoning District Classification
1125 and 1129 Trantwood Avenue
District 5
Lynnhaven
September 9,2009
REGULAR
Donald Horsley: The next application is item 14, Jessup Construction, L.L.C. / John P. Myers.
An application for Change of Zoning District Classification from R-40 Residential District to
Conditional R.20 Residential District on property located at 1125 and 1129 Trantwood Avenue,
District 5, Lynnhaven. Mr. Watson?
Les Watson: Madame Chair and members of the Planning Commission, my name is Les
Watson, and I'm a local attorney. I represent Jessup Construction, which is one of the applicants
in this matter. \\ bat we are asking you to do is allow us to take two large residential lots in
Trantwood and create four conforming residential lots on the same property. It is not a radical
application. We're asking to take these two lots and create four completely conforming lots on
the property once: it is rezoned to R-20. The property is currently zoned R-40. It has been my
privilege really to represent Foster Matter for over 25 years, and I will tell you that his reputation
in the community, which I will address, is I think, unparallel. What is really going on here is that
we have an older neighborhood. It was built in the 50s and 60s. It was originally not served by
city sewer, which it is now. Many more people in those days wanted large lots, and a house of
2,400 square feet if the one I grew up in is any example was considered a pretty big house. We
grew up in a much smaller house than that but today the times have changed. And I think people
want something different slightly than what they wanted in the 50s and 60s. Now, at this point, I
would like to pas:; out this extremely high tech visual aid that I prepared (a colored map).
David Redmond: Am I going to get some supplemental pay for all of these supplements?
Les Watson: As you can see when you get this plat, the area we're talking, the area in the
immediate vicinity of this property is overwhelming comprised of R -10, R -15, R -20, and R -30
property. The property that we're seeking to rezone is in blue because someone told me that was
a friendly color. I'll use that for the property that which we're talking about today, the newer
neighborhoods in the vicinity. There should be plenty for everyone.
Janice Anderson: They're fighting over it.
Les Watson: They are all pretty much the same. Interestingly the newer neighborhoods in the
area over here to the northeast, Lake Trant and Colonial Oaks right across the other side of the
lake are mostly R-lO. I used to live at the end of Tanglewood Trail on a R.lO lot. And the big
lots in our neighborhood were the R-20 lots. That property was developed. My first house was
developed in the 70s, I guess. But in those days R-1 0 was more of a standard for interior lots
than R-20 was in the older days. It was typical to have R-40 around the lake in the 50s. It is
'I
Item #14
Jessup Construction, L.L.c.
Page 2
more typical to have R-20 around the lake these days. At least that is what my math indicates.
Those are the facts today. The property we're talking about and you can see this friendly blue
property here actually abuts R-20 property to the immediate south, and it largely backs up to R-
20 property to the west. So, this is not some sort of block busting endeavor. It is just sort of
logical extension of the way people live today. The lots on our plan that have been submitted are
not exactly postage stamps. They are a minimum of20,000 square feet. One of them is 24,000
plus square feet, and the largest one is 32,000 square feet plus. Even though we are only asking
for R-20, one of the lots is going to be over 30,000 square feet, and the one adjacent to it is going
to be over 24,000 square feet. So, they are not tiny little lots. Undeniable fact is that fewer and
fewer families, at least in my experience, closing loans that I used to do, want to own properties
on big lots with older, smaller perhaps less functional houses on them. That is just not what
people are looking for today. I believe the owners of the property, which is the subject matter of
the application they are going to comment on that shortly. The staff expressed a concern that the
design submitted Jessup Construction are not like the other houses on the street. And they want
to maintain consistency. But the problem is that if you say that the lots on these properties,
which is the subject matter of the application, are outdated and you pay the price that the land
demands, then if you put the house on the lot the price of the land requires, you're talking about
building a 7,000 square foot house on a $500,000 lot, and that is truly incompatible with the
neighborhood, which you can all do as a matter of right. You can knock these houses down and
put a much larger house on there as a matter of right. We're asking for you to allow us to do
something which is much closer to what is already in the neighborhood. Now Mr. Matter builds
a lot of different houses. I've got some examples here, some photographs of some houses that he
has built, and the styles that he can build vary. The sizes that he built vary. Like I said, I've
represented him for 25 years. He is a craftsman. He has build a lot of homes on infilllots in
exi.sting neighborhoods, and he has a history of building high quality homes, sometimes on
vacant lots, and sometimes by replacing older less functional perhaps obsolete houses. He builds
homes which feature the amenities that today's families want on lots that are the size they want
to live on. They are beautifully designed. They are beautifully constructed. They have the affect
of revitalizing neighborhoods. Neighborhoods get tired. Sometimes the houses need upgrading.
Sometimes the value ofthe land won't permit you to build the same size house that is on there
now. Like I said people are not looking today for 2,000 square foot houses on 1 ~ acre lots.
They want more square footage inside, less square footage outside. You will hear more about
that. I heard comments at the informal session loud and clear. I've spoken with Mr. Matter and
to the other applicants, and there are changes that we could make readily in the proffers that are
before you today. We had said that all the homes constructed on the lots would comply with the
minimum zoning setback requirements. In discussion on the northern most lot, we would proffer
that the setback would be 75 feet from the street, and on the two southern lots we could proffer
that the homes would be no closer than 65 feet to the front line. The proffers also say that the
houses would be between 2,700 square feet and 4,500 square feet. We can say comfortably that
the houses would be limited to 3,500 square, feet, which would make them more compatible in
size to the neighborhood. In fact one of the houses that we would be removing has 3,036 square
feet in it right now. The one house is not tremendously small. In any event, I would like to pass
around these photographs that Mr. Matter has taken in fact constructed in the neighborhood. I see
that my time is up, and I appreciate your attention. I'll be happy to answer any questions that you
might have.
Item #14
Jessup Construction, L.L.C.
Page 3
Janice Anderson: Are there any questions? Jay?
Jay Bernas: I love the map by the way because for me what kind of highlights my question is the
area in yellow tbat you have designated as R-40. To me, when I think of yellow, I think of
caution.
Les Watson: I'm sorry.
Jay Bernas: Cau1ion. So, I am cautious about the fact that what's to say that if we approve this
that all of this in yellow doesn't turn to orange? How do you address that?
Les Watson: Well, some of that is in yellow already has brand new large houses built on it. A
number ofthose houses already have homes built on them in the fairly recent past. In fact, where
I think Mr. Dehart used to live the gentleman who developed a lot of the land around there lived.
His house has now been divided into five lots. He was right on Rose Hall Road in a big
expensive house that fronted there, as with each application stands on its own. Some of the lots
that are large have typography that won't permit subdivision and building of two individual
houses. And, some of them may be worthy of consideration. I mean, I understand that this is an
established neighborhood. I don't know whether there is any opposition or not. Is there Mr.
Horsley? Okay. I will make a comment after that but there is nothing that absolutely prevents
you from conside:ring other applications. This is the end of an effective point. We have twelve
or thirteen houseB on the street, depending how many of the flag lots front on this street. I
couldn't figure out from the map fronted on the street and how many fronted on the street
behind. Seven of them are already R-20. We have a letter of support of one of the other owners
ofthe R-40 lots, .md two of the applicants are owners of the R-40 lots themselves. I think you
should have the opportunity to consider them because the practical matter is that in certain
circumstances people get stuck in a position that they can't get out of, and the only opportunity
to get out of it may be, because land values have gone up as they have, and the only opportunity
to get out may be to consider a subdivision where subdivision is appropriate. That is too much to
answer. I apologze.
Janice Anderson: Joe?
Joseph Strange: All the uncolored sectio~ on the left is that all R-40 too?
Les Watson: Thi~; is on the plat of Tract Berkshire, which is on a lot oflakes back there. Most
of that is R-40 yeB. It varies but most of it is R-40. I mean the part in the middle that is
uncolored is the lake. I followed the bank as best I could.
Janice Anderson: Are there any other questions of Mr. Watson at this time? We will bring you
back up. Thank you.
Les Watson: Thank you.
Donald Horsley: The next speaker in support is Foster Matter.
"I
Item #14
Jessup Construction, L.L.C.
Page 4
Janice Anderson: Welcome sir. Please state your name.
Foster Matter: Foster Matter. I'm the developer for Jessup Construction. I really don't have a
comment other than I think Les pretty much covered everything what we're trying to do. We
feel, as the city said in the newspaper a while back, we going to feel like we're revitalizing the
neighborhood. We're doing things and making them look a lot better then what's there. That's
all that I got to say.
Janice Anderson: Thank you sir.
Donald Horsley: Lucinda Melone.
Janice Anderson: Welcome ma'am. Please state your name.
Lucinda Melone: Good afternoon. I'm Lucinda Melone. Because I know that your afternoon
has gotten long, I have sat back there and written down my thoughts so we can cut right to the
chase. I am the daughter of Lewellyn and Constance, who are owners of one of the two
properties being talked about today on Trantwood A venue, I am here on my own accord and of
concern for my parents, both of who are in their 80s. And because of serious falls in the past six
months, which have resulted in memory loss, balance issues, and an over decline in their health,
my parents are in the need of getting out of their home as soon as possible. Quite frankly, I'm
concerned about every minute they're in this home. As it is evident that they are way beyond
their ability and energy to maintain, and is way too large for their safety. Unfortunately, my
parents have been unable to sell their home. They have had their home on the market for the past
18 months, with two different realtors. During these 18 months, the comments of the majority of
the visitors at their open houses was while they thought the waterfront lot was gorgeous and the
landscaping as well, the 1960's style home, the layout ofthe home are not what people who are
house hunting in that price range are looking for because it lacks so many amenities. My
parent's house is not the house that people are looking to live in. My parent's lot is the lot that
people are looking to live on. The two real estate agents who have listed this property have tried
to paint a realistic picture for my mom and dad. My parents love the beauty of their property and
would be thrilled if someone would buy their home, and enjoy it as much as they have for the
past 15 years. However, they have had no other choice at this point than to pursue the offer of
Mr. Foster Matter of Jessup Construction. And while we are very aware of the neighbor's
concerns about the loss of privacy, Mr. Matter has assured us that every effort would be made to
maintain the beauty of the lot that makes it so attractive and inviting. So, my presence here
today is out of concern for my parent's health and their concerns, and the need to sell their
property. And based on what today's waterfront property shoppers are looking for, this style of
home is not it. We feel that selling their property to Mr. Matter is a win-win for all involved.
Obviously it would enable my parents to sell their property but it also allows attractive homes to
be built there allowing others to enjoy the beauty and setting that my parents have enjoyed for
these past 15 years. And while it appears that the housing sizing and setbacks need adjustment by
Mr. Matter in order to comply with your request, I know that he is willing and happy to do that.
And please keep in mind that a beautiful home, modern home is built on the lot next to this
property 15 years ago just before my parents moved in. It is definitely an enhancement to the
I I
Item #14
Jessup Construction, L.L.C.
Page 5
neighborhood. So, I'm just requesting that you would give this serious consideration. Thank
you so much.
Janice Anderson: Thank you Ms. Melone.
Donald Horsley: Okay. John Myers.
Janice Anderson: Welcome.
John Myers: Good afternoon. I'm the other homeowner.
Janice Anderson: State your name again please?
John Myers: I'm John Patrick Myers. I totally agree but I feel like this proposal will actually
increase the vismiJ appeal of the neighborhood and the street is definitely going to look a lot
nicer in my opinion. I can definitely back up that these houses, mine in particular. You had a
picture of it earliE:r. That was my house that was up there. The outside and you can't really tell
but in the inside it has no appeal to a modern day home buyer. Just to give you an example, the
master bathroom when I stand in it, I can't stretch my arms out without touching the wall on
each side one way, the other way I can touch it with my finger tips. That is just one of many
examples inside the house. It really doesn't appeal to a modern day family home buyer. We're
looking to get that modern day type house ourselves. An opportunity has been granted basically
to put houses that appeal to a modern buyer in this neighborhood and increase the value of
property on that Sl:reet and in that neighborhood. That is all that I have to say. Are there any
questions?
Janice Anderson: Are there any questions for Mr. Myers? Thank you sir.
Donald Horsley: That is all that's in support. We got one in opposition. Jack Evalt.
Janice Anderson: Welcome ma'am. Please state your name.
Dahl Evalt: Thank you for the opportunity. My name is Dahl Evalt. My husband is Jack Evalt.
I signed both our names down. I'm the neighbor on the other side. My address is 1133
Trantwood Avenue.
Janice Anderson: Can you use that little pointer and show us which side you are on?
Dahl Evalt: I havt: glaucoma so I'm having difficulty seeing some small things. I believe this is
my lot right here (:}ointing to PowerPoint). I bought this land. It was empty land over 15 years
and I drained my life savings buying this dream property thinking that I would have nearly a
two-acre lot to build a family. At that point after I bought, actually I bought it during the time I
was pregnant with my first child looking for a saved spacious peaceful neighborhood. I thought I
found it. And in filct, I did. For the past 15Y2 years, we have enjoyed this home tremendously.
We have been through financial crises up and down and we hung on to this property. We would
II
Item #14
Jessup Construction, L.L.C.
Page 6
not sell because we feel that this is a rare gem that we can't find again in the City of Virginia
Beach, and we love it here. The problem that we have is that if you take a look at the profile of
the overall subdivision, maybe it is true that a lot of the other homes that are in the R-20 and
mixing with R-40 and across the other way, there are some other zoning. However, this
particular issue here, we have to, I believe I would beg of you to focus on the closer look of the
cul-de-sac. If you take a look at the profile of the cul-de-sac, I believe that Mr. Watson has
referred to it that a portion of it is in the R-40, which is at the end ofthe cul-de-sac, the
immediate people that would be impacted by this new development. What is happening is that
right now there are four neighbors, four houses at the end of the cul-de-sac that are truly there
but by knocking the two houses down and adding four in place of two, that would be doubling
the size ofthe traffic ofthe home at the end ofthat cul-de-sac. In terms of the appearance of the
neighborhood, it is nice peaceful, perhaps not modern, modern style that you see in today's new
subdivision but it is not ugly. And it is not unattractive. It is just a very natural setting. The
other side of the street from the subject property that they are trying to rezone, there are elderly
people living there. They have been there longer than I have. And they prefer to have it that
way as well. We have had many discussions about this. I'm all for it and I feel for it that if you
can't sell your home like the neighbors next to me, I understand that they have been trying to sell
the home for the past 1 ~ and they couldn't because they couldn't command the price that they
wanted. So the next obvious thing is to subdivide it, and get it sold. However, I don't believe
that this should be the reason for us changing the zoning in this rare gem neighborhood at at least
this street. On the other hand, I've seem Mr. Jessup's construction. The product that he built I
cannot fault him in any way. I think it is gorgeous. I fell in love with many of his homes.
However, there are so many other areas that he could go too but not here at the end of this cul-
de-sac because it is going to change everything. I built my home 15~ years ago obeying and
abide by the law, by the rules of the City of Virginia Beach, respecting the zoning at R-40. I
didn't ask to change. I didn't ask to subdivide at the time when I bought it I was a real estate
agent and I could have done it but I didn't. I live with it and I accept it, and I wish that the
newcomer would do the same. On top of it, this street on Trantwood it has an above ground
power line. If you could imagine adding more houses on it, it is going to be more poles up there.
The other reason would be that at the end of the cul-de-sac that way it is now, the layout of the
lot, if I may. Look at that? It is almost like a pipe stem lot. The driveway of the neighbors right
now is the existing driveway is power ground to my property. Many nig..hts I have traffic coming
into my driveway thinking they are coming to the neighbors because it is that narrow. If you
look at the frontage, the exposure of the frontage of the property from this lot here to here and
from here to here, it is not that wide. It is not a typical lot. And so we have so many other issues
there already. And lastly, if I may?
Janice Anderson: Weare past your time so if you would just make these comments quickly.
Dahl Evalt: Traffic coming out of Trantwood to Rose Hall, the way to get out of this subdivision
would be coming out of Trantwood to Rose Hall, and get on Great Neck. Great Neck Road
traffic is already horrible. There is no traffic light at Rose Hall and Great Neck. To get in and
out is terrible. To add more homes to it, it would just not do the neighborhood any good in any
way. Thank you very much.
Item #14
Jessup Construction, L.L.c.
Page 7
Janice Anderson: Thank you very much. Are there any questions for Ms. Evalt. Thank you
ma'am.
Donald Horsley: There are no other speakers.
Janice Anderson: Mr. Watson.
Les Watson: Yes ma'am. I understand the comments. I didn't catch the lady's name.
Janice Anderson: Evalt.
Les Watson: Hers is the new house at the end ofthe street compared to the houses that we have.
As I mentioned e:arlier, all four of these are going to be strictly conforming lots if the property is
rezoned. They will all have at 100 foot of frontage. They will all have at least 20,000 square
feet of area, and two of them will be much larger than that. In fact, the one that is adjacent to
Ms. Evalt is going to be a little over % of an acre. So, there is very insubstantial increase at that
end. We're not talking about adding ten houses on this street. We're talking about adding two
houses, two houses and not adding an encroachment of another kind of development. Certainly
not. The total number of houses will be increased by two. We're not talking about an
incompatible development. It abuts R-20 on two sides. The impact will be insignificant and we
have talked to so:ne of the people who live across the street, and who were referred too. We
didn't want to get into a neighborhood dispute but they told us they supported the application but
I can't do any more than represent to you that we spoke to them, and I realize in the nature of
hearsay. We think it's a very insubstantial change to an existing street, and one that will make
the street a lot better than it was when we started. Foster has an incredible history of respecting
the people in the neighborhoods. He was involved in the building of my house 26 years where
we still live and he and Dave McLaughlin, the guys who built my house swept the street before
they went home e:veryday so the next door neighbors wouldn't be required to drive through dust.
That are the kind of guys they are. There is going to be little or no disruption, and he is going to
put a superb product that is better than what is there now, and the lots will strictly be conforming.
Janice A...llderson: Are there any questions for Mr. Watson on this? Okay. Go ahead a.lld open it
up for discussion. Jay?
Jay Bernas: I hat,~ to be so negative today. This is probably going to be the third one where I'm
not going to be in favor of. But when I look at it, like I said, I like the map because to me the
area in yellow really throws caution for me. You approve this it is open season. You look at all
the other lots that you can come in and have conforming lots if you rezone it to R-20. This well
established neighborhood is going to change again. So similar to my arguments on some of the
other applications, here we go again with a change of zoning. That changes the character of an
existing established neighborhood. I concur again with city staff recommendation. And for the
most part, I like the pictures of the houses. They look great. I think, for me. You look across the
street. There is a eouple that look like they can be conforming lots that are R-20. This whole
neighborhood could change. So, I'm not going to be favor of it.
II
Item #14
Jessup Construction, L.L.C.
Page 8
Janice Anderson: Thank you Jay.
David Redmond: I'm kind of put offby Jay's negativity today too. I agree with him. In my
view, I am sure these would be beautiful homes that this company would like to build, and the
ones that we saw were built by this company were beautiful homes. Nonetheless, in my view,
there are too little R-40 involved. And I am just uncomfortable carving any more of it. This is a
very special place, and I'm just uncomfortable carving any more up. They are wonderful lots as
they are. They will still be pretty big lots. No, I don't think the sky would fall if this was to
happen, but nonetheless these R-40 lots are something special. I think we ought to be in business
of maintaining that which is special, so I'm uncomfortable supporting it. I'm going to oppose the
application.
Janice Anderson: Kathy?
Kathy Katsias: I concur being the Lynnhaven representative. There are a lot ofR-40, R-20 lots
in a lot ofthe areas in that vicinity. I live in Alanton. And a lot of the R-40 lots have been sold
as R-40 because the houses, were ofthe 60s caliber, and these beautiful 3,000 or 4,000 square
foot homes. I think if we start carving up these R-40 lots we're setting a precedent. I think the
integrity the way the lots were developed originally should stay the way they are, and therefore,
Will not be supporting the application. No, I am against the application.
Janice Anderson: Thank you Kathy. Are there any other comments? Is there a motion? Go
ahead AI.
Al Henley: My heart goes out to the family whose elderly parents are in this situation but we
have to look at it from a land use perspective. Hopefully, someone will come along, purchase
this property, demolish the two homes, and build two homes that will accommodate today's
society with the children and so forth. I can visualize, like the gentleman says the bathrooms are
very, very small, but if they could just go in and someone would come in and purchase, it would
help the existing family. It could replace about two larger homes. The property has great
amenities, large mature trees on a beautiful view. Another thing I agree with the other
Commissioners is that if we start carving t.lJ.ese well established neighborhoods in these particular
areas demolishing homes, pushing more homes close together, that is not what people like.
People like space. And, I think that is one reason why Trantwood on these particular parcels are
so happy with their lifestyle is because ofthat. For those reasons, I cannot support this
application. Thank you.
Janice Anderson: Thank you AI. Jay?
Jay Bernas: I make a motion to deny the application.
Ronald Ripley: Second.
Janice Anderson: A motion to deny by Jay Bernas and a second by Ron Ripley.
Item #14
Jessup Construction, L.L.C.
Page 9
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 H vote of 11-0, the Board has denied the application of Jessup Construction,
L.L.C.
Janice Anderson: Thank you all for coming. Are there any further matters? Meeting is
adjourned.
"I
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September 1, 2009
To:
City of Virginia Beach Planning Commission
Municipal Center, Building 2, Room 115
2405 Courthouse Drive
Virginia Beach,. VA 23456-9040
Prom:
Constance A. Mix, Rev. Trust VIA 5/13/92
Constance A. Mix and Lewellyn S. Mix, Trustees
. Subject:
Support for rezoning of Lot 25A Prom R-40 to R-20
To the members of the Planning Committee:
Mrs. Mix and I regret that we will be unable to be present for the hearing on September 9th due to a prior
commitment. However, we would like to support the request of Jessup Construction, LLC for the
rezoning of our property.
We have lived at 1129 Trantwood Ave. for the past 14 years and have enjoyed a wann relationship with
our neighbors. Both of us are in our eighties, and because of rapid changes in our health over the past
six months, we can no longer maintain the work load of our 1.2 acres that we love so much. We have
had our home on the market for the past 18 months, yet it has not sold. Mr. Foster Matter has expressed
his desire to purchase the property and build new homes on it, which would require a variance. The main
objections of our neighbors for not approving this variance appear to be the construction noise, increased
machinery and truck traffic, and loss of privacy. We understand these concerns, and have expressed
them to Mr. Matter. While he has no control over the noise of trucks and machinery, he has assured us
that the removal of roadside and waterfront trees will be minimal in order to maintain the privacy and
beauty that we and our neighbors love so much.
In addition to four beautiful new waterfront homes being available to buyers, and increased tax revenue
for the City, this development would generate more needed jobs for the building trade. We believe the
advantages of the zoning change far outweigh the temporary objections. We therefore strongly support
the requested variance.
Thank you for your consideratiop,
{3,;~C-D- Ct.. ~Mc
~J.~
Constance and Lewellyn Mix
1129 Trantwood Ave
Virginia Beach, VA 23454
RECEIVED
SEP 0 3 2009
PLANNING
\ telA tt (Lf
Karen Prochilo
Crom:
dent:
To:
Subject:
Missy Marcus [missy@mmapbs.com]
Wednesday, September 09,200911 :39 AM
Karen Prochilo
City Proposal for Trantwood Avenue, Virginia Beach, VA
Dear Karen,
We have lived on Trantwood Avenue for over 40 years. It has always been a very quiet neighborhood with
mature landscape, many trees and all homes of similar age and style. We would truly hate to lose the charm
and tranquility of the area by having the trees removed and 4 new large homes built at the end of our street.
We very much agree with your statement "The laws of mature trees would impact our waterways, it would
increase the impermeable surface areas and would not maintain the appeal and charm that this neighborhood
holds."
We support your recommendation on the Jessup Construction I Myers & Mix request (Agenda Item 14) and
hope that you will include our e-mail in your packet of information in today's meeting.
Thank you,
M. Bruce and Melissa M. Marcus
1112 Trantwood Avenuo
Virginia Beach, VA 23454
757-481-5980
1
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Karen Prochilo
From:
Sent:
To:
Subject:
Perry Deglandon [pjmdva@cox.net]
Wednesday, September 09,200911 :19 AM
Karen Prochilo
Zoning Request
Hello Karen. I enjoyed speaking with you on the phone today. I would like to make it known
that I support your recommendation on the Jessup Construction/Myers&Mix request (Agenda Item
14) that will be discussed on September 9, 20e9. The wording in your evaluation statement is
valid and exact. Thank you for placing my email in the packet of information that accompanies
the request.
Perry Deglandon
1108 Trantwood Avenue
Virginia Beach, Virginia 23454
481-1496
1
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Karen Prochilo
From:
Sent:
To:
Subject:
CAROL GUY [cmguy1@verizon.net]
Monday, August 31 J 20099:15 AM
Karen Prochilo
zoing variance on trantwood ave.
karen, as I totd you over the phone, I am now doublely opposed to the granting of a variance since it now involves the Mix residence
next door. People buy in this neighborhood for the spacious lots and wooded land. I happily pay a great deal of taxes on my land
across the lake from the myers and Mix homes. They bought in this neighborhood for the very reason of a tranquil setting. I realize
they both want to leave the area and make as much money as possible but it is unfair to grant this variance for the neighbors left
behind with the character of the nieghborhood radically changed.
Carol Guy
1138 five points road
1
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Karen Prochilo
From:
Sent:
To:
Cc:
Subject:
Richard Berube [rpberu@cox.net]
Saturday, August 29,20092:19 PM
Ruth H. Fraser
Karen Prochilo
#14 JessupConstruction Sept 9
RICHARD P BERUBE & DEBORAH A BERUBE
1202 FIVE POI NT RD
VIRGINIA BEACH, VA 23454-1929
August 29,2009
Municipal Center
City Hall, Building #1
2401 Courthouse Drive
Virginia Beach, VA 23456
Re: #14 JESSUP CONSTRUCTION L.L.C.lJOHN P MYERS
Change of Zoning District Classification
As property owners directly across for the parcels being considered for Change of Zoning District
Classification, R-40 Residential District to Conditional R-20 Residential District 1125 and 1129
Trantwood Avenue we wish it be known that we offer no objection to this change.
We strongly recommend this request be approved.
Respectfully,
Isl Richard P Berube
Isl Deborah A Berube
1
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~8/11/2009 08:31
4229981
BLACK DOG GALLERY
PAGE ell
August 10, 2009
City of Virginia Bea(:h
Planning Department
This letter is written in resppnse to The Change of Zoning District Classification, R-40 Residential District
1125 Trantwood Avenue (GIPIN 1498850295), proposed by Jessup Construction LLC/John P. Myers.
In 19B6, my wife and I purctlased our home at 1120 Trantwood Ave. The main draw to this locatiorl
was that is was a quiet stre!et with ample spacing between homes. This was the most important
factor in choosing to purchase this property. We are very much opposed to the rezoning of
the 1125 Trantwood location which is directly across the street. It is our understanding that the
rezoning would allow two houses to be built on the land plot that currently has only one. The current
.house density is ideal, as it provides a "quiet, side street" that is difficult to find in other Virginia Beach
neighborhoods.
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From:
Sent:
To:
Subject:
Karen Prochilo
Tuesday, August 04, 2009 10:29 AM
'baustin@tidewaterpastoral.org'
RE: rezoning
Dr. Austin -
We are in receipt of your email regarding Jessup Construction's request for a Conditional Rezoning. If you have any
questions or additional comments please do not hesitate to email me a the address below.
Sincerely
-Karen f'rodilo
Department of Planning
Municipal Center - Bldg 2
2405 Courthouse Drive
Virginia Beach, Va. 23456
voice 757-385-4298 fax 757-385-5667
kprochil@vbqov.com
From: Bill [mailto:baustin@tidewaterpastoral.org]
Sent: Tuesday, August 04,20098:45 AM
To: Planning Administration
Subject: rezoning
To: Planning Commission
Re: Rezoning Lynnhaven District
I am writing to opposed the rezoning of our neighborhood from R40 to R20. Jessup Construction and John Myers are
petitioning to change the zoning. I am against doing this because we live in a quiet neighborhood with trees and beautiful
flowers which will be destroyed when they tear down Myers' home and built two more on the same lot. This will mean
more traffic and congestion as well as tearing up our yards as they work on the site. Thank you for considering my and
some of our neighbors' opposition to this rezonging.
Dr. William Austin
1124 Trantwood Avenue
Virginia Beach 23454
1
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CITY OF VIRGINIA BEACH
INTER-OFFICE CORRESPONDENCE
In Reply Refer To Our File No. DF-7545
DATE: October 14, 2009
FROM:
Mark D. Stiles ~
EI. Kay WiISO~~
DEPT: City Attorney
TO:
DEPT: City Attorney
RE: Conditional Zoning Application; Jessup Construction, LLC
The above-referenced conditional zoning application is scheduled to be heard by the
City Council on October 27,2009. I have reviewed the subject proffer agreement, dated
August 14, 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
co:. KathleenlHassen
,II
JESSUP CONSTRUCTION, LLC a Virginia limited liability company,
JOHN PATRICK MYERS,-CONST ANCE A. MIX AND LEWELLYN
S. MIX, TRUSTEES OF THE CONSTANCE A. MIX REVOCABLE TRUST
TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS)
CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia
THIS AGREEMENT, is made this 14th day of August, 2009, by and between JOHN
PATRICK MYERS, ("Grantor"), party of the first part, CONSTANCE A. MIX AND
LEWELLYN S. MIX, TRUSTEES OF THE CONSTANCE A. MIX REVOCABLE TRUST,
("Grantor") Parties of the second part, and JESSUP CONSTRUCTION, LLc, a Virginia limited
liability company, ("Grantor"), party of the third part; and THE CITY OF VIRGINIA BEACH, a
municipal corporation of the Commonwealth of Virginia, ("Grantee"), party of the fourth part.
WITNESSETH:
WHEREAS, the party of the first part is the owner of a parcel of real property located in
the Lynnhaven District of the City of Virginia Beach, Virginia, containing approximately .97
acres of land, which is more particularly described in Exhibit "A" attached hereto and
incorporated herein by this reference; and
WHEREAS, the parties of the second part are the owners of real property located in the
Lynnhaven District of the City of Virginia Beach, Virginia, more particularly described in
Exhibit "B" attached hereto and incorporated herein by the reference; and
WHEREAS, the two parcels of real property described respectively as Exhibits A and B
are collectively referred to as the "Property"; and
Prepared By: Wolcott Rivers Gates
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WHEREAS, the party of the third part, the contract purchaser of the Property, has
initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by
petition addres:)ed to the Grantee so as to amend the Zoning Classification applicable to the
Property from an R-40 Residential designation to a Conditional R-20 Residential designation;
and
WHEREAS, the Grantee's policy is to provide only for the orderly development of land
for various purposes through zoning and other land development legislation; and
WHEREAS, the Grantors acknowledges that competing and sometimes incompatible
uses conflict and that in order to permit differing uses on and in the area of the Property and at
the same time to recognize the effects of change, and the need for various types of uses, certain
reasonable conditions governing the use of the Property for the protection of the community that
are not generally applicable to land similarly zoned are needed to cope with the situation to
which Grantors' application gives rise; and
WHEREAS, the Grantors have voluntarily proffered, in writing, in advance of and prior
to the public h(~aring before the Grantee, as part of the proposed modification to the R-20
Residential Designation applicable to the Property in addition to the regulations provided for the
R-20 Zoning Districts by the existing overall Zoning Ordinance, the following reasonable
conditions related to the physical development, operation, and use of the Property are to be
adopted as a part of said amendment to the Zoning Map relative and applicable to the Property,
which conditions have a reasonable relation to the rezoning and the need for which is generated
by the rezoning.
Page 2 of9
II II
NOW, THEREFORE, the Grantors, for themselves, their 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
covenants and agrees that this declaration shall constitute covenants running with the Property,
which shall be binding upon the Property and upon all parties and persons claiming under or
through the Grantors, their successors, personal representatives, assigns, grantee, and other
successors in interest or title:
1. When the Property is developed, in order to achieve a coordinated design and
development on the site consistent with the surrounding neighborhood all lots shall be at least
20,000 square feet in area and of the same basic configuration and dimensions as depicted on the
Subdivision Plan prepared by Bonifant Land Surveys, dated April 30, 2009.
2. All building lots created upon the Property and shall be subject to that certain
DECLARATION OF RESTRICTIONS of record, in the aforesaid Clerk's Office in Deed Book
578 at Page 73 dated February 27, 1954 but omitting any covenant or restriction based upon
race, color, religion, sex, handicap, familial status or national origin.
3. All dwellings constructed on the lots created upon the Property shall adhere to a
50 foot front setback from a public street, a 15 foot side yard setback, contain a two-car garage,
and consist of no less than TWO THOUSAND SEVEN HUNDRED (2,700) square feet of
Page 3 of9
conditioned space or more than FOUR THOUSAND FIVE HUNDRED (4500) square feet of
conditioned spal::e.
4. The exterior surfaces of all dwellings constructed on the lots created upon the
Property shall bi~ not less than 70% brick veneer.
5. To the maximum extent reasonable, Declarant shall preserve existing vegetation along
the front and original side boundaries of the Property.
6. All covenants, restrictions, and conditions relating to the Property and currently in
existence shall remain in full force and effect and remain unaltered by these proffered covenants,
restrictions, and conditions.
7. 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 Grantors and allowed and accepted
by the Grantees 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 sub~;tantially 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
Page 4 of9
'I
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.
Grantors covenant and agree that:
(1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested
with all necessary authority, on behalf of the governing body of the City of Virginia Beach,
Virginia, to administer and enforce the foregoing conditions and restrictions, including the
authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and
(b) to bring legal action or suit to insure compliance with such conditions, including mandatory
or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding;
(2) The failure to meet all conditions and restrictions shall constitute cause to deny
the issuance of any of the required building or occupancy permits as may be appropriate;
(3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these
provisions, 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
Grantors and the Grantee.
Page 5 of9
I '
WITNESS the following signatures and seals:
Jessup Construction, LLC, a Virginia
Limited Liability CO,plpany
1 _ t' ~...:.
By: ~"'~r/t::.y.' ,?~f/~- (SEAL)
Title: Foster J .}<<atter, Manager
"
Jl~
John Patrick Myers, Grantor
(SEAL)
(SEAL)
Constance A. Mix, Tru ee of the Constance
A. Mix Revocable Tru t, Grantor
(%,
COMMONWEA~ Tl:I OF,. V1RGlNIA .
CITY OF I". - -f"''" I' to wlt.
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I, the undersigned, a Notary Public in and for my City and State aforesaid, do hereby
certify that Foster J. Matter, Manager of Jessup Construction, LLC a Virginia Limited Liability
Company, whose name is signed to the foregoing instrument, has acknowledged the same before
me this .:./, day of August, 2009, who is personally know to me or has produced a Drivers
License or some other proper form of identification.
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COMMONWEALTH OF VIRGINIA
CITY OF .~'. <),'. L'(\....:/)'::1'n i~Jo-wit:
I, the undersigned, a Notary Public in and for my City and State aforesaid, do hereby
certify that John Patrick Myers whose name is signed to the foregoing instrument acknowledged
the same before me this _ day of August, 2009, who is personally know to me or has
produced a Drivers License or some other proper form of identification.
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COMMONWEALTH OF VIRGINIA
CITY OF ~}nio..- Bt-tt( h , to-wit:
I, the undersigned, a Notary Public in and for my City and State aforesaid, do hereby
certify that Constance A Mix, Trustee of the Constance A. Mix Revocable Trust whose name is
signed to the foregoing instrument acknowledged the same before me this 17"" day of August,
2009, who is personally know to me or has produced a Drivers License or some other proper
form of identification.
My Commission Expires: 6 '0 'd'"a-o 10
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COMMONWEALTH OF VIRGINIA
CITY OF -1Ll.@; n,'t;.. i3eat:,h, to-wit:
Page 7 of9
My Commission Expires: 03! ~ I/;PI ()
Exhibit "A"
All that certain lot, piece or parcel of land, with the buildings and improvements thereon, lying,
situate and being in the City of Virginia Beach, Virginia, and being known, numbered and
designated as Lot 24 as shown on that certain Plat entitled, "Section 2, TRANTWOOD
SHORES", 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 46, at page 46.
Page 8 of9
,II
Exhibit "B"
All that certain lot, piece or parcel of land, with the buildings and improvements thereon, lying,
situate and being in the City of Virginia Beach, Virginia, and being known, numbered and
designated as Lot 25A as shown on that certain Plat entitled, "Subdivision of Lots 25 and 26,
Section Two, TRANTWOOD SHORES", 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 69, at page 51.
L:W ABEACH\LRW\Jessup Construction, LLClSubdivision-Rose HalllProffer. 073109.doc
Page 9 of9
,II
CITY OF VIRGINIA BEACH
AGENDA ITEM
ITEM: CITY OF VIRGINIA BEACH, Ordinance to Amend Section 201 of the City
Zoning Ordinance Pertaining to Setbacks for Piers.
MEETING DATE: October 27,2009
. Background:
Currently, any portion of a pier over 16 inches in height and above mean low
water, must meet required yard setbacks. Many waterfront properties are zoned
R-40 Residential District which, for example, has a requirement for 20-foot side
yard setback. There are numerous waterfront lots that have a very limited
amount of actual water frontage, and thus, cannot meet such side yard setback
requirements. In other cases, the pier must be shifted closer to a side property
line in order to reach navigable water. Over the last five years, the Board of
Zoning Appeals has been hearing 12 to 30 cases per year for pier setback
variances. Such a high number of variance applications usually indicates that
there is a problem with the Zoning Ordinance. State Code indicates that where a
situation of the property is recurring in nature, variances should not be granted
and that a Zoning Ordinance amendment should be considered. This proposed
amendment to Section 201 of the Zoning Ordinance responds to the recurring
nature of setback variances for piers.
The City Council deferred this item for 60 days on August 25.
. Considerations:
The amendment allows piers to extend into required yards under certain
circumstances. Specifically, the amendments will allow an uncovered pier, no
more than four (4) feet in width, to extend into a required rear or side yard
setback if necessary to access navigable water. Where this relaxation of the
normal yard setback occurs, the pier cannot have any structures attached to it
except for uncovered boat lifts. By not allowing covered boat lifts, covered docks,
or other structures, the impact on adjacent properties is reduced.
There was opposition to the proposed amendment.
. Recommendations:
The Planning Commission, by a vote of 11-0, recommends approval to the City
Council.
CITY OF VIRGINIA BEACH - SETBACKS FOR PIERS
Page 2 of 2
. Attachments:
Staff Review and Ordinance
Plannin~1 Commission Minutes
Recommendedl Action: Staff recommends approval. Planning Commission recommends
approval.
Submitting Department/Agency: Planning Department
CltyManager;C~\ k. ,~o-nt..
,II
14
July 8,2009 Public Hearing
CITY OF VIRGINIA BEACH
ZONING ORDINANCE AMENDMENT
(SETBACKS FOR PIERS)
REQUEST:
An Ordinance to amend Section 201 of the City Zoning Ordinance Pertaining to Setbacks for Piers. This
amendment was deferred by the Planning Commission on May 13, 2009 to allow the staff time to address
opposition. The amendment has been redrafted and is summarized below.
SUMMARY OF AMENDMENT
Currently, any portion of a pier over 16 inches in height and
above mean low water, must meet required yard setbacks. Many waterfront properties are zoned R-40
Residential District which, for example, has a requirement for 20-foot side yard setback. There are
numerous waterfront lots that have a very limited amount of actual water frontage, and thus, cannot meet
such side yard setback requirements. In other cases, the pier must be shifted closer to a side property
line in order to reach navigable water. Over the last five years, the Board of Zoning Appeals has been
hearing 12 to 30 cases per year for pier setback variances. Such a high number of variance applications
usually indicates that there is a problem with the Zoning Ordinance. State Code indicates that where a
situation of the property is recurring in nature, variances should not be granted and that a Zoning
Ordinance amendment should be considered. This proposed amendment to Section 201 of the Zoning
Ordinance responds to the recurring nature of setback variances for piers.
The amendment allows piers to extend into required yards under certain circumstances. Specifically, the
amendments will allow an uncovered pier, no more than four (4) feet in width, to extend into a required
rear or side yard setback if necessary to access navigable water. Where this relaxation of the normal yard
setback occurs, the pier cannot have any structures attached to it except for uncovered boat lifts. By not
allowing covered boat lifts, covered docks, or other structures, the impact on adjacent properties is
reduced.
RECOMMENDATION
Staff recommends approval of the proposed amendments.
CITY OF VIRGINIA BEACH - PliRS
Agenda Item 14
Page 1
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AN ORDINANCE TO AMEND SECTION 201
OF THE CITY ZONING ORDINANCE,
PERTAINING TO SETBACKS FOR PIERS
Section Amended: City Zoning Ordinance ~ 201
WHEREAS, the public necessity, convenience, general welfare and good zoning
practice so require;
BE IT OHDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA
BEACH, VIRGII\JIA:
That Section 201 of the City Zoning Ordinance is hereby amended and
reordained to reiad as follows:
Sec. 201. Yardls.
(a) General. All required yards shall be unobstructed by any structure or other
improvement which exceeds sixteen (16) inches in height as measured from
ground elevation; provided, however, the following improvements may be located
in a yard:
(8) Uncovered piers no more than four (4) feet in width may extend into
ret]uired side or rear yards if necessary to access navigable water.
QIPvided that no structures. except for uncovered boat lifts. shall be
~rmitted on any portion of the pier.
COMMENT
These amendments will allow piers to be located in a required yard when necessary to
access navigable water. Under such circumstances, only uncovered boat lifts are allowed on the
pier.
AdoptedJY the Council of the City of Virginia Beach, Virginia, on the
,2009.
day
of
APPROV D AS TO CONTENT:
~ '
A~~a;T;~;AVWNCY:
City Attorney's Office
Planni
CA 1103
R-S
May 15, 2009
dl
Item #14
City of Virginia Beach
An Ordinance to Amend Section 201 of the City Zoning
Ordinance pertaining to setbacks for piers.
July 8, 2009
REGULAR
Donald Horsley: The next matter is item 14, the City of Virginia Beach. It's an
ordinance to amend Section 201 of the City Zoning Ordinance pertaining setbacks for
pIers.
Janice Anderson: Karen, are you going to introduce it?
Karen Lasley: Do you want me to introduce it.
Janice Anderson: Yes.
Karen Lasley: Or just wait and answer questions? Item 14 is an amendment pertaining
to setbacks for piers. Any portion of a pier over 16 inches in height up until it gets to
mean low water has to meet the side yard setbacks. This property is an example. It is
zoned R-40, so the side yard setbacks are 20 feet. Where did it go? You can't see it as
well in here. This lot has a stem out to the water (pointing to PowerPoint). It is 30 feet
wide. There is no way to get a pier out there and meet the setback of 20' and 20', when
they only got 30 feet. This amendment is before you today because at the Board of
Zoning Appeals they hear 12 to 15, up to 31 one year, cases where piers can't meet the
setbacks. When you have a high number of variances being requested that is an indication
there is something wrong with the zoning ordinance. The State Code says if a variance is
recurring in nature, the Board of Zoning Appeals is not supposed to be dealing with that.
You need to amend your Zoning Ordinance. So, the amendment before you today allows
piers in setbacks under circumstances where the pier can only have a maximum width of
4 feet. It must be necessary to invade those setbacks to get to navigable water. No
structures can be built on the piers. You can have a boatlift and that is it. The boatlift
can't be covered. It can't have a gazebo out there. No other structures, just an uncovered
boatlift. I think that is a pretty good summary. Do you have any other questions of me
before you hear the speakers?
Janice Anderson: Are there any questions of Karen right now? Jay.
Jay Bernas: You said that BZA hears many of them a year. Are 100 percent of them
approved or what cases are not approved? Is it like 99 percent approval?
Karen Lasley: I would say 99 is probably good. I know there is one that I know they had
denied that one ended up in court, as a matter of fact. Most of them are approved.
Absolutely.
Jay Bernas: Okay.
Janice Anderson: Thank you Karen.
I ,
Item #14
City of Virginia Beach
Page 2
Karen Lasley: Okay. Thank you.
Donald Horsley: Our first speaker in support is Mr. Bourdon.
Eddie Bourdon: Can I pass these out?
Janice Anderson: Sure. You can give them to Henry.
Eddie Bourdon: I'm passing out a state code section, which I will review in a second.
For the record, my name is Eddie Bourdon, a Virginia Beach attorney. I've been
practicing land use law predominately in this city for about 25 years. And, I want to give,
first of all kudos to Bill Macali, Kay Wilson, and Karen Lasley for putting this revision,
this Section 201 before the Planning Commission and Council. Eventually, and this is
long overdue in my view, and absolutely necessary revision to Section 201 of our Zoning
Ordinance. The City adopted its first zoning ordinance 56 years ago and our current
zoning ordinance 35 years ago. And I am 100 percent certain that, although I wasn't here
56 years ago, that no one ever contemplated or considered in 1956 or 1973 that the
building setbacks contained in our Zoning Ordinance for homes on residential zoned lots,
that is front yard, side yard, and rear yard setbacks for homes would be used decades later
to try to prohibit property owners with riparian rights, that is waterfront property owners
from having a private boat pier. Let me note for a second that the side yard setbacks, and
that is predominately what we're dealing with, vary within the different zoning
categories. It differs in residential zoning categories from 5 foot side yard setbacks in R-
5S zoning, :~hadowlawn, waterfront lots, to 8 feet in the R-5R, R-5D waterfront
properties that exist in different neighborhoods of the city to 10 feet, to 15 feet all the
way to 20 [clot side yard setbacks in the R-40 zoning district. That is for houses.
Unfortunatdy, what is occurring and what is taken place in recent years is that petty
disputes between neighbors, jealousy between neighbors and power plays have crept into
our ever expanding regulatory process, which has gotten much, much out of hand. Way
out of hand. The variance process through the BZA is an appropriate process for what is
a by-right me of waterfront riparian properties. I've given you Section 62.1-164 of the
State Code, state law which clearly states that every riparian property owner has the right
to a private boat pier. Now VMRc and the Army Corp. of Engineers involved in this
process both water access issues are all taken care of through them. The City's only
jurisdiction arguably is in the intertidal zone between the mean high water line and the
mean low water line. Because of certain properties, your mean high line is up at the bulk
head and your mean low water line is further out. You have this intertidal area that
sometimes has marsh and sometimes has mud flat, and that is the only area that the City
has jurisdiction. And, because we have Wetlands regulations today that we didn't have
many years ago, you can't have a floating dock in that area because the Wetlands
regulations want you to have the dock four feet above that either marsh or mudflat. So,
you can't build in 16 inches. You can't let it float. You have to have it four feet above
the mud flat or the marsh. It is in that area that exists on some properties that the City has
jurisdiction to apply a building setback for a house, and it is just reeks havoc on the
people who are in this position to have to deal with that issue. Staffvery appropriately
and correctl:y has recommended to you the minimum type of dock. No covers. No
gazebos, just a dock. That would be applicable in those instances. Where you have no
II II
Item #14
City of Virginia Beach
Page 3
choice but to put a dock within, what is now interpreted to be an applicable setback.
Now, philosophically from a regulatory perspective on docks, why would it be okay in
Shadowlawn with a 50 foot wide water frontage to build a pier. Mean high, mean low,
going over Wetlands or have you, five feet from the side property line, by-right, yet in
Alanton you can have a lot with 40 feet of water frontage and you got to go to the BZA
because your 20 feet in the middle. You got no ability to build a pier without a variance if
you got that intertidal zone behind your property. So, you have to hire an attorney, hire
an engineer, go through a process. You may wind up having your neighbors oppose you.
You take them court. You could be spending years in court and tens of thousands of
dollars which has unfortunately happened, to be able to serve your legal right to put a pier
up for a boat for your house. Now, again, if you have a situation in the same scenario 40
feet on the water but let's say you're in Great Neck Point and you have a bulk head, you
have high water on low water is on your bulk head. There is no mudflat. Then this
doesn't apply at all. You can build the pier on the property line because there is no area.
When you leave the ground at the bulk head, you're not going 16 inches above any grade.
Once you go out, if there is no mudflat underneath or any wetlands underneath you, the
City has no jurisdiction at all. So, this whole process is so crazy to have gotten to where
it has gotten. But what is before you today is absolutely appropriate means by which to
provide minimum relief to those people who are in a position that they, again through
interpretation, are supposedly in a setback applicable, originally to homes. No mention
of piers. It's a great change. It is long overdue. Please recommend approval to City
Council of this change. I'll be happy to answer any questions that any of you may have.
Janice Anderson: Are there any questions? Thank you.
Eddie Bourdon: Thank you.
Donald Horsley: The next speaker in support is Carl Eason, Esquire.
Carl Eason: Good afternoon.
Janice Anderson: Welcome.
Carl Eason: My name is Carl Eason. I always enjoy following Eddie. We spoke before
and I share 100 percent everything that he has said. I've been practicing for about 30
years, and I have seen homeowners end up in court. I represent homeowners currently in
court over this kind of very thing. I do have a little bit of a twist on it, and I ask that you
consider this however, and that is if that people come and there is a statutory exemption
because they can't meet that side yard setback, one of the things that I think you need to
consider is what is the jurisdiction? And by way of preamble, merely getting a variance
doesn't give you a right to a pier. We all have to apply what is called a 404 Permit
Application process, and that is trifle. We have to come to the City. We have to go to
VMRC, and remember VMRC is the agency appointed by the State to regulate the State
owned bottom land. State owned bottom land is typical that, which is channel ward, it
doesn't mean the water line. Then we have the Corp. of Engineers. The Corp comes in
and exercises, under the Clean Water Act, issues over navigational concerns, placing of
boat docks, that kind of thing. Merely allowing a variance to allow a pier to be
Item #14
City of Virginia Beach
Page 4
constructed is a positive thing long overdue in this case. I personally believe, however,
that to go further and to say we will allow it conditioned upon four feet in width. I think
maybe VMRC may even allow us to go six feet in width. No covered structure for a
boathouse etc. is going to put you potentially in conflict with the exercise of jurisdiction
by VMRC. And, I think candidly, that it puts you in an awkward position of trying to
exercise jurisdiction over State regulated bottom lands when we look at 28.2, and it says
VMRC will tell you. Now, adjacent homeowner is going to come up here and say that
this is the most horrible thing. Mr. Eason is wrong. You have to limit it. Don't allow
covered stlUctures and gazebos, etc., allowing this exception is not the code of last resort.
They may appear and file an objection before the Corp. of engineers. They may appear
and file an objection with the VMRC and VMRC will have a hearing if objections are
filed relative to boathouses and covered structures, etc. I got one case right now where
somebody came in. It is not my client. It was a predecessor in title. So, off we go back
in title. And a variance was granted by BZA. And certain conditions were imposed.
Well you know what? If you do real estate practices and you go do a title search or you
have a title company typically do it these days do a title search, and nobody in the
standard care in the industry is going to go and find out, when did BZA grant this
variance, and what conditions were attached? The City has been around for 56 years.
The Planning Commission and BZA have been around that long, and so is there a place
where I can go and check that out? No its' not. You think attorneys when they do real
estate closings go check each and every BZA hearing to see if it affected that lot? No,
they don't. So, I urge you first of all if we're going to allow this, index them somehow by
a GPIIN number so we can find them in the future. But secondly, but exercise your
jurisdiction only on Terra Ferma. And that means when you get to the mean low water
line, then that is the end of your jurisdiction. And the Corp. of Engineer and the VMRC
can regulate thereafter. And that is not to say that the adjacent owner still don't have the
rights and he protections that are afforded them. But let me tell you something. Mr.
Macali, Kay Wilson and Karen Lasley bringing this proposal, Eddie is right. It is long,
long overdue. It creates a discordinate results among citizens, depending upon where
they happen to live and what neighborhoods the zoning may be. And, it really sort of
defines the states statue that says as a riparian owner, I have a statutory right, not a
privilege, a statutory right to exercise access to navigable water. So, I think what you
need to do is the ordinance is good. I think the amendment, and the exemption needs to
go through. I would urge however, to worry about where the placement of that pier
occurs at thl~ mean low water line. Let somebody else worry about what occurs
thereafter. One query that you might in making that analysis stop and think. What if I
have a client who may have an old variance that was granted 20 years and now you pass
this exemptj.on? Do those conditions still exist or not? I would respectfully submit not.
Now let's look at the cynical person who comes in and says, how, I got a lot and I don't
have 20 feet on this side and 20 feet on this side because I live in Alanton. I'm going to
take advantage of this exception. He builds a structure out there and all of a sudden a
covered four feet wide etc complies. A month later he comes back. I want a covered
structure. H~ makes an application to VMRC. Is he going to be right back in front of
BZA? If that is the way it's going to occur, then changing this would have done nothing.
Thank you.
Janice Anderson: Are there any question of Mr. Eason?
I I
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Carl Eason: And I do support it just in case it didn't sound like it. I do support it.
Janice Anderson: I think what the purpose is and that I understand they were trying to
get a right for property owners to build a pier. And anything that might be considered too
decorative a pier, they would have to come to BZA.
Carl Eason: Once they touch that mean low water, I think I have a state statutory right to
have that pier and VMRC will tell me because it is state owned bottom of upon which
I'm building, and I think they have right to regulate that. That's the only twist that I
have on the proposal.
Janice Anderson: But you wouldn't be unhappy if we passed it as it is?
Carl Eason: I would be much happier would be the proper way of saying it. If you
would exercise jurisdiction only on the land, meaning landward of mean low water.
Janice Anderson: Okay. Thank you. Are there any other questions?
Carl Eason: Thank you so much.
Donald Horsley: Our next speaker in opposition is Dr. Steve Taubman.
Janice Anderson: Welcome doctor.
Steve Taubman: Thank you. My name is Steve Taubman and I live on the Eastern
Branch of the Lynnhaven. I'm not a lawyer. I hate following the two guys in the front of
me. I'm a foot doctor so I will do the best that I can. There are certain things that were
just said that I want to point out. My main question is why is this ordinance even here?
Karen Lasley just said and you all heard that 99 percent of variance requests for piers are
approved. People are getting their variances. So, why do we need to change an ordinance
if the system is already working? You notice that the two previous speakers are
attorneys. They are not here on their own behalf. They represent clients. I assume that is
how they make their living. My theory is that some of these clients, and I know my
neighbor next door because I'm, currently involved in a lawsuit already has a variance.
And with that variance he has a pier. The pier has been there for 15 years. The problem
is that he wants to expand his pier. So, don't think that I'm trying to deny or say
something that they shouldn't have water access. They should have access, and that is
what the BZA does. The problem with the proposed ordinance is that it takes previous
variances and expands their ability to expand their pier, which has already been denied by
the BZA. In my own situation, my neighbor next door. There have been three neighbors.
Two ofthem have been before the BZA. They were granted an initial variance. They
have a pier that works very nicely. I have a picture of it if you would like to see it? It
works fine. But they want to expand it. And they want to add a floating dock and they
want to add a roof. They want to add everything that they can. I object to it because I live
right on the property line. It is directly view of the Lesner Bridge for me. We built our
house before this other house was built and we took advantage of the view. And this will
directly affect our view. So, they have lost before the BZA on two separate occasions.
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And now if you pass this ordinance, the whole ruling of the BZA goes away. They get
what they wanted in the first place. That to me is not the purpose of bringing an
ordinance. So people are getting their variance. Every situation is different. If you look
at the Lynnhaven and you all know, there is not a straight line on it. The shoreline turns
and twists. It goes into a cove. It goes out of a cove. Every pier comes at a right angle or
this angle. They cross. Every single one is individual. Every single one requires
individual attention from a body, such as the BZA. To make a blanket statement like the
attorneys would like you to do, and say here is an ordinance. Anybody can do it. It
totally relinquishes any rights of the adjacent property owner. I don't even have anybody
to stand before and argue if you decide he wants to expand his pier further than it is. So,
the whole concept is so one sided towards the people who require who have less than the
required setback now, and totally ignores the rights of the adjacent property owner. So, I
don't even have anybody to argue to anymore. You take away that right if you pass this
ordinance. On top of that, as Mr. Eason just pointed out, if you pass this ordinance and
you say to him only four feet wide and no roof, he can still come back to the BZA and
ask for more. So, what is going to be accomplished by passing this ordinance? You
know the Virginia Beach Waterfront is built. There is not a single waterfront property
subdivision that I'm aware of that is being developed right now. 95 percent of the piers
have alread y been built. Deals have already been made through the BZA. Sometimes if
they needed their assistance, and everybody is happy. To my knowledge there are two
problems in this entire city right now. I'm one of them with Board of Zoning Appeals
and piers. Everybody else is happy. If you pass this ordinance people who have already
made their deals ten twenty years ago with the BZA, this is what could be built. My
neighbor is fine and I'm okay with it. All of a sudden he is going to wake up one
morning and see construction out there and their changing what he already agreed too.
What does he do? He can't even go back to the Board of Zoning Appeals and say what
did you do? You made a deal? What happened to the deal we made? So, the adjacent
property owner is totally left out in the dark. He has nothing to say. And, to my mind this
does more t.arm than good. In my situation, we're in a lawsuit over riparian rights. This
is all stemmed by his lack of ability to expanding his pier, not about getting a pier. He
already has a pier but the lack of ability to expand a pier by BZA. If you pass this
ordinance h~ could do whatever he wants. He could build whatever he wanted that was
turned down by the BZA. Mr. Eason spoke about the VMRC taking regulated bottom
mean low water. If you read the VMRC and I think the city attorney has already read the
VMRC regt.:.lations, the VMRC gives the right to local ordinance to predominate to what
is built beyond mean low water. I don't have the code number but the City Attorney's do
have that code number. I can get it for you if you like? The way this ordinance is written
it says four feet wide and no roof structures. The way it is written now there is nothing to
stop somebcdy from saying oaky, four feet wide no roof but I I can build a "L" at the end
of my pier or I can build a "T" at the end of my pier or I'm going to put a float at the end
of my pier. That is not addressed. Just as Mr. Eason pointed out, if you don't address
every possible alternation of the pier the VMRC regulations will predominate and even
though it says four feet wide and no pier, they can still put a "L" at the end, which goes
beyond the setback. They could put a "T" at the end. They could put a floating dock at
the end. The way this is written today, the way this ordinance is written today is
incomplete because it does not cover the possibility. The VMRC regulations would
predominate unless the ordinance specifically states no "L" or "T" four feet wide, only
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Item #14
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long enough to access water and that is it. Put a lip at the end. Not on the right and not
on the left. So, I think this has the potential to do a lot more harm than good. I think it
will produce a lot of business for lawyers. I think there is going to be a lot oflawsuits
filed over this, and the reason why there are not a lot more people here now is because no
one knows what is happening. I asked the Planning staff why aren't people being told
that this ordinance is out there? It's the waterfront property owners who it is going to
affect. The answer is we send notice to civic leagues. Well, I have a civic league and I
never heard a word. My civic league hasn't met in ten years. So, that is the way it is in
this city. If you put an ad in the paper and you advertise that you're doing this, who reads
this little print in the paper? People aren't here because people don't know about it.
People are going to find out about it and nobody is going to be happy about it except for
the two individuals that I know that are represented by attorneys who want to promote
this ordinance. I obviously hope you will not approve this thing. What I must point out
is that every single situation on the water is different because the coastline is different. It
turns and twists. Every pier. If you're in a cove like this and everybody has 30 feet,
everybody has the same and sure everybody wants to cooperate with each other.
Everybody wants a pier and I don't deny that. But do you really need to put the pier right
in front of where I am going to live? Do you need to put the pier ifI'm going this way
and you're going that way we can intercept, isn't it better to take each individual situation
and set of circumstances before a board, such as the BZA, who has done a good job. You
know there was one lawsuit filed against the BZA, and that has been mitigated by the
recent state legislation passed on July I, 2009 that gives the BZA the right to grant
variances. No one is denying them the right to do variances. Why is this ordinance here?
My feeling is that it is here because certain individuals in the city cannot get what they
want through the BZA and the only way they are going to get it is to pass this ordinance.
It is going to help two people and everybody else is going to be left out in the cold
because we have no place to argue now for the case.
Janice Anderson: Are there any questions for Dr. Taubman? Thank you sir.
Steve Taubman: Thank you very much.
Donald Horsley: The next speaker in opposition is the representative of Pender and
Coward.
Jay Dale Bimson: Good afternoon Madame Chairman.
Janice Anderson: Welcome Mr. Benson.
Jay Dale Bimson: We do want to call your attention to this plat that we have.
Ed Weeden: State your name for the record
Jay Dale Bimson: My name is Jay Dale Bimson. I am of counsel to Pender and Coward.
Number one, I would like to say that I do represent Capt. and Mrs. RJ. Kerrigan, who are
in the audience with us here today. And I would ask them to stand. Number one to be
recognized and also to take a break from sitting down for a long time. I also would like
Item #14
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to pass out an email from another resident in the area, Mr. Gardner and he states his
position vc;:ry well in the email.I.llmakethatavailabletoyou.Andthirdly.this chart
which my associate here will pass around, Mr. Holcomb, to indicate the Pandora's box
that may b(~ opened up if this ordinance concerning the BZA is done away with. My
clients are opposed to this zoning amendment that allows a pier to be built as a matter of
right without them obtaining a variance from the BZA. As was the previous city policy,
and we submit it was good then and it should be good now. It is our position that
allowing al> a matter of right that the party has no requirement to show a hardship exists,
would not he a good situation. A recent decision by the Circuit Court, Gardner v. BZA,
and Mr. Gadner in that letter was a party to this action, and the applicant was Kim Chun.
In the letter of opinion dated November 20, Judge O'Brian cites a principal that the
Supreme Court recently affirmed that variances are not to be routinely granted. A
variance may only be granted when application of the zoning ordinance interferes with all
reasonable beneficiary uses of the property taken as a whole. These property owners do
have a use on the property. I would submit for the reason set forth in Judge O'Brian's
opinion, and I'll be glad to make those available to you, if you so desire, that the
proposed ordinance fails to meet the requirement of good zoning legislation. It has been
good in the past and it still serves a purpose here today. As set forth in Judge O'Brian's
opinion, at least five other lots of similar shape in the neighborhood of this category, and
I'll ask Mr. Holcomb if he will point those out to you to speed it up as much as possible.
Mr. Holcomb: This picture just depicts and he wouldn't know unless you knew what to
look for. Sort of the wild shape of these flag shaped lots in this particular neighborhood.
These lots up here are connected to the water. I don't know if it's navigable or not but
some of them are several hundred feet long, flag shaped lots. This one here and then
here. This one is really off. This one might be 1000 feet long. So, this was a small
flagged shaped lot. To allow a pier as a matter of right, that is a lot of pier. That is a lot
of people h(:re that are directly affected by that action. That is something to observe.
Thank you.
Jay Dale Bimson: If you like Madame Chairman, I'll give a moment for that to be passed
around if you so desire before I continue.
Janice Anderson; You can go ahead and continue and let them look at it.
Jay Dale Bimson: Ladies and gentlemen of the Planning Commission, I would submit to
you that it i~ bad legislation the proposal they have submitted to you today in the form of
this ordinanee. And submitted on that plat it will open up Pandora's box oflitigation
among property owners that are on the water and want to construct piers. For our clients
and for othe:~ residents in the area who are not here, the five that I mentioned, we ask that
you forward your recommendation to the City Council for denial of this ordinance. I'll
be glad to respond to any questions that you may have.
Janice Anderson: Are there any questions for Mr. Bimson? Yes.
Ronald Ripley: Just a question. On Judge O'Brian's ruling, is there a change to that in
the General Assembly just recently?
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Item #14
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Jay Dale Bimson: I believe they did make a change. I'm not sure of the wording and it
had something to do with the hardship involved and maybe Mr. Bourdon could address it
more clearly but there has been some change. It says hardship amounts to confiscation of
the property. And I believe that was changed but I'm sure Mr. Bourdon can address it
more clearly.
Bill Macali: Let me address this. I do work for the city.
Janice Anderson: I was going to get Kay to do it but since you volunteered, there you go.
Bill Macali: I'll have some other responses to some of the things that have been said but
the General Assembly passed an amendment to the statute which deleted language saying
that the variance had to be based upon a "hardship approaching confiscation". The words
"approach confiscation" were deleted. That is all that happened. This ordinance really
truly wasn't brought forward as a result of any kind of change in the General Assembly
or court case or anything like that or for any reason other than what Ms. Lasley stated to
you. I can truly guarantee that. It has nothing to do with two people who didn't get their
way or something like that as has been said. It was just because of what she said. Now,
somebody is making an issue of the General Assembly legislation. The law under the old
code, which required a hardship approaching confiscation, was that if someone had a
reasonable use of his or her property, a variance was inappropriate. Having a single
family house on the water, etc, is pretty much a reasonable use of the property, and the
court applying the law strictly would be constrained to find that there is no right to a pier
at all. The General Assembly deleting the words "approaching confiscation" has added
some kind of question as to what the ordinance does mean now since a hardship doesn't
have to "approach confiscation", what is the standard? That is why this is such a red
herring. It really has nothing whatsoever to do with the reason why we're bringing
forward this particular amendment. The General Assembly actually raises as many
questions as it answers to be quite honest with you And it really should not play any part
in the Commission's deliberations in this matter. There is, as Mr. Bourdon pointed out
and the staff has been well aware of since this started being thrown around in terms of an
idea, there is a statutory and a common law right for a riparian owner to what is called a
"warf out" for having a pier that goes to navigable water so long as it doesn't interfere
with anyone else's rights, so I'm not sure if! answered the question. It is not a question
that really should be answered because frankly, the General Assembly legislation and the
BZA interplay really is not the reason at all this was brought forward.
Jay Dale Bimson; I don't think we disagree.
Janice Anderson: Okay. Mr. Bimson with that picture, he showed these long strips of
land that go out and the property is actually on the road and you have these long strips of
land that come out to the water. I guess their concern is that they could actually build a
pier from the land all the way out.
Bill Macali: That is the main thing that I really need dispelled.
Janice Anderson: Okay.
Item #14
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Bill Macali: this ordinance does not give anybody the right to build a pier. It simply
does not matter what anyone else will tell you. The Virginia Marine Resources
Commission has to be the people to give you the right to build the pier. The City has
absolutely no right to say you can build a pier into the submerged lands, as they call it,
the area seaward of mean low water. Only VMRC can do that. The only thing that this
ordinance does is say that, assuming that you can get VMRC's permission, and assuming
that your pier does not interfere with anybody else's rights, and that's something that
VMRC can decide, and that a court can decide if you have no other place on your
property that you can get out to the navigable waters and still meet the setbacks, you can
build your pier four feet wide within the setback. But you can't have any kind of structure
other than an uncovered boat lift. The VMRC does have jurisdiction over the area
seaward of mean low water, but as Dr. Taubman pointed out, the City, according the
statute that controls VMRC's action, has the right to determine what structure, if any can
go on that pier. Ms. Wilson will be happy to read you the actual VMRC Guidelines for
that and there is really no issue about that. This ordinance does not allow anyone to build
a pier who (:ould not build a pier. The VMRC retains complete jurisdiction over that.
The only thmg this does is allow people who can get their permit from VMRC to have
the pier itself, no greater than four feet wide and with nothing else but an uncovered
boatlift within the setback. If they have the room and they can meet the setbacks this
ordinance simply does not apply.
Janice And~:rson: Mr. Bimson, you want the local government.
Jay Dale Binson: Yes, because the setback is still a factor. And they are constructed in
the setback, that is why it now goes to the BZA.
Janice Andf:rson: Okay. Are there any other questions?
Al Henley: I do.
Janice Anderson: Yes.
Al Henley: The area that your associate pointed out earlier looks like over a 1000 lineal
footage. It appears to be on an easement or a 25-foot stem assuming what the scale is, is
that easement or right-of-way or whatever that is, is that navigable or is there water
access to get to the main body of water?
Jay Dale Bimson: I think I can get it right. There was an application made for dredging
there. The dredging was withdrawn so it is now tidal water, and that even complicates
the problem more because you have to go out with the tide and come back with the tide.
Al Henley: So, it is accessible but it is limited as to the craft that you use?
Jay Dale Benson: No. It's limited to the time of day that you can take that craft out there.
Janice Anderson: There is water there or not.
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Item #14
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Jay Dale Benson: Right.
Al Henley: I have a question B and it would be to Bill Macali. On this State code 62.1-
164 where it says that any person owning land upon a water course may erect a private
moor or pier. Can you explain that because the way I understood you Bill earlier is that
you said if you own waterfront property you do not have the right to build a pier?
Bill Macali: Yes. You do have the right to build a pier but when you build it on what are
called "new coast submerged lands", which is lands seaward of mean low water, you
need VMRC's permission. That is it in a nutshell. I guess you can build a pier up to
submerged lands without VMRC. That means you won't be able to get your boat in most
of the time or part of the time but you do have the statutory right as you mentioned to
build a pier to reach the water. It is just that you need VMRC' s permission and VMRC
has also said that if a locality wants it can restrict the structures which go on that pier. So,
that is what we are doing. Saying that a plain old boat lift is about all you can build out
there. And the reason we did this is because we were certainly mindful of not wanting to
have people have free reign to build huge boathouses and really some of the concerns that
have been expressed to you were not lost, but we don't feel that it is inappropriate to
allow an uncovered boat lift on a pier. And again, you do need VMRC's permission for
the pier to begin with so it is not like you're opening Pandora's box or allowing an
unlimited number of piers or anything close to that.
Al Henley: Thank you for explaining because I was questioning you. You cleared that up
Bill Macali: I hope it was adequate.
Al Heruey: Thank you Bill.
Janice Anderson: Ron, do you have a question?
Ronald Ripley: I have a question of Bill also.
Janice Anderson: Are there anymore questions of Mr. Bimson? Thank you sir.
Ronald Ripley: Bill, in the process of the filing for a pier, there is an application, survey,
there is notice to all the neighbors. VMRC meets and decides the merits of the request.
Bill Macali: Right.
Ronald Ripley: And that is the public process.
Bill Macali: Right. The adjacent property owners are notified'. And if one objects VMRC
will have a hearing on it.
Ronald Ripley: So the public is not denied any rights by virtue of this ordinance?
Bill Macali: They don't give notice to everybody in the city but they do give the notice
to adjacent property owners.
Item #14
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Ronald Ripley: Surrounding property owners?
Bill Macah: Right. Yes sir.
Ronald Ripley: Thank you.
Janice Anderson: Yes.
David Redmond: I have another question for Bill. Mr. Macali, we're learning a lot all at
once so bear with me. What about the scenario that Dr. Taubman illustrated. Now
suppose this passes to build a pier within the setback, then later on you go to the BZA
and try to build the very structures that we're trying to restrict at a later date? Is that
possible?
Bill Macali: Yes. Nothing says that someone cannot ask the BZA for a greater setback or
a larger pier, but VMRC are the folks that decide what's built on the pier. The Board is
not going to be able to let someone build a structure other than a boathouse on the pier
because that's not something that the BZA, we feel, have jurisdiction of, only the
setbacks. We say you can't have anything but an open, and I said boat house I mean
boatlift, the Board cannot grant a use variance to that anymore than it can say you can
have a sing le family dwelling on a business zoned lot or something like that. If you have
a variance that exists now 20 years ago, you can, if you want. Let me back up a little bit.
If your variance is to allow your pier in a setback, you can get rid of that pier and build a
pier in the ~etback under this ordinance but for the fact that since you already have a pier
you really don't need the new pier to be built because again, this ordinance says it is only
when you cannot get out to the navigable water any other way that you're entitled to go
under this crdinance. If you already have a pier by a prior variance then obviously you
don't need 1:0 go under this ordinance to get out to the water because you are already out
to the water.
David Redmond: I understood that this morning. And I appreciate that. So, when you
say if you can't do it any other way, you can't do without going into the setbacks, you say
that is what the ordinance says. I really don't read that. What I read is the two words "if
necessary". Are those the two words that you say, say that? Is that what you mean?
Bill Macali: Yes.
David Redmond: Okay.
Bill Macali: It means if there is no other place that you can get to navigable water from.
David Redmond: Okay. Thank you.
Janice And(:rson: I think we have one more speaker.
Donald Horsley: We have one more speaker. Robert Kerrigan.
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Item #14
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Janice Anderson: You thought we forgot you didn't you?
Robert Kerrigan: My name is Robert Kerrigan. I'm retired Navy Captain. I have lived
here for 32 years. I have lived in my current house for about 11 years. My neighbor
wanted to build a pier and he was granted a variance, which was appealed. He went
ahead and built the pier and the boathouse while the variance was under appeal. The
variance he requested has been overruled by a judge. I just want to tell you what he built
out there absolutely ruined my view of the Lynnhaven. It ruined my view ofthe wetlands
going out to the Lynnhaven. I just want to show it to you on the chart over here.
Janice Anderson: Can you come back to the microphone sir?
Robert Kerrigan: He built a 400 foot pier there out there which you can see.
Janice Anderson: Where are you sir?
Robert Kerrigan: My house is right here. And I'm looking out to the Lynnhaven here or
was before he built that pier on the house. Now, as I say, his variance has been
overruled. We really need to very, very careful about permitting people to build anything
they want too. I think it should be looked at very hard, and I think that the proposed
ordinance would make it far too easy for people to build whatever they happen to have.
Thank you very much for your attention.
Janice Anderson: Thank you Mr. Kerrigan. Would you like to pass that around and get
them so the Commissioners can look at them? We'll just pass them around so they can
look directly at that.
Robert Kerrigan: Thank you very much.
Janice Anderson: Thank you sir. Are there any questions of Mr. Kerrigan?
Donald Horsley: There are no other speakers.
Janice Anderson: Thank you. Kay, since we have you, can I bring you up? I think Bill
has answered a lot of our questions on this. I guess that the Commissioners are
concerned about a couple of things. If you have the area, like if you have larger
waterfront frontage, can you place that pier anywhere you want? Can you place it right
next to your property line?
Kay Wilson: No. The only way you can use the exception to the setback is if it is
necessary .
Janice Anderson: Ifit is necessary.
Kay Wilson: If it is the only way you can access the water you can't do it if you have
300 feet and the water comes right to your bulkhead all the way.
Item #14
City of Virginia Beach
Page 14
Janice Anderson: Okay. So you can't put it right on our property line.
Kay Wilson: No. To irritate your neighbor? No.
Janice Anderson: The second thing is public comment. And piers, they can be an issue
and I think everybody here recognizes that. Like Ron brought up with Bill, the VMRC
process, is that similar to our variance process, where an application is filled out? They
show exactly where the pier is. The adjoining property owners get notice? Can you
explain tha-: a little bit more?
Kay Wilson: I don't know the specifics because we don't do it. What I can tell you is
that they do have to fill out a Joint Permit Application. They do have to fill out the
application. Whether or not notice is given to adjoining property owners, I believe it is. I
can't guarantee you that. I do know that the State's statute says ifthere is any opposition
that it will go to a full board hearing. These are normally done administratively because
there are specific criteria in the statue and in order to meet the VMRC requirements you
have to comply. Okay. And once you comply with those, VMRC is normally fine with
that.
Janice And(:rson: VMRC actually looks at what's around? What piers are there?
Kay Wilson: They look at what piers are there. The Corp of Engineers is also involved in
the joint permit application process. They check for navigation; is the navigational right?
And if there are arguments between the neighbors, say in a cove mainly is where this
occurs, they do have the right to go to Circuit Court and have their riparian rights, their
right to the water, apportioned by the Circuit Court. And that is what many of them do
and then they know where their piers can go and where everybody's pier can go. So,
they will go and do that and have that set by order.
Janice Anderson: Another issue I hear is that they have an adequate pier and now they
want it thre(: times longer. VMRC rules on that?
Kay Wilson: Yes ma'am. Anything past mean low water is really a determination for
VMRC. Zoning goes out to mean low water and then the state owns the bottom and they
get to make the rules. -The only exception is specifically in the State there is an exception
for structures. The structures on the pier, if local ordinance prohibits them, then they will
go along with that.
Janice Anderson: Okay. Just because they have an existing pier that gets them out to, I
guess deep enough water, but they want to go a little further.
Kay Wilson: That is not with the city. The city has no right to say no. It has no ability
to stop that.
Janice Ande:~son: But before when they went to the Board of Zoning, they did? No?
Kay Wilson: No.
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Item #14
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Janice Anderson: Okay.
Kay Wilson: Occasionally, many years ago, there are agreements that were done
between the neighbors many years ago and they would be part of the BZA process. But
the BZA has no right to govern anything that occurs past mean low water. If somebody
comes to the BZA now for a pier and it is in the setbacks so they need a BZA variance,
and they come to the BZA, the BZA can't tell them, "No you can't put a structure on it,",
because it is not allowed by ordinance. So, actually to go through the BZA process, you
can actually get structures on the piers.
David Redmond: I'm sorry can you say that again? You lost me a little bit. I'm trying
to follow it.
Kay Wilson: The only way we can prohibit structures on a pier is by local ordinance. A
BZA variance would not be a local ordinance so the BZA couldn't say you couldn't put
structures on that pier. It would be governed by whatever the rules are for VMRC.
David Redmond: Okay.
Kay Wilson: They allow them to a certain extent.
David Redmond: I thought I understood Dr. Taubman to say that was BZA. Was he
mistaken?
Kay Wilson: Yes sir.
David Redmond: Okay. Thank you?
Steve Taubman: Can I answer that
Janice Anderson: No sir. Are there any other questions for Ms. Wilson?
Bill Macali: Madame Chair. You just need to know that the difference between this
ordinance and the pier that is in the setback is the city has said you can't build anything
but a boatlift when it is in the setback. But if it is not within the setback, the BZA has
absolutely nothing whatsoever to do with that. It is entirely up to VMRC. The reason we
did that is because they are in the setback and they are closer to people's property. We
don't think that people should be able to build great big boat lifts right next to
somebody's property.
Janice Anderson: Gotcha. Jay.
Jay Bernas: I have an easy one. Much like Commissioner Redmond, reading through it, I
didn't catch the "if necessary". Is there another way to word it?
Bill Macali: Is says if necessary to access navigable water.
Item #14
City of Virginia Beach
Page 16
Jay Bemas: Is there any other way? I don't know if that is legal terminology.
Bill Macali: If necessary to access navigable water. Pretty much that is what it says.
Jay Bernas: Okay.
Bill Macah: If you want us to rephrase that, we can.
Janice Anderson: It is evidently clear to Bill.
Jay Bernas: Okay, if there is no other way.
Kay Wilson: That determination will be made by the Zoning Administrator. Ms. Lasley
would decide when these applications come in whether or not it was necessary and they
would hav~~ the mean low water/mean high water on the site plans and things of that
nature so she can make that determination. Honestly we thought about doing a set
number but each lot is a little different so that was a little more difficult. We thought Ms.
Lasley had the discretion to do that and would be able to say if it is necessary.
David Redmond: Apparently she is brighter than we are.
Janice Andl~rson: Are there any of questions of Kay? Thank you.
Kay Wilson: Thank you.
Janice Anderson: I'll open it up for discussion. Anyone? Ron?
Ronald Ripley: I think when I hear that the Zoning Administrator brings an issue before
the Planning Commission that is a reoccurring problem that they are always having to
correct, spend the public's money, the public time and everybody involved, that this will
correct and it sounds like it does to me. It sounds like it is a practical solution. And the
public still has the benefit of VMRC, and if there is an issue there, they can object. I
know when I received a permit for my pier, letters were sent out to all the different
adjacent property owners. Fortunately no one objected but if somebody would have
objected, I would have had a public hearing and had to explain it, and demonstrate that is
necessary, quite frankly. But I'm in favor of the ordinance as written. I will make a
motion when I get to that point.
Janice And~:rson: Thank you. Are there other comments? I'm in agreement with you
because I really think this ordinance, just as they try to hammer into our heads, which I
think we all got now, is only when they don't have the footage. It's just connecting to the
land part. Whatever happens in the water is going to be VMRC anyway, which the
public will have a comment on. So, is there any motion?
Ronald Ripley: A motion to approve.
Janice Anderson: A motion by Ron and a second by Kathy Katsias.
ii!
Item #14
City of Virginia Beach
Page 17
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 an ordinance for setbacks for
piers.
j,\. ~lSllV,l) llUSU'V,SS
}\. !<EVI >>\lsl!<ESS
,II I
o. ADJOURNMENT
NOVEMBER 3RD CITY COUNCIL
WORKSHOP CANCELLED TO
ALLOW EVERYONE TO VOTE
Thursday, November 12th
ANNUAL JOINT MEETING
General Assembly, City Council
and School Board
City Council Sessions
November 10 - Informal and Formal Session
November 17 and 24 - Workshops
December 1 and 8 - Informal and Formal Sessions
Town Hall Meetings - 2010-11 Municipal Budget
Wednesday, October 28, Larkspur Middle School, 4696 Princess Anne Road
Thursday, November 5, Princess Anne High School, 4400 Virginia Beach Blvd.
Wednesday, November 18, Green Run High School, 1700 Dahlia Drive
Thursday, December 3, Kellam High School, 2323 Holland Road
********
If you are physically disabled or visually impaired
and need assistance at this meeting,
please call the CITY CLERK'S OFFICE at 385-4303
***********
Agenda 10/27 /09st
www.vbe:ov.com
;II
CITY OF VIRGINIA BEACH
SUMMARY OF COUNCU ACTIONS
V
1
DATE: 10/13/2009 L
PAGE: 1 D S L
E D H E A W
AGENDA D S 1 E J S U N 1
ITEM # SUBJECT MOTION VOTE A T E D N 0 S H U L W
V E Z Y L N 0 R E S 0
1 P E E E E M 1 V 0 0
S H L R Y S S N A N D
VA BRIEFINGS:
FAA RADAR UPDATE Steve Herbert,
Deputy City
Manager
B PIER SETBACKS Karen Lasley,
Zoning
Administrator
C CHINESE DRYWALL Cheri Hainer,
Permits and
Inspections
Administrator -
Planning
llJIIIIIV NI CERTIFICATE OF CLOSED SESSION CERTIFIED 11-0 Y Y Y Y Y Y Y Y Y Y y
Vl.E
MINUTES - September 22, 2009 APPROVED Y Y Y Y Y Y Y Y Y i
F-l 11-0 Y Y
G/H/I-l Ordinance to AUTHORIZE a Deed ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y
conveying Lynnhaven Middle School site CONSENT
to School Board
2 Ordinance to AUTHORIZE dedication of ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y
a parcel of land near Kings Grant CONSENT
Elementary at 586 North Lynnhaven Road.
DISTRICT 5 - L YNNHA YEN
3 Ordinance re ASSIGNMENT of Sublease ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y y
for First to YMCA CONSENT
4 Resolution re AGREEMENT between ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y
City IIRCCE re Transportation to CONSENT
complete public input process
5 Resolution to REFER to Planning ADOPTED, BY 11-0 Y Y Y Y y y Y Y Y Y Y
Commission an Ordinance to AMEND CONSENT
Sill of CZO re definition of adult
bookstores.
6 Ordinance to AUTHORIZE an ADOPTED, BY 11-0 Y y Y Y Y y y Y Y Y y
encroachment into a portion of City-owned CONSENT
r-o-w for SAMUEL W. ZIMMER re
block paver/ brick walk! cobblestone curb!
modify planter at 53-Y. Street!5303 Ocean
Front Avenue. DISTRICT 5 -
L YNNHA YEN
7 Ordinance to ESTABLISH FEMA ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y
Administrative Cost Grant! TRANSFER CONSENT
$99,852/$184,157 from FEMA re Virginia
Task Force 2 Urban Search/Rescue Team.
8 Ordinance to APPROPRIATE $93,430 to ADOPTED, BY 11-0 Y Y y Y Y Y Y Y Y Y Y
Police re DEA Seized Property CONSENT
CITY OF VIRGINIA BEACH
SUMMARY OF COUNCIL ...ICTIONS
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AGENDA D S I E J S U N I
ITEM # SUBJECT MOTION VOTE A T E D N 0 S H U L W
V E Z Y L N 0 R E S 0
I P E E E E M J V 0 0
S H L R Y S S N A N D
9 Ordinance to ACCEPT/APPROPRlATE ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y
from US Criminal Justice $20,847 to CONSENT
Commonwealth Attomey's Office re
Victim Witness
10 Ordinance to APPROI'RlATE $9,940 ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y
from Proffer hnpact Flmd to refund CONSENT
overpayment of open !pace proffer fees to
Victoria Park ResidelltiaI Develonment
J-I SANDLER A T BREI~NEMAN FARM, APPROVED AS 11-0 Y Y Y Y Y Y Y Y Y Y Y
L.L.C. Amendment tl) PD-H2 Land Use PROFFERED,
Plan Nichols Park at Lexington re BY CONSENT
carriage-style homes tc townhomes at
Nichols Ridge Road/Willow Croft Drivel
Totteridge Lane. DIS1RlCT 2 -
KEMPSVILLE
2 HEBRON CORNERHTONE CHURCH APPROVEDI 11-0 Y Y Y Y Y Y Y Y Y Y Y
INTERNATIONAL/C:S CONDITIONED,
COMMERCIAL PROPERTIES, LLC, BY CONSENT
CUP re church renovation at 5565
Virginia Beach Boulevard. DISTRICT 2 -
KEMPSVILLE
3 ATLANTIC MARINE APPROVEDI 11-0 Y Y Y Y Y Y Y Y Y Y Y
CONSTRUCTION, INC. CUP re bulk CONDITIONED,
storage yard at 3465 Chandler Creek BY CONSENT
Roac!.
DISTRICT 3 - ROSE H IU.L
4 BOBIDEBRA BURTON CUP re APPROVEDI 11-0 Y Y Y Y Y Y Y Y Y Y Y
residential kennel at H25 Drum Point CONDITIONED,
Road. BY CONSENT
DISTRICT 7 - PRINCE:;S ANNE
5 HAMPTON ROADS YOUTH and APPROVEDI 11-0 Y Y Y Y Y Y Y Y Y Y Y
COMMUNITY ADVISORY CONDITIONED,
COUNCIL/PINEY GIlOVE BAPTIST BY CONSENT
CHURCH Modification of Conditions
(approved April 11, 1988) to add portable
classrooms at 2804 Holland Road.
DISTRICT 7 - PRINCESS ANNE
K APPOINTMENTS:
Board of Zoning Appeal! Five year terms 11-0 Y Y Y Y Y Y Y Y Y Y Y
0110112010 -
12/3112014
George A.
Alcaraz
Cheryl Avery-
Harl!:rove
Chesapeake Bay Preservltion Area Board Three year tenn 11-0 Y Y Y Y Y Y Y Y Y Y Y
0110112010 -
12/3112012
F. Dudley Fulton
,II
CITY OF VIRGINIA BEACH
SUMMARY OF COUNCftACnONS
V
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PAGE: 3 D S L
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AGENDA D S I E J S U N I
ITEM # SUBJECT MOTION VOTE A T E D N 0 S H U L W
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
Health Services Advisory Board Unexpired term 11-0 Y Y Y Y Y Y Y Y Y Y Y
thru 03/31/2010
plus 3 year term
04/01/2010 -
03/31/2013
Judith Williams
UM/N ADJOURNMENT: 6:07 PM
Thursday, November 12th
ANNUAL JOINT MEETING
General Assembly, City Council and
School Board