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FEBRUARY 23, 2010 AGENDA
CITY COUNCIL MAYOR WILLIAM D. SESSOMS, JR., At -Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 RITA SWEET BELLI7TO, At -Large GLENN R. DAMS, Rase Hall - District 3 WILLIAMR. DeSTEPH, At -Large HARRY E. DIEZEL, Kempsville - District 1 ROBERT M. DYER, Centerville - District I BARBARA M. HENLEY, Princess Anne — District 7 JOHN E. UHRIN, Beach — District 6 ROSEMARY WILSON, At -Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER -JAMES K SPORE CITY ATTORNEY- MARK D. STILES CITYASSESSOR - JERALD BANAGAN CITYAUDITOR -LYNDON S. REMIAS CITY CLERK -RUTH HODGES FRASER, MMC CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA 23 February 2010 I. CITY COUNCIL'S BRIEFING: - Conference Room - A. ANNUAL REAL ESTATE ASSESSMENTS Jerald Banagan, Real Estate Assessor CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 13456-8005 PHONE: (757) 385-4303 FAX (75 7) 385-5669 E- MAIL: Ctycncl@vbgov.com H. CITY MANAGER'S BRIEFINGS: A. VIRGINIA BEACH SHOPPING CENTER REVITALIZATION Warren Harris, Director — Department of Economic Development B. INTERIM FINANCIAL STATEMENT Patti Phillips, Director — Finance Department M. 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 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: Rabbi Levi Mongolin Chabad Lubowitch of Tidewater 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 February 9, 2010 G. FORMAL SESSION AGENDA H. MAYOR'S PRESENTATION 1. VIRGINIA LAW ENFORCEMENT ACCREDITATION COALITION (VALEAC) Sheriff Kenneth W. Stolle I. CONSENT AGENDA J. ORDINANCES/RESOLUTIONS 1. Ordinance to TRANSFER $244,800 from the Reserve for Contingencies to the FY 2009-10 Non -Departmental Operating Budget to provide a local match for a federal grant to Hampton Roads Transit to study the Virginia Beach Transit Extension 2. Ordinances to AMEND the City Code: a. §23-50.1 re penalty for failure to comply in the removal of certain trees b. §23-50 re penalty for failure to comply with cutting excessive growth of weeds or grass 3. Resolution to SUPPORT offshore oil and natural gas exploration re an alternative energy source, with royalty payments to Atlantic Coast states, and REQUEST Congress and the Virginia General Assembly provide legislation to dedicate a portion of these royalties to fund transportation 4. Ordinance to AMEND Ordinance ORD -3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C. and AUTHORIZE the City Manager to execute the Lease 5. Ordinance to AUTHORIZE the acquisition of property at 1907 Baltic Avenue from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White re potential development at the Oceanfront 6. Resolution to AUTHORIZE the City Manager to execute an Intergovernmental Agreement (IA) between the Virginia Department of Agriculture and Consumer Services and the City re the purchase of Agricultural Reserve Program (ARP) easements 7. Ordinance to AUTHORIZE a temporary encroachment into a portion of a City -owned property for Forest E. and Judy P. Williams to construct and maintain permeable paver parking spaces and an existing paver walk at 308 49`h Street Ordinances to APPROPRIATE: a. $7,200,000 from SPSA to the FY 2009-10 Public Works Operating Budget re increased SPSA disposal costs b. $25,579 from the Oyster Heritage Trust Fund to the FY 2009-10 Operating Budget of the Department of Planning re increasing oyster habitat in the Lynnhaven River watershed and continuing the Oyster Shell Recycling Program 9. Ordinance to TRANSFER $250,000 from the Subscription Fund Reserve for Contingencies - Regular within the FY 2009-10 Subscription Fund for public safety air card recurring charges K. PLANNING Application of GEORGE R. and JANE C. WEBB for Nonconforming Structures at 110 74`h Street to renovate a single family dwelling and a garage apartment. DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 2. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC for Modification of Proffers (previously approved by City Council on September 8, 2009) for a change in the building site layout at 2236-2240 General Booth Boulevard DISTRICT 7 — PRINCESS ANNE DEFERRED FEBRUARY 9, 2010 RECOMMENDATION APPROVAL 3. Application of WEST NECK PROPERTIES, INCJROBERT ZIRPOLI for a Conditional Use Permit re a non-commercial community pier (private use) at 1809 Estates Court, 2933 and 2936 Estates Drive. DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 4. Application of WINNER'S REAL ESTATE HOLDINGS, LLC, for a Conditional Use Permit re a body shop consisting of motor vehicle sales, rental, service and repair at 5070 Virginia Beach Boulevard. DISTRICT 4 - BAYSIDE RECOMMENDATION APPROVAL 5. Application of STRAWBRIDGE ANIMAL CAREXAT BOYZ, INC. for a Conditional Use Permit re a Veterinary establishment for animal rehabilitative therapy at Suite 102, 2584 Aviator Drive. DISTRICT 6 - BEACH RECOMMENDATION APPROVAL 6. Application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at 501 Virginia Beach Boulevard. DISTRICT 6 - BEACH RECOMMENDATION APPROVAL 7. Application of AUTOBELL CAR WASH, INC./MESSER 1060 INDEPENDENCE BOULEVARD, LLC, for a Conditional Use Permit re an automated car wash at 1060 and 1064 Independence Boulevard. DISTRICT 4 - BAYSIDE RECOMMENDATION APPROVAL 8. Applications of KARINPHILLIP, INC./PARR PROPERTIES, LLC at 114 South Witchduck Road (Strategic Growth Area-SGA4-Pembroke) re a tattoo parlor: DISTRICT 2 - KEMPSVILLE a. Change of Zoning District Classification from I-1 Light Industrial District to Conditional B-2 Community Business District b. Conditional Use Permit STAFF RECOMMENDS PLANNING COMMISSION RECOMMENDS APPROVAL DENIAL 9. Application of MORRIS H. FINE and ROBERT F. HAGANS, SPECIAL COMMISSIONERS, for a Change of Zoning District Classification from R-15 Residential District, AG -1 and AG -2 Agricultural Districts to Conditional R-15 Residential District at 3807 and 3809 Indian River Road to develop the site with single- family dwellings. DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL 10. Application of AUTOZONE DEVELOPMENT CORPORATION/LAND and BUILDING IV, L.C. for Modification of Proffers (approved by City Council on March 28, 2000 and May 24, 2005) at 5221 Indian River Road. DISTRICT 1 — CENTERVILLE RECOMMENDATION L. APPOINTMENTS APPROVAL HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION SENIOR SERVICES OF SOUTHEASTERN VIRGINIA THE PLANNING COUNCIL SOCIAL SERVICES BOARD VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT ■ ' FY 2010-2011 Budeet Schedule Date Time Event Location Mar. 23 6:00 PM City Manager Presents Budget City Council Chamber ■ Apr. 8 tba Workshop City Council Conference Room ' Apr. 13 tba Workshop City Council Conference Room ■ ■ Apr. 20 tba Workshop City Council Conference Room Apr. 22 6:OOPM Public Hearing Tallwood High School ■ Apr. 27 tba Workshop City Council Conference Room ■ Apr. 27 6:00 PM Public Hearing City Council Chamber • May 4 tba Reconciliation Workshop City Council Conference Room ■ May 11 6:00 PM Adoption City Council Chamber ' (tba: Where not indicated, time will be announced) ■ p■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■: 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 02/23/2010gw www.vbgov.com CITY COUNCIL'S BRIEFING: - Conference Room - 3:00 PM A. ANNUAL REAL ESTATE ASSESSMENTS Jerald Banagan, Real Estate Assessor II. CITY MANAGER'S BRIEFINGS: A. VIRGINIA BEACH SHOPPING CENTER REVITALIZATION Warren Harris, Director — Department of Economic Development B. INTERIM FINANCIAL STATEMENT Patti Phillips, Director — Finance Department III. CITY COUNCIL COMMENTS IV. CITY COUNCIL AGENDA REVIEW V. INFORMAL SESSION - Conference Room - 4:30 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION �I VI. FORMAL SESSION AGENDA - City Council Chamber - 6:00 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. INVOCATION: Rabbi Levi Mongolin Chabad Lubowitch of Tidewater 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 February 9, 2010 G. FORMAL SESSION AGENDA arsoluttlitt CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded here and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia Law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia Law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. H. MAYOR'S PRESENTATION I. VIRGINIA LAW ENFORCEMENT ACCREDITATION COALITION (VALEAC) Sheriff Kenneth W. Stolle CONSENT AGENDA J. ORDINANCES/RESOLUTIONS Ordinance to TRANSFER $244,800 from the Reserve for Contingencies to the FY 2009-10 Non -Departmental Operating Budget to provide a local match for a federal grant to Hampton Roads Transit to study the Virginia Beach Transit Extension 2. Ordinances to AMEND the City Code: a. §23-50.1 re penalty for failure to comply in the removal of certain trees b. §23-50 re penalty for failure to comply with cutting excessive growth of weeds or grass 3. Resolution to SUPPORT offshore oil and natural gas exploration re an alternative energy source, with royalty payments to Atlantic Coast states, and REQUEST Congress and the Virginia General Assembly provide legislation to dedicate a portion of these royalties to fund transportation 4. Ordinance to AMEND Ordinance ORD -3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C. and AUTHORIZE the City Manager to execute the Lease 5. Ordinance to AUTHORIZE the acquisition of property at 1907 Baltic Avenue from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White re potential development at the Oceanfront 6. Resolution to AUTHORIZE the City Manager to execute an Intergovernmental Agreement (IA) between the Virginia Department of Agriculture and Consumer Services and the City re the purchase of Agricultural Reserve Program (ARP) easements 7. Ordinance to AUTHORIZE a temporary encroachment into a portion of a City -owned property for Forest E. and Judy P. Williams to construct and maintain permeable paver parking spaces and an existing paver walk at 308 49th Street 8. Ordinances to APPROPRIATE: a. $7,200,000 from SPSA to the FY 2009-10 Public Works Operating Budget re increased SPSA disposal costs b. $25,579 from the Oyster Heritage Trust Fund to the FY 2009-10 Operating Budget of the Department of Planning re increasing oyster habitat in the Lynnhaven River watershed and continuing the Oyster Shell Recycling Program 9. Ordinance to TRANSFER $250,000 from the Subscription Fund Reserve for Contingencies - Regular within the FY 2009-10 Subscription Fund for public safety air card recurring charges R7U gE,,11 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Transfer Funds to Provide a Local Match for a Federal Grant to Study the Virginia Beach Transit Extension MEETING DATE: February 23, 2010 ■ Background: Hampton Roads Transit (HRT) has received notification of a grant award in the amount of $979,200 from the Federal Transit Association. This grant has been awarded to conduct the Virginia Beach Transit Extension Study. ■ Considerations: The grant funds have been awarded to HRT provided there is a match of local funds. The match requirements provide that four federal dollars will be obligated for every City dollar. It is important to note that this contribution does not obligate the City to Light Rail or future funding toward Light Rail. ■ Public Information: HRT publicly briefed City Council on this request at the February 9, 2010 meeting. City Council also discussed this item at the February 16, 2010 work session. Public information will be provided through the normal Council agenda process. ■ Alternatives: If grant match is not provided by the City of Virginia Beach, these federal funds will be returned to FTA or used on other transportation projects by HRT. ■ Recommendations: It is recommended that City Council appropriate $244,800 from the Reserves for Contingencies and contribute these funds to HRT for this study. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Planning Department City Manage . s 1 AN ORDINANCE TO TRANSFER FUNDS TO 2 PROVIDE THE LOCAL MATCH FOR A FEDERAL 3 GRANT TO STUDY THE VIRGINIA BEACH TRANSIT 4 EXTENSION 5 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 9 1. That $244,800 is hereby transferred from the Reserve for Contingencies to 10 the FY 2009-10 Non -Departmental Operating Budget for the purpose of 11 providing a local match for a federal grant to Hampton Roads Transit to 12 study the Virginia Beach Transit Extension. Adopted by the Council of the City of Virginia Beach, Virginia on the day of .2010. Approved as to Content ,�) a�3 (a - �� Management Services CA11381 R-3 February 17, 2010 Approved as to Legal Sufficiency ity r ey's Office CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: 1) An Ordinance to Amend Removal of Certain Trees 2) An Ordinance to Amend Growth of Weeds or Grass MEETING DATE: February 23, 2010 City Code § 23-50.1 Pertaining to the City Code § 23-50 Pertaining to Excessive ■ Background: City Code Section 23-50.1 provides that if a tree, by reason of disease, death, injury, infirmity or other condition, presents a danger to property or the health or safety of people or other trees or vegetation, the City shall serve notice on the owner of the land that the tree must be removed within a reasonable period of time (not sooner than seven days from the notice but no later than thirty days from the notice). If the danger posed by the tree can be eliminated by removing only a portion or portions of the tree, then the notice will specify that only those portions must be removed. City Code Section 23-50 provides that upon determination there exists on any land or premises within the city, including the area between such land or premises and the curb line, any grass, weeds, brush or similar vegetation in excess of ten (10) inches in height, notice shall be served on the owner of such land or premises or his or her agent, or on the occupant thereof, or both, to cause such grass, weeds, brush or similar vegetation to be cut and removed from such land or premises within seven (7) days from the date of such notice. This ordinance was deferred by City Council on January 26, 2010 until February 23, 2010. Councilmember DeSteph has requested these items be further deferred until March 23, 2010. ■ Considerations: Currently, failure to remove such a tree (or portions thereof) within the time prescribed by the notice is punishable as a Class 4 misdemeanor (conviction of which is subject to a fine of up to $250). Similarly, failure to comply with cutting excessive weeds or grass after a notice is issued and served is currently punishable as a Class 2 misdemeanor (conviction of which is punishable by confinement in jail for not more than six months and/or a fine of up to $1000). Convictions of certain misdemeanors are reportable to the statewide Central Criminal Records Exchange and are included in criminal history reports, but violations of the City's grass or tree ordinances are not reportable to the state and thus are not included in statewide or national criminal history reports. Nevertheless, such convictions are a matter of record with the courts, and conviction of either section remain part of the Virginia Courts Case Information System for ten years from the date of conviction. The Virginia Courts Case Information System is an online database searchable by anyone with Internet access. Finally, applicants for employment or professional licensure, or those who seek to adopt children or become a foster parent, for example, may be required to disclose whether they have ever been convict d f e o a came. All misdemeanors are crimes, regardless of whether they are reportable to statewide central database, so such applicants would be required to disclose a conviction of either code provision. This ordinance would instead provide that failure to comply with notices for either of these two sections shall be punishable by a civil penalty not to exceed $250. The Code would continue to provide that the City may remove such a tree (or portions thereof) or weeds and grass at the property owner's expense, along with an administrative fee of $150. The effective date of both ordinances shall be July 1, 2010. ■ Public Information: This item will be advertised in the same manner as other agenda items. This item was previously advertised in the January 26, 2010 City Council agenda. ■ Attachments: Ordinance Requested by Councilmember DeSteph REQUESTED BY COUNCILMEMBER DeSTEPH 1 AN ORDINANCE TO AMEND CITY CODE § 23-50.1 2 PERTAINING TO REMOVAL OF CERTAIN TREES 3 4 SECTION AMENDED: § 23-50.1 5 6 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 7 BEACH, VIRGINIA: 8 9 That Section §23-50.1 of the City Code is hereby amended and reordained to 10 read as follows: 11 12 Sec. 23-50.1. Removal of certain trees. 13 14 (a) Upon determination by the code enforcement administrator or the city arborist, or 15 the officers or employees of their respective departments, that there exists upon 16 any land or premises within the city any tree which, by reason of disease, death, 17 injury, infirmity or other condition, presents a danger to property or to the health 18 and safety of persons or other trees or vegetation, notice shall be served upon 19 the owner of such land or premises or his or her agent or upon the occupant 20 thereof to cause such tree to be removed within a reasonable period of time, not 21 less than seven (7) days nor more than thirty (30) days, specified in such notice. 22 If the danger presented by such tree may be eliminated by the removal of a 23 portion of such tree, the notice shall specify the portion or portions of the tree to 24 be so removed. For purposes of this section, the term "tree" shall be construed to 25 include the plural of the term. 26 27 (b) Service of the notice provided for herein shall be by personal service or by 28 certified or registered mail. In the event the land or premises are vacant and the 29 owner thereof or his or her agent cannot be found by the exercise of due 30 diligence, such notice shall be given by certified or registered mail to the last - 31 known residence or post office box address of the owner and, in addition thereto, 32 shall be posted in a conspicuous place upon the premises. Service of such notice 33 upon one owner or occupant in any manner provided for herein shall be sufficient 34 in the event such land or premises is owned or occupied jointly. 35 36 (c) Failure to comply with the terms of a notice issued and served as provided in this 37 section within the time prescribed by such notice shall be punishable as• -a -Class 38 4 misdemeane by a civil penalty not to exceed $250.00. In addition to any fine 39 civil penalty imposed hereunder, the code enforcement administrator may, in the 40 name of the city, institute legal action to enjoin the continuing violation of this 41 section and may remove or contract for the removal of any such tree or portion 42 thereof, in which event the cost of such removal, including an administrative fee 43 in the amount of one hundred fifty dollars ($150.00), shall be charged to the 44 person or persons named in the notice and collected by action at law or as 45 delinquent real estate taxes are collected, or both. The remediesrovi 46 herein shall be cumulative in nature. P ded for 47 48 (d) The provisions of this section shall not apply to any parcel of landreater than 49 one acre in size which is located in an agricultural zoning district and 50 principally for agricultural or horticultural purposes. used 51 52 Adopted by the Council of the City of Virginia Beach, Virginia, on the 53 of 2009 day APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's O ' e CA 11325 R-2 November 17, 2009 REQUESTED BY COUNCILMEMBER DeSTEPH 1 AN ORDINANCE TO AMEND CITY CODE §23-50 2 PERTAINING TO EXCESSIVE GROWTH OF 3 WEEDS OR GRASS 4 5 SECTION AMENDED: §23-50 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section §23-50 of the City Code is hereby amended and reordained to read 11 as follows: 12 13 Sec. 23-50. Accumulations of trash, garbage, etc., or excessive growth of weeds 14 or grass. 15 16 (a) Except as provided in subsection (e) hereof, upon determination by the 17 director of housing and neighborhood preservation, the code enforcement administrator, 18 or any inspector of the department of housing and neighborhood preservation, whether 19 temporarily or permanently employed as such, that there exists upon any land or 20 premises within the city, including the area between such land or premises and the curb 21 line, any trash, garbage, refuse, litter or similar substances, except as may be placed 22 thereon for purposes of collection in accordance with chapter 31 of this Code, notice 23 shall be served on the owner of such land or premises or his or her agent, or on the 24 occupant thereof, or both, to cause such trash, garbage, refuse, litter or similar 25 substances to be removed from such land or premises within seven (7) days from the 26 date of such notice. 27 28 (b) Except as provided in subsections (e) and (f) hereof, upon determination 29 by the director of housing and neighborhood preservation, the code enforcement 30 administrator, or any inspector of the department of housing and neighborhood 31 preservation, whether temporarily or permanently employed as such, that there exists 32 on any land or premises within the city, including the area between such land or 33 premises and the curb line, any grass, weeds, brush or similar vegetation in excess of 34 ten (10) inches in height, notice shall be served on the owner of such land or premises 35 or his or her agent, or on the occupant thereof, or both, to cause such grass, weeds, 36 brush or similar vegetation to be cut and removed from such land or premises within 37 seven (7) days from the date of such notice. 38 39 (c) Service of the notice provided for in subsections (a) and (b) shall be by 40 first-class mail, personal delivery or posting in a conspicuous place upon the land or 41 premises; provided, however, that if the land or premises are unoccupied and the owner 42 or his or her agent cannot be found by the exercise of due diligence or are unknown, 43 such notice shall be sufficient against the owner if given by first-class mail to the 44 owner's last known mailing address and posted in a conspicuous place upon the land or 45 premises. The code enforcement administrator and inspectors of the department of 46 housing and neighborhood preservation are hereby authorized to deliver or post such 47 notices. One notice (as provided for in subsection (b)) per growing season is hereby 48 deemed reasonable notice to owners of vacant developed or undeveloped property to 49 authorize the city to remove or contract for the removal of any excessive growth of 50 grass, weeds, brush or similar vegetation for the entire growing season. 51 52 (d) Failure to comply with the terms of a notice issued and served as provided 53 in this section within the time prescribed in such notice shall 54 mesdemeane shall be punishable by a civil penalty in an amount not to exceed One 55 Hundred Dollars ($100.00) for the initial summons and not more than One Hundred Fifty 56 Dollars ($150.00) for each additional summons Each day durinq which the violation is 57 found to have existed shall constitute a separate offense However, specified violations 58 arising from the same operative set of facts shall not be charged more frequently than 59 once in any ten-dav period and a series of specified violations arising from the same 60 operative set of facts shall not result in civil penalties which exceed a total of Three 61 Thousand Dollars ($3,000.00). In addition to any penalties imposed hereunder, the city 62 may institute legal action to enjoin the continuing violation of this section and may 63 remove or contract for the removal of such trash, garbage, refuse, litter or similar 64 substances or grass, weeds, brush or similar vegetation, in which event the cost and 65 expenses thereof, including an administrative fee in the amount of one hundred fifty 66 dollars ($150.00), shall be chargeable to and paid by the owner or occupant of the land 67 or premises. Any such charge which is not paid within thirty (30) days of the date on 68 which it is billed to the owner of such land or premises shall constitute a lien upon the 69 property and may be collected in any manner provided by law for the collection of taxes; 70 provided, however, that no such lien shall be valid against any owner of land or 71 premises who was not served with the notice prescribed in subsection (a) or (b) 72 hereinabove, as the case may be. 73 74 (e) The provisions of this section shall not apply to any parcel of land greater 75 than one (1) acre in size which is (1) located in an agricultural zoning district or enrolled 76 in the land use assessment program and (2) used principally for agricultural, silvicultural 77 or horticultural purposes. 78 79 (f) The provisions of subsection (b) shall not apply to the following areas: 80 81 (1) Portions of undeveloped lots, parcels or tracts of land which are not 82 located within one hundred fifty (150) feet of a paved road; 83 84 (2) Portions of undeveloped lots, parcels or tracts of land which are not 85 located within one hundred fifty (150) feet of any other property, 86 developed or undeveloped, located in a Residential, Apartment, 87 Business, Office, Resort Tourist or Industrial Zoning District; 88 89 (3) Portions of undeveloped lots, parcels or tracts of land which are 90 inaccessible to power mowing equipment; 91 92 (4) Areas required by the Chesapeake Bay Preservation Area 93 Ordinance [appendix F] or the Southern Watersheds Management 94 Ordinance [appendix G] to be vegetated; 95 96 (5) Vegetated wetlands, as defined in the Wetlands Zoning ordinance 97 [appendix A, article 14]; 98 (6) Nontidal wetlands located within Resource Protection Areas; 99 100 (7) Coastal primary sand dunes; 101 102 (8) State -designated Wildlife Habitat Areas; 103 104 (9) Banks of detention ponds, streams, and other bodies of water, 105 natural or manmade; 106 107 (10) Banks of drainage easements; 108 109 (11) Wooded areas, including understory vegetation; and 110 111 (12) Any other area required to be vegetated by reason of the 112 application of the City Zoning Ordinance [appendix A], Subdivision 113 Ordinance [appendix B], Site Plan Ordinance [appendix C], 114 Stormwater Management Ordinance [appendix D], Chesapeake 115 Bay Preservation Area Ordinance [appendix F], Southern 116 Watersheds Management Ordinance [appendix G], or any other 117 ordinance or provision of law. 118 119 (g) As used in this section, the term "developed" shall refer to any lot, parcel 120 or tract of land upon any portion of which there has been placed any building, structure 121 or other improvement or upon any portion of which there has been any land -disturbing 122 activity, including, without limitation, paving, filling, grading, dredging, clearing or 123 excavating. 124 125 COMMENT 126 127 The amendments make violations of the section punishable by a civil penalty rather than as 128 a criminal offense. The amounts of civil penalties assessed under the section are in conformity with 129 the provisions of the Virginia Uniform Statewide Building Code. 130 131 Adopted by the Council of the City of Virginia Beach, Virginia, on the day 132 of , 2010. APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's O ice CA11366 R-1 January 15, 2010 04 wy�� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Supporting Offshore Oil and Gas Exploration with Royalty Payments to Atlantic Coast States MEETING DATE: February23, 2010 ■ Background: Virginia imports more electricity than all but two other states. According to the Department of Interior Mining Minerals Services, there could be as much as 3.25 billion cubic feet of natural gas located off the coast of Virginia. The Department of Interior is currently in the process of considering the leasing of Block 220 off the coast of Virginia for offshore oil and gas exploration. There are also several bills in the General Assembly of Virginia promoting the exploration and possible production of oil and gas from those fields. The Mayor created the Alternative Energy Task Force to look at energy needs of Virginia and the Commonwealth. The Task Force identified U.S. produced oil and gas as bridge sources until alternative sources such as wind become more mature and usable. It is believed that oil and natural gas exploration can be done in an environmentally sound manner. The development of an offshore oil and gas industry would create thousands of jobs in Hampton Roads and produce hundreds of millions of dollars worth of revenue to the Commonwealth and local governments if the Federal Royalty Law is amended to allow not only Gulf and Pacific states but also Atlantic Coast states like Virginia to receive offshore royalties. ■ Considerations: This resolution endorses exploration of oil and natural gas off the coast of Virginia in Lease Block 220. The resolution asks Congress to amend the legislation concerning royalty payments to states where oil and natural gas exploration occurs so that Virginia also can receive royalties from oil and natural gas development and that the royalty area boundary line is an east -west line between adjoining states. The resolution also supports legislation in the General Assembly that would dedicate a portion of the royalties arising from oil and natural gas production to address transportation needs. ■ Public Information: Public information will be handled through the usual City Council agenda. ■ Attachments: Resolution Requested by Mayor Sessoms 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 REQUESTED BY MAYOR SESSOMS A RESOLUTION SUPPORTING OFFSHORE OIL AND GAS EXPLORATION WITH ROYALTY PAYMENTS TO ATLANTIC COAST STATES WHEREAS, the Commonwealth of Virginia imports more electricity than all but two other states; and WHEREAS, according to the Department of Interior -Mining Minerals Services, as much as 3.25 billion cubic feet of natural gas may be located off the coast of Virginia; and WHEREAS, the Department of Interior is in the process of considering the leasing of Block 220 off the coast of Virginia for offshore oil and gas exploration; and WHEREAS, there are several bills in the General Assembly of Virginia promoting the exploration and possible production of oil and gas from those fields; and WHEREAS, the development of an offshore oil and gas industry would create thousands of jobs in Hampton Roads and produce hundreds of millions of dollars worth of revenue to the Commonwealth and local governments if the Federal Royalty Law was amended to allow not only Gulf and Pacific states but also Atlantic Coast states like Virginia to receive offshore royalties; and WHEREAS, the Mayor created the Alternative Energy Task Force to look at energy needs of Virginia Beach and the Commonwealth; and . WHEREAS, the Alternative Energy Task Force has identified U.S.-produced oil and gas as bridge sources until alternative sources such as wind become more mature and usable; and WHEREAS, it is believed that this oil and natural gas exploration can be done in an environmentally sound manner; and WHEREAS, there are many alternative uses for natural gas for energy production and other uses, and natural gas is one of the cleanest sources of energy production. NOW, THEREFORE, BE IT RESOLVED BY CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA THAT: 1. City Council endorses exploration for the development of oil and natural gas off the coast of Virginia in Lease Block 220, which is more than 50 miles from the coast of Virginia Beach; and 45 2. City Council endorses this development because of the need to create 46 more American -controlled energy resources; and 47 48 3. It is the sense of Council that oil and natural gas should be developed as a 49 bridge until other alternative energy sources such as wind and biodiesel are developed. 50 51 BE IT FURTHER RESOLVED THAT: 52 53 1. City Council requests that Congress amend the legislation concerning 54 royalty payments to states where oil and natural gas exploration occurs so that Virginia 55 can receive royalties from this oil and natural gas development; and 56 57 2. City Council supports legislation in the General Assembly that would 58 dedicate a portion of the royalties arising from the aforementioned production to be 59 dedicated to transportation to improve the quality of life and the competitiveness of 60 Virginia; and 61 62 3. City Council requests Congress to allow for royalty payments to Atlantic 63 Coast states as is done in the Gulf of Mexico and further requests Congress to amend 64 the royalty area maps so that the boundaries for the Atlantic Coast states are an a east - 65 west line between the states; and 66 67 4. The City Clerk shall provide a copy of this resolution to the City's 68 Congressional Delegation, the City's Local Delegation to the General Assembly, and the 69 Governor of Virginia. Adopted by the Council of the City of Virginia Beach this day of .2010. APPROVED AS TO LEGAL SUFFICIENCY: tt 's Office CA11384 R-2 February 17, 2010 .JI CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Ordinance ORD -3065K to Revise the Terms of the Lease of 13.9 Acres +/-, at the Sportsplex, to Virginia Beach Field House, L.L.C. MEETING DATE: February 23, 2010 ■ Background: On February 3, 2009, City Council authorized the execution of a lease of 13.9 +/- acres of City -owned property at the Sportsplex to Virginia Beach Field House, L.L.C. (the "Lease"). The Lease was for the construction and operation of an indoor field house. Council also approved the granting of an option to lease an additional 23 acres (the "Option"). The Option is not affected by this amendment. In the summer of 2009, City staff and representatives of Virginia Beach Field House, L.L.C. ("VBFH") completed negotiation and drafting of the Lease consistent with the Summary of Terms approved by City Council on February 3, 2009. However, the Lease was not executed pending the securing of financing by VBFH. VBFH has now secured financing and is ready to execute the Lease. However, VBFH's lender has requested a substantive change to the terms of the Lease as approved by City Council. The requested change would alter the circumstances under which the tenant's interest under the Lease could be assigned to a third party. The Lease as previously drafted gave the City the authority to accept or reject an assignee. As amended, the tenant's interest in the Lease could be assigned to a third party who meets certain pre -determined conditions and standards regarding prior experience, net worth and criminal background. ■ Considerations: Other than the change as described above, the Lease is still consistent with the Summary of Terms previously approved by City Council. ■ Public Information: Advertisement of City Council Agenda ■ Recommendations: Approval ■ Attachments: Ordinance Location Map Amended Summary of Terms Submitting Department/Agency: Parks & Recreation City Manager. wo" I AN ORDINANCE TO AMEND ORDINANCE ORD - 2 3065K TO REVISE THE TERMS OF THE LEASE OF 3 13.9 ACRES +/-, AT THE SPORTSPLEX, TO 4 VIRGINIA BEACH FIELD HOUSE, L.L.C. 5 6 WHEREAS, by Ordinance ORD -3065K, adopted February 3, 2009, after 7 reviewing the results of its "Request for Statements of Interest and Qualifications 8 Virginia Beach Sportsplex", the City Council authorized the City Manager to enter 9 into a lease for 13.9 acres +/- of City -owned property for the construction of an 10 indoor field house (the "Lease") with Virginia Beach Field House, L.L.C. 11 ("VBFH"); 12 13 WHEREAS, the terms and conditions of the Lease were to conform with 14 the Field House Ground Lease Summary of Terms attached to Ordinance ORD - 15 3065K. Ordinance ORD -3065K also authorized the granting of an option for 16 lease of an additional 23 acres to VBFH (the "Option"). The terms of the Option 17 are not affected by this Ordinance; 18 19 WHEREAS, prior to execution of the Lease, VBFH requested, on behalf of 20 its lender, a substantive change to the Lease to amend the circumstances in 21 which a third party could succeed VBFH as the tenant under the Lease; 22 23 WHEREAS, the requested change would allow assignment of the tenant's 24 interest in the Lease to a third party who demonstrated certain pre -determined 25 conditions, as set forth on the Amended Summary of Terms, attached hereto and 26 incorporated herein; and 27 28 WHEREAS, as the proposed amendment to the terms of the Lease 29 represents a change in the substantive rights of the City in the Lease, City 30 Council approval of the Amended Summary of Terms is required prior to 31 execution of the Lease. Wj 33 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 34 OF VIRGINIA BEACH, VIRGINIA: 35 36 1. The City Manager is hereby authorized to execute a lease of 13.9 37 acres (the "Leased Property'), as shown on Exhibit A, attached hereto and made 38 a part hereof, for the construction and operation of a field house for the term of 39 twenty (20) years, with two optional ten-year renewal terms, with Virginia Beach 40 Field House, L.L.C. ("VBFH"), in accordance with the Amended Summary of 41 Terms attached hereto as Exhibit B and made a part hereof, and such other 42 terms and conditions deemed necessary and sufficient by the City Manager and 43 in a form deemed satisfactory by the City Attorney, and 44 45 2. Except as modified on the Amended Summary of Terms, 46 Ordinance ORD -3065K shall remain in full force and effect. 47 Adopted by the Council of the City of Virginia Beach, Virginia, on the 48 day of , 2010. APPROVED AS TO CONTENT I � �-�: �-- I � Depaarks and Recreation CA11234 \\vbgov.com\DFS1 VApplications\CityLawProd\oyaom32\Wpdocs\D011\Po07OW43983MOC R-1 02/12/10 APPROVED AS TO LEGAL SUFFICIENCY City Attorney EXHIBIT B AMENDED SUMMARY OF TERMS LEASE OF 13.9 ACRES +/-, AT THE SPORTSPLEX, TO VIRGINIA BEACH FIELD HOUSE, L.L.C. AMENDED TERMS: Lease may be assigned to a third party if: 1. The City approves of the assignee; or 2. The assignee provides evidence to the City of the assignee having: a. At least 2 years experience operating a sports facility that is open to the public and at least 50,000 square feet in size; and b. Net worth of at least $1,000,000; and c. No convictions for felonies or crimes involving inappropriate contact with minors by the assignee's principals. PRIOR LEASE TERMS (Unaffected by Amendment) LESSOR: City of Virginia Beach LESSEE: Virginia Beach Field House, L.L.C. PREMISES: Approximately 13.9 acres adjacent to the Sportsplex for the construction and operation of a 166,000 sq. ft. field house (the "Field House"). TERM: Lease: March 1, 2010 through February 28, 2030, with two ten- year extensions at the option of the Lessee. Full potential term of forty (40) years. RENT: Rent shall be five dollars ($5.00) per year for the initial term, with additional rent equal to five percent (5%) of all gross income generated at the Field House over $5,500,000 annually beginning in the first year of the lease. INCENTIVE PAYMENT: For the first ten (10) years, the City annually shall make an incentive payment to the Lessee to offset the costs of the infrastructure improvements made by the Lessee, and the added costs of construction necessary to construct the Field House in a manner consistent with the Princess Anne Commons Design Guidelines. The payment each year shall be in an amount equal to the real estate taxes paid on the leasehold. ADDITIONAL TERMS: • Use of Field House to be limited to sports and recreation with only incidental retail component (no more than 30% of annual gross income from retail). • Lessee to pave existing parking lot adjacent to Sportsplex as part of construction of Field House. • Field House and all other improvements revert to City at the expiration of the term of the lease, or any extensions thereof. OPTION: • Option to lease an additional 23 acres for the construction and development of six outdoor artificial turf fields. City to be paid one dollar ($1) per participant, per event, on all fields. s CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to authorize the purchase of approximately 10,000 square feet of property located at 1907 Baltic Avenue in the City of Virginia Beach from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White MEETING DATE: February 23, 2010 ■ Background: Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White (the "Sellers") have expressed an interest in selling approximately 10,000 square feet (0.23 acres) of land and improvements thereon located 1907 Baltic Avenue (the "Property") to the City of Virginia Beach. ■ Considerations: The City has identified the Seller's property as a strategic site for potential development at the Oceanfront. The City has pursued the acquisition of the fee simple interest in the property, funded from Various Site Acquisitions, CIP 3-368, and has reached an agreement with the Sellers to buy the property for $453,600. The property is located on the east side of Baltic Avenue between 19th and 20th Streets in Virginia Beach, Virginia. ■ Public Information: Advertisement of City Council Agenda ■ Alternatives: Approve the acquisition as presented or deny the acquisition. ■ Recommendations: Approve the acquisition as set forth in the attached Summary of Terms. ■ Attachments: Ordinance, Location Map, and Summary of Terms Recommended Action: Approval of the Ordinance. Submitting Department/Agency: Public Works/Real Estate City Manage • S k Dot 1 AN ORDINANCE TO AUTHORIZE THE PURCHASE OF 2 APPROXIMATELY 10,000 SQUARE FEET OF PROPERTY 3 LOCATED AT 1907 BALTIC AVENUE IN THE CITY OF 4 VIRGINIA BEACH FROM ALEX D. STEVENS, RUSS M. 5 WHITE, KYLE V. STEVENS AND SHELLEY A. WHITE 6 7 WHEREAS, Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. 8 White ("Sellers") own approximately 10,000 square feet of real property located at 1907 9 Baltic Avenue, in the City of Virginia Beach, Virginia (the "Property'); 10 11 WHEREAS, Sellers desire to sell the Property to the City of Virginia Beach (the 12 "City"); 13 14 WHEREAS, the City has identified the. Property as a strategic site for potential 15 development at the Oceanfront; 16 17 WHEREAS, funding for this acquisition is available in the Various Site Acquisition 18 CIP account (CIP 3-368). 19 20 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 21 BEACH, VIRGINIA: 22 23 1. That the City Council authorizes the acquisition of the Property by 24 purchase pursuant to § 15.2-1800 of the Code of Virginia (1950), as amended, which 25 Property is generally identified as 1907 Baltic Avenue and identified as GPIN 2407-07- 26 3669 on Exhibit A attached hereto. 27 28 2. That the City Manager or his designee is further authorized to execute all 29 documents that may be necessary or appropriate in connection with the purchase of the 30 Property, so long as such documents are in accordance with the Summary of Terms 31 attached hereto, and such other terms and conditions deemed necessary and sufficient 32 by the City Manager and in a form deemed satisfactory by the City Attorney. 33 34 Adopted by the Council of the City of Virginia Beach, Virginia, on the day 35 of , 2010. CA11231 \\vbgov.com\DFS 1 \Applications\CityLawProd\cycom32\W pdocs\D010\PW6\00043726. DOC R-1 DATE: February 12, 2010 APPROVED AS TO CONTENT: lic Works/Real Estate APPROVED AS TO LEGAL SUFFICIENCY: City Attorney' Office SUMMARY OF TERMS An Ordinance to authorize the purchase of approximately 10,000 square feet of property located at 1907 Baltic Avenue in the City of Virginia Beach from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White OWNER: Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White BUYER: City of Virginia Beach PROPERTY: Land and improvements thereon, known as GPIN 2427-07-3669, and described as Lots 3 and 4, Block D, as shown on the plat entitled "PROPERTY OF VIRGINIA BEACH PARK CORP.", dated February, 1927 and recorded in Map Book 8, at page 5 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia PURCHASE PRICE: SETTLEMENT DATE: SPECIAL TERMS AND CONDITIONS: Together with all right, title and interest, if any, in and to any and all easements, rights-of-way, private roads and other rights of access, ingress and/or egress adjacent to the above described property $453,600 On or about ninety (90) days from the date the Agreement of Sale is fully executed • Sellers shall pay all liens against the property, if any, the grantor's tax, and its own attorney's fees and costs. 0 City shall bear all other costs of closing. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution authorizing and directing the City Manager to execute, on behalf of the City, an Intergovernmental Agreement between the Virginia Department of Agriculture and Consumer Services and the City of Virginia Beach regarding the purchase of Agricultural Reserve Program Easements MEETING DATE: February 23, 2010 ■ Background: In 2009, The Virginia Department of Agriculture and Consumer Services (VDACS) determined that the City is eligible for additional State funding over the next two years in the maximum cumulative amount of $93,932.19, as reimbursement for certain costs incurred by the City in connection with the purchase of farmland preservation easements under the City's Agricultural Reserve Program (ARP). The City was previously approved to receive $403,219.75 from VDACS on June 24, 2008 and was previously approved to receive $49,900.00 from VDACS on January 27, 2009. Subject to the approval of the City Council, the City Staff and VDACS have agreed upon the terms of an Intergovernmental Agreement (IA) providing for the additional funding. ■ Considerations: The agreement provides that VDACS will reimburse the City for certain costs of acquiring ARP easements. Costs eligible for reimbursement include: (1) the costs of U.S. Treasury STRIPS bought by the City to fund the purchase of the easement; (2) the cost of one appraisal; (3) attorney's fees; (4) the costs of one survey; (5) title insurance fees; and (6) public notice costs. The IA also allows the City to be reimbursed for certain other costs that, under current practice, are not incurred by the City in the course of acquiring ARP easements. These include certain debt service on the financed portion of the purchase price of an ARP easement and portions of the purchase price of an ARP easement that the City will prepay. The IA also places a maximum amount on the reimbursement for any single ARP transaction. That amount, however, is unlikely to be exceeded, and it is thus anticipated that the City will be reimbursed in any single transaction for 100% of the costs listed above, up to the maximum cumulative amount of $93,932.19. A Summary of Material Terms is included in the agenda package for this item. ■ Public Information: No special advertising is required. ■ Recommendations: Adoption of Resolution and Ordinance ■ Attachments: Resolution and Summary of Material Terms Recommended Action: Approval of the Resolution Submitting Department/Agency: Agriculture Department City Manager: r lL :7Qb q V Qft�' 1 A RESOLUTION AUTHORIZING AND DIRECTING THE 2 CITY MANAGER TO EXECUTE, ON BEHALF OF THE 3 CITY, AN INTERGOVERNMENTAL AGREEMENT 4 BETWEEN THE VIRGINIA DEPARTMENT OF 5 AGRICULTURE AND CONSUMER SERVICES AND THE 6 CITY OF VIRGINIA BEACH REGARDING THE PURCHASE 7 OF AGRICULTURAL RESERVE PROGRAM EASEMENTS 8 9 10 WHEREAS, the City of Virginia Beach adopted the Agricultural Lands 11 Preservation Ordinance in May 1995, thereby establishing a comprehensive program 12 (the "Agricultural Reserve Program") for the preservation of agricultural lands within the 13 City; and 14 15 WHEREAS, since its inception of the Agricultural Reserve Program, 16 approximately 8,049 acres of land have been placed under easements restricting 17 development of the land to agricultural uses; and 18 19 WHEREAS, the General Assembly, by Chapter 781 of the 2009 Acts of 20 Assembly, has appropriated $500,000 to the Virginia Department of Agriculture and 21 Consumer Services ("VDACS") for the continuation of a state fund to match local 22 governmental purchases of development rights program funds for the preservation of 23 working farms and forest lands; and 24 25 WHEREAS, Section 3.2-201 of the Code of Virginia authorizes VDACS' Office of 26 Farmland Preservation to develop methods and sources of revenue for aVocating funds 27 to localities to purchase agricultural conservation easements; and 28 29 WHEREAS, VDACS has determined that the City of Virginia Beach is eligible to 30 receive contributions of funds from VDACS in reimbursement for certain costs the City of 31 Virginia Beach incurs in the course of purchasing Agricultural Reserve Program 32 easements; and 33 34 WHEREAS, the City and VDACS desire to enter into an agreement pursuant to 35 which VDACS will reimburse the City for certain costs incurred by the City in the course 36 of purchasing ARP easements, up to a cumulative maximum amount of $93,932.19, for 37 a period of two (2) years from the date of the agreement; and 38 39 WHEREAS, the complete agreement between the City and VDACS is set forth in 40 that certain document entitled "INTERGOVERNMENTAL AGREEMENT Between 41 Virginia Department of Agriculture and Consumer Services and The City of Virginia 42 Beach," dated December 31, 2009, a true copy of which agreement is on file in the City 43 Clerk's Office; and 44 45 WHEREAS, a Summary of Material Terms of the said agreement is appended 46 hereto; and 47 WHEREAS, the City Council finds that the terms of the said agreement are fair 48 and reasonable and would be of significant benefit to the City and its citizens by 49 providing an additional source of funds for the purchase of Agricultural Reserve 50 Program easements; 51 52 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 53 OF VIRGINIA BEACH: 54 55 That the City Manager is hereby authorized and directed to execute the aforesaid 56 agreement on behalf of the City and to take such measures as are necessary or 57 advisable to implement such agreement according to its terms. 58 59 BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF 60 VIRGINIA BEACH: 61 62 That the City Council hereby expresses its appreciation to the Governor, the 63 General Assembly and the Virginia Department of Agriculture and Consumer Services 64 for their continued commitment to the preservation of agriculture within the 65 Commonwealth and the City. 66 67 Adopted by the Council of the City of Virginia Beach, Virginia on the day 68 of , 2010. Approved as to Content: Agriculture Department Approved as to Legal Sufficiency: IWAA &JIM City Aftorneyi Office CA -11230 %%vbpov.00mMDFS1% Applications%CityLowProdlcycom3ZWpdocsUDODSXPOO600043077.DOC R-1 February 5, 2010 V Intergovernmental Agreement between Virginia Department of Agriculture and Consumer Services and The City of Virginia Beach Summary of Material Terms Background: City of Virginia Beach is eligible to receive an additional $93,932.19 in State funds to purchase agricultural preservation easements through the City's Agricultural Reserve Program (ARP). The City of Virginia Beach was previously approved to receive $403,219.75 from the Virginia Department of Agriculture and Consumer Services (VDACS) on June 24, 2008, and was previously approved to receive $49,900.00 from VDACS on January 27, 2009 Parties: The City of Virginia Beach and the Virginia Department of Agriculture and Consumer Services (VDACS). VDACS Responsibilities: VDACS will reimburse the City for certain costs of purchasing ARP easements. The maximum amount in new funding over the next two years is $93,932.19. Reimbursable costs include: • the purchase price of any Treasury STRIPS acquired to fund the purchase price of the conservation easement; • cost of title insurance; • cost of one appraisal; • one physical survey; • reasonable attorney's fees; • cost of public notices Note: Other costs are reimbursable but are not incurred by the City in the course of ARP transactions as presently structured Maximum reimbursement for a single purchase is equal to 50% of sum of the purchase price of the easement and reimbursable costs, excluding costs of STRIPS. City of Virginia Beach Responsibilities: Cost: • Utilize state funds to further protect working agricultural lands by purchasing development rights. • Submit a progress report each year that the agreement is effective or a subsequent agreement is in effect to (i) describe any prospective properties and the status of any negotiations, (ii) estimate the timeframes that agreements could possibly be executed, (iii) maintain a public outreach program designed to educate various stakeholders, (iv) develop and maintain a monitoring program, and (v) continually evaluate the effectiveness of the program. • If City sells development rights back to the property owner, City must reimburse VDACS in an amount proportional to VDACS' contribution toward the total reimbursable cost of acquiring the ARP easement. • No associated costs are incurred by the City Duration and Termination: • Initial term is two years from the date of the agreement or December 31, 2011. • This agreement shall be merged with the previous agreements approved on June 24, 2008 and January 27, 2009, so there are no inconsistencies. • City may be recertified as eligible for future funding, but not guaranteed. • The agreement may be terminated if the City fails to perform any of its obligations under the terms of this agreement. • If the City fails to allocate the spending of the funds within the two year time period, monies will then be redistributed to other PDR programs. 2 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to authorize Temporary Encroachments into a portion of the City right of way known as 49th Street located adjacent to 308 4e Street for Forrest E. Williams and Judy P. Williams. MEETING DATE: February 23, 2010 ■ Background: Forrest E. Williams and Judy P. Williams have requested permission to construct and maintain proposed 9' x 50' permeable paver parking spaces and an existing paver walk within the City's right of way known as 49th Street located at adjacent to 308 4e Street. ■ Considerations: There are similar existing encroachments in the neighborhood that have been installed without having an encroachment approved by the City. City Staff has reviewed the requested encroachments and has recommended denial because the proposed encroachment fosters the perception of reserved residential parking along frontage in city right of way and intimidates public from parking in this area which is legal public parking. ■ Public Information: Advertisement of City Council Agenda ■ Alternatives: Approve the encroachment as presented, deny the encroachment, or add conditions as desired by Council. ■ Recommendations: Deny the request for the encroachment into 491h Street. ■ Attachments: Ordinance, Agreement, Plat, Pictures and Location Map Recommended Action: Denial of the ordinance. Submitting Department/Agency: Public Works/Real Estate City Manager. k . 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS 5 INTO A PORTION OF THE CITY 6 RIGHT-OF-WAY KNOWN AS 49TH 7 STREET LOCATED ADJACENT TO 8 308 49th STREET FOR FORREST E. 9 WILLIAMS AND JUDY P. WILLIAMS 10 11 WHEREAS, FORREST E. WILLIAMS and JUDY P. WILLIAMS desire to 12 construct and maintain a 9' x 50' permeable paver parking space area and to maintain 13 an existing paver walk within a portion of the City's right-of-way known as 49th Street, 14 located adjacent to 308 49th Street, in the City of Virginia Beach, Virginia. 15 16 WHEREAS, City Council is authorized pursuant to §§ 15.2-2009 and 15.2-2107, 17 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 18 City's right-of-way subject to such terms and conditions as Council may prescribe. 19 20 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 21 VIRGINIA BEACH, VIRGINIA: 22 That pursuant to the authority and to the extent thereof contained in §§ 15.2- 23 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Forrest E. Williams and Judy 24 P. Williams, their heirs, assigns and successors in title are authorized to construct and 25 maintain temporary encroachments for a 9' x 50' permeable paver parking space area 26 and to maintain an existing 36" wooden fence and an existing paver walk in the City's 27 right-of-way as shown on the map marked Exhibit "A" and entitled: "EXHIBIT PLAT "A" 28 SHOWING PROPOSED RIGHT-OF-WAY ENCROACHMENTS ADJACENT TO LOT 29 194, HOLLIES (M. B. 6, P. 107) FOR FORREST E. WILLIAMS AND JUDY P. 30 WILLIAMS VIRGINIA BEACH, VIRGINIA," a copy of which is on file in the Department 31 of Public Works and to which reference is made for a more particular description; and 32 33 BE IT FURTHER ORDAINED, that the temporary encroachments are expressly 34 subject to those terms, conditions and criteria contained in the Agreement between the 35 City of Virginia Beach and Forrest E. Williams and Judy P. Williams (the "Agreement"), 36 which is attached hereto and incorporated by reference; and 37 38 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 39 is hereby authorized to execute the Agreement; and 40 41 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 42 time as Forrest E. Williams and Judy P. Williams and the City Manager or his authorized 43 designee execute the Agreement. 44 45 Adopted by the Council of the City of Virginia Beach, Virginia, on the day 46 of .2010. CA -11197 V: \applications\citylawprod\cycom32\Wpdocs\D01 0\P007\00043799.DOC R-1 PREPARED: 1/28/10 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM CITY'ATTORNEY C�xR� PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT, made this 11th day of September, 2009, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and FORREST E. WILLIAMS and JUDY P. WILLIAMS, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESS ETH: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "LOT 194" as shown on that certain plat entitled: "A MAP OF THE HOLLIES ON THE ATLANTIC OCEAN ADJOINING VIRGINIA BEACH PROPERTY OWNED BY COLLIN'S HEIRS" and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 6, at page 107, and being further designated, known, and described as 308 49th Street, Virginia Beach, Virginia 23451; WHEREAS, it is proposed by the Grantee to construct and maintain public 9' x 50' permeable paver parking spaces, (the "Parking Area"), existing 36" wooden fence and an existing paver walk, collectively, the 'Temporary Encroachment", in the City of Virginia Beach; GPIN: (CITY RIGHT OF WAY — NO GPIN REQUIRED OR ASSIGNED) 2418-88-2274-0000 WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City right-of-way known as 49th Street, the "Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat entitled: "EXHIBIT PLAT "A" SHOWING PROPOSED RIGHT-OF-WAY ENCROACHMENTS ADJACENT TO LOT 194, HOLLIES (M. B. 6, P. 107) FOR FORREST E. WILLIAMS AND JUDY P. WILLIAMS VIRGINIA BEACH, VIRGINIA," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 2 It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify, hold harmless, and defend the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must submit and have approved a traffic control plan before commencing work in the Encroachment Area. It is further expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. N It is further expressly understood and agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction within the Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right-of-way/utility easement permit, the Grantee must post a bond or other security, in the amount of two times their engineer's cost estimate, to the Department of Planning to guard against damage to City property or facilities during construction. It is further expressly understood and agreed that the Grantee shall not erect signage of any type indicating that the Parking Area is private parking, nor shall the Grantee prohibit in any way the usage of Encroachment Area, specifically the Parking Area, by the general public. For the purposes of this Agreement, attempts to prohibit the public from parking within the Parking Area shall include verbal requests/statements to members of the public not to park in the Parking Area with physical barriers, posting signs stating "no parking", "no trespassing", 'towing enforced", or similar phrases, asking for vehicles to be towed from the Parking Area, or any other action the reasonable effect of which is to prevent or dissuade members of the general public from parking in the Parking Area and/or Encroachment Area. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to cant' comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the 9 cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, FORREST E. WILLIAMS and JUDY P. WILLIAMS, the said Grantee, have caused this Agreement to be executed by their signatures. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. 5 CITY OF VIRGINIA BEACH a STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: City Manager/Authorized Designee of the City Manager (SEAL) The foregoing instrument was acknowledged before me this day of , 2010, by CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: (SEAL) The foregoing instrument was acknowledged before me this day of 2010, by , CITY CLERKIAUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. Notary Registration Number: My Commission Expires: Z Notary Public (SEAL) STATE OF VIRGINIA �n,, CITY/eebW-T-Y-OF CW YCV,.,U" rto-wit: The foregoing instrument was acknowledged before me this lif day of ,�ww , 2009, by Forrest E. Williams. Notary Registration Number: "72�03� My Commission Expires:iqy 9�)f!-3 STATE OF VIRGINI,� CITY/691 W4*OF to -wit: r,.ryancy Ann 3kkel, a Notary Public Of said do Aeby cs,* that Psmonely appeared bete a me this .kL day of and dSed the due dk-A ej x,., L..— ub cula The foregoing instrument was acknowledged before me this � f 2009, by Judy P. Williams. Notary Registration Number: 1 201: My Commission Expires: "tch -3/I o613 APPROVED AS TO CONTENTS GNATURE PIL, kcr4 Fb # e DEPARTMENT 7 do hereby corWy that L' (," Pronely appeared before me this and adorarjedmw rho rho.*. day of. Cam Special Counsel for the City Attorney EXHIBIT PLAT "A" SHOWING PROPOSED RIGHT-OF-WAY ENCROACHMENTS ADJACENT TO LOT 194, HOLLIES FOR ( M. B. 6, P. 107 ) FORREST E. WILLIAMS AND JUDY P. WILLIAMS VIRGINIA BEACH, VIRGINIA SCALE : 1" = 20' SEPTEMBER 15, 2008 JOHN E. SIRINE AND ASSOCIATES, LTD. SURVEYORS -ENGINEERS. PLANNERS 4317 BONNEY ROAD VIRGINIA BEACH, VIRGINIA 23452 TELE: (757)486-4910 FAX: (757)486-4607 REVISED: JAN. 13, 2010tiITY COMMENTS JO 81. 345 P 343 - 00 of /'015;�q'pTH PROPERTY OF �O 1-1= -20"o. 0 FORREST E IVWAh4S � S • ����� � 1o.oe AND �1DY P. flAWAMfi (D. B. 2580, P. 1480) IFFREY D. WWAMS Lic. No. 2045 E. 'Xfj )>: ty11V-jA - N TWO STORY FRAME DWELLING N AC PAD 'VQ �O� S U Rv� (UNDER CONSTRUCTION) OIL TANK EXISTING # 308 EXISTING ONE STORY FRAME Zt, ONE STORY FRAME 9306 1.0' # 310 L0 fp2IT In 0 5.06' M > JWl- M J N N Qd co D W D7 00 o � � 11 193 194 4.(Y0 � � ol L 00 aD U= o of p 3 m N LL GPIN 2418-88-2274' c 19a o v N rW 3< ? z oao a Q H O Z O'er O > PROP. WALK LL Z Ia- 4 0•. n A 1.D (L OQ 50' —200' TO MYRTLE wM /W UNE AVENUE°� PROPOSED .,,,PAVER PAVER WALK SoBRICKX 5, EXISTING 36' WOODEN FENCE O 36' WOODEN FENCE PROPOSED50' PERMEABLE PARKING EDGE OF PAVEMENT ' DROP INLET ASPHALT ROADWAY a 49TH (70') STREET (M. B. 6, P. 107) EXIST. APPROXIMATE LOCATION ' C WATER LINE EXHIBIT PLAT "A" SHOWING PROPOSED RIGHT-OF-WAY ENCROACHMENTS ADJACENT TO LOT 194, HOLLIES FOR ( M. B. 6, P. 107 ) FORREST E. WILLIAMS AND JUDY P. WILLIAMS VIRGINIA BEACH, VIRGINIA SCALE : 1" = 20' SEPTEMBER 15, 2008 JOHN E. SIRINE AND ASSOCIATES, LTD. SURVEYORS -ENGINEERS. PLANNERS 4317 BONNEY ROAD VIRGINIA BEACH, VIRGINIA 23452 TELE: (757)486-4910 FAX: (757)486-4607 REVISED: JAN. 13, 2010tiITY COMMENTS JO 81. 345 P 343 - 00 r CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Appropriate Funds to Pay SPSA Disposal Costs MEETING DATE: February 23, 2010 ■ Background: The FY 2009-10 Public Works Operating Budget includes funding for disposal costs paid to SPSA for the processing of City waste. The amount budgeted is the difference between total anticipated disposal costs and the estimated amount to be reimbursed to the City from SPSA for disposal costs paid at a rate above an agreed upon rate cap. Over the past year, the rate charged by SPSA has increased from $104 per ton to $170 per ton. This, in conjunction with deferring estimated FY 2008-09 and FY 2009-10 SPSA reimbursement revenue, has resulted in the need for an additional appropriation of $7,200,000 to the FY 2009-10 operating budget to cover the increased cost. It is anticipated that this additional appropriation will be reimbursed to the City later in this fiscal year, but the Department of Public Works needs the appropriation to cover the costs until the reimbursement is available. ■ Considerations: The amount requested is funded through the amount due from SPSA. The revenue to be received from SPSA is the past amounts due from FY 2008- 09 and FY 2009-10. ■ Public Information: Public information will be provided through the normal City Council agenda process. ■ Recommendations: Approval of attached ordinance ■ Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/Agency: Management Servi ese City Manager. ( V 1 AN ORDINANCE TO APPROPRIATE FUNDS TO 2 PAY SPSA DISPOSAL COSTS 3 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 4 VIRGINIA: 5 That $7,200,000 is hereby appropriated from SPSA to the FY 2009-10 Public Works 6 Operating Budget to provide additional funding for disposal costs, with a corresponding 7 increase in revenue from SPSA. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2010. Requires an affirmative vote by a majority of all members of the City Council. Approved as to Content: CtiQ Management Services CA11375 R-5 February 12, 2010 Approved as to Legal Sufficiency: cKAOMn4y9lbffice CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Appropriate Funds from the Oyster Heritage Trust Fund MEETING DATE: February 23, 2010 ■ Background: The City of Virginia Beach established an Oyster Heritage Trust Fund for the purpose of collecting donations dedicated to the restoration of oyster habitat and oysters in the Lynnhaven River watershed. The Trust Fund has received a total of $565,683 from private donations to support this goal. In conjunction with the Trust Fund, the Department of Planning and Community Development has developed an Oyster Heritage Plan with the assistance of various agencies of the Commonwealth of Virginia, the U.S. Army Corps of Engineers, NOAA, Lynnhaven River NOW, and the Chesapeake Bay Foundation. $431,539 has been appropriated to date from the Trust Fund to develop the plan and has resulted in the identification of multiple sites in the Lynnhaven River watershed for construction and seeding of oyster reefs. These efforts began in the summer of 2002 and have resulted in the construction of more than 50 acres of oyster habitat. The Lynnhaven River NOW community watershed organization has developed a model oyster shell recycling program in partnership with the City, the first of its kind in the state. The Lynnhaven Oyster Restoration Project was awarded a Presidential Coastal America Award in 2009 as an exemplary successful national habitat restoration project model. ■ Considerations: City staff has been working to develop a cost-sharing arrangement as part of the Oyster Heritage Plan which accomplishes multiple outcomes. First, the completion of previous oyster reef projects has established a sound model for continued future oyster reef restoration efforts in the Lynnhaven watershed. Second, the ongoing oyster heritage plan and strategy represents a significant effort by the City to continue to address restoration of the environmental quality of the Lynnhaven River watershed and shows local commitment to achieving the objectives of the Chesapeake 2000 agreement. This agreement is dedicated to restoring the health of the Bay. Third, this proposed oyster heritage project links directly to a major step forward on continuing this integrated strategy, which has been developed for environmental restoration of the Lynnhaven by working to prioritize efforts at restoration within those areas of the watershed, that exhibit the least severe water quality problems. This project continues the pilot oyster shell education and recycling program initiated in 2007. The pilot program included both the Lynnhaven River NOW community watershed organization and local restaurants, and it aimed to reclaim shells destined for the City landfill for reuse in creating additional oyster habitat after proper curing. The total cost of continuing this project is $25,579. ■ Public Information: Public information will be provided through the normal Council Agenda process. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Age Development City Manager: of Planning and Community 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 AN ORDINANCE TO APPROPRIATE FUNDS FROM THE OYSTER HERITAGE TRUST FUND WHEREAS, the City wishes to provide $25,579 from the Oyster Heritage Trust Fund to support the efforts of increasing oyster habitat in the Lynnhaven River watershed and continuing the oyster shell recycling program being undertaken by Lynnhaven River NOW. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $25,579 is hereby appropriated from the Oyster Heritage Trust Fund to the FY 2009-10 Operating Budget of the Department of Planning and Community Development for increasing oyster habitat in the Lynnhaven River watershed and continuing the Oyster Shell Recycling Program. Requires an affirmative vote by a majority of all of the members of the City Council. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2010. APPROVED AS TO CONTENT APPROVED AS TO LEGAL SUFFICIENCY "a. , -b 1�1 Management Services CA11380 R-2 February 10, 2010 City ttey,s Office u•s� 4` CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Transfer $250,000 within the FY 2009-10 Subscriptions Fund to Pay for Public Safety Air Card Charges MEETING DATE: February23, 2010 ■ Background: Air cards provide mobile Internet capability. For the public safety departments, the air cards are an essential part of safe and timely service delivery. During the most recent budget process, funding for on-going public safety air card expenses was appropriated to the FY 2009-10 Subscriptions Fund. The monthly service charges for the 467 air cards are billed in a consolidated manner and paid by the Communications and Information Technology (ComIT) using moneys from this Fund. Within the Subscriptions Fund, there are two sub -funds: Subscriptions; and Reserve for Contingencies - Regular. As ComIT pays the regular subscription charges, it draws down the balance in the Subscriptions Sub -Fund. The Reserve for Contingencies - Regular Sub -Fund is available for when the Subscriptions Sub -Fund requires replenishment. Presently, there is $400,840 available in the Reserve Sub -Fund. ■ Considerations: The Subscriptions Sub -Fund requires this transfer of funds to pay service charges. Presently, there are sufficient funds for this transfer in the Reserve for Contingencies — Regular Sub -Fund. Without ongoing air card service, the participating departmental computers would not have mobile Internet capabilities. ■ Public Information: Public information will be coordinated through the regular Council agenda process. ■ Recommendation: It is recommended City Council authorize transfer of $250,000 from the Subscription Fund Reserve for Contingencies — Regular within the FY 2009-10 Subscription Fund. ■ Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/Agency: Communications and City Manager: V'' Information Technology 4� 1 2 3 4 5 6 7 8 9 10 11 AN ORDINANCE TO TRANSFER $250,000 WITHIN THE FY 2009-10 SUBSCRIPTION FUND TO PAY FOR PUBLIC SAFETY AIR CARD CHARGES BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $250,000 from the Subscription Fund Reserve for Contingencies — Regular is hereby transferred within the FY 2009-10 Subscription Fund to pay for public safety air card recurring charges. Adopted by the Council of the City of Virginia Beach, Virginia, on the day Of .2010. APPROVED AS TO CONTENT: Y) C" c - r) " EZ�R ' Management Services CA11378 R-2 February 10, 2010 APPROVED AS TO LEGAL SUFFICIENCY: 11�1 Dzo Ci A y s Office K. PLANNING Application of GEORGE R. and JANE C. WEBB for Nonconforming Structures at 110 74`h Street to renovate a single family dwelling and a garage apartment. DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 2. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC for Modification of Proffers (previously approved by City Council on September 8, 2009) for a change in the building site layout at 2236-2240 General Booth Boulevard DISTRICT 7 — PRINCESS ANNE DEFERRED RECOMMENDATION FEBRUARY 9, 2010 APPROVAL 3. Application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re a non-commercial community pier (private use) at 1809 Estates Court, 2933 and 2936 Estates Drive. DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 4. Application of WINNER'S REAL ESTATE HOLDINGS, LLC, for a Conditional Use Permit re a body shop consisting of motor vehicle sales, rental, service and repair at 5070 Virginia Beach Boulevard. DISTRICT 4 - BAYSIDE RECOMMENDATION APPROVAL 5. Application of STRAWBRIDGE ANIMAL CARE/FAT BOYZ, INC. for a Conditional Use Permit re a Veterinary establishment for animal rehabilitative therapy at Suite 102, 2584 Aviator Drive. DISTRICT 6 - BEACH RECOMMENDATION APPROVAL 6. Application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at 501 Virginia Beach Boulevard. DISTRICT 6 - BEACH RECOMMENDATION APPROVAL 7. Application of AUTOBELL CAR WASH, INC./MESSER 1060 INDEPENDENCE BOULEVARD, LLC, for a Conditional Use Permit re an automated car wash at 1060 and 1064 Independence Boulevard. DISTRICT 4 - BAYSIDE RECOMMENDATION APPROVAL Applications of KARINPHILLIP, INC./PARR PROPERTIES, LLC at 114 South Witchduck Road (Strategic Growth Area-SGA4-Pembroke) re a tattoo parlor: DISTRICT 2 - KEMPSVILLE a. Change of Zoning District Classification from I-1 Light Industrial District to Conditional B-2 Community Business District b. Conditional Use Permit STAFF RECOMMENDS PLANNING COMMISSION RECOMMENDS APPROVAL DENIAL 9. Application of MORRIS H. FINE and ROBERT F. HAGANS, SPECIAL COMMISSIONERS, for a Change of Zoning District Classification from R-15 Residential District, AG -1 and AG -2 Agricultural Districts to Conditional R-15 Residential District at 3807 and 3809 Indian River Road to develop the site with single- family dwellings. DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL 10. Application of AUTOZONE DEVELOPMENT CORPORATION/LAND and BUILDING IV, L.C. for Modification of Proffers (approved by City Council on March 28, 2000 and May 24, 2005) at 5221 Indian River Road. DISTRICT 1 — CENTERVILLE RECOMMENDATION APPROVAL NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the C!;amber at City Hall, Municipal Center, 2,,401 Courthouse Drive, Tuesday, February 23, 2010, at 6:00 p.m. The following opplications will be heard: CENTERVILLE DISTRICT Autozone Development Corporation Land & Building IV, L.C. Application: Modificafion of Qonditio94 (approved by City Courcil on March ).8, 2000 and May 24, 2005) at 5221 Incian River Road. 'Norris H. Fine and Robert F. Hagans, Special Commissioners, Application: Change of Zoning District Cla Lification from R-15 Residential, AG 1 and AG -2 Agricultural to Conditional R-15 Residential at 3807 and 3,309 Indian River Road (GPINs 1474807178; 1474904146: 1474907314). Comprehensive Plan: Suburban Area. Purpose: single-family dwellings. LYNNHAVEN DISTRICT George R. Webb and Jane C. Webb Application: Nonconforming Structures at 110 74th Street. 'Nest Neck Properties, Inc.; Robert Zirpoli Application: Conditional Use Permit for a noncommercial community pier private use) at 1809 Estates Court and 2933 and 2936 Estates Drive. BAYSIDE DISTRICT Winner's Real Estate Holdings, LLC application: Conditional - Use PeMit for rotor vehicle sales, rental, service and body shop at 5070 Virginia Beach Boulevard. Autobell Car Wash, Inc./Messer 1060 Independence Boulevard, LLC Application: ronditionai UsePerm' for a car wash at 1060&0 & 1064 Independence Boulevard. BEACH DISTRICT Strawbridge Animal Care/Fat Boyz, Inc. Application: Conditlonal Use Permit for a .eterinary establishment at 2584 Aviator Drive, Suite 102. Tami Walker Mook Application: Conditional Ugg_ Permit for small engine repair at 501 Virginia Beach Boulevard. KEMPSVILLE DISTRICT Karinphillip, Inc./Parr Properties, LLC Application: Change of Zoning Distript Classification, 1.1 Light Industrial to Conditional B-2 Community Business at 114 riouth Witchduck Road. Comprehensive Plan: Strategic Growth Area 4 - Pembroke. Purpose: operation of a tattoo parlor. <annphiilip, Inc./Parr Properties, LLC Application: CenO�itional ase Fermit for a tattoo parlor at 114 South Witchduck Road. All aiterested parties are invited to attend. Ruth Hodges Fraser, MMC City Clerk Copies of the proposed ordinances, resolutions and amendments are on file and may be examined in the Department of Plarning or unline at nitpj; www.ybgov.Cont/DC For information call 385-4621. If you are physically disabled or visually impaired and need assistance at this r,,eebng, please call the CITY CLERK'S OFFICE at 3854303. J,,cor. F-$ 7 R 34`, ,�rio 200799'0 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Authorizing the Enlargement of a Nonconforming Use on Property Located at 110 74th Street Owned by George R. Webb and Jane C. Webb. LYNNHAVEN DISTRICT MEETING DATE: February 23, 2010 ■ Background: The applicant requests an enlargement of a nonconforming use. There have been two separate, detached dwelling units on the property since the early 1950s: a single-family dwelling and a garage apartment. In 1952 and 1953, when the units were constructed, the two structures were legal under the regulations at that time. Both units are located on one 7,500 square foot lot; therefore, the two units are now considered to be nonconforming uses, as the Zoning Ordinance requires that each single-family dwelling in the R -5R Resort Residential District be located on a separate parcel. Since the existing lot is only 7,500 square feet in size, it cannot be subdivided into two conforming lots of 5,000 square feet, which is required for a single-family dwelling in the R -5R District. ■ Considerations: This proposal to renovate and add only 600 square feet of floor area to the existing principal structure will actually improve the appearance of the primary structure, as the addition of dormers will add architectural interest. It should be noted that this small addition will necessitate an encroachment into the eight foot side setback on the west side. The addition will not encroach any farther into the setback than what currently exists. At present, the home is setback only 5.22 feet from the eastern property line rather than the required minimum of 8 feet. Both the single-family dwelling and the garage apartment currently lie within the required minimum side yard setback of eight feet, encroaching at 5.22 feet and 4.90 feet respectively. The modifications to the garage are limited to raising the structure approximately seven inches (the levels of the ground around the garage are higher than the existing finished floor elevation, resulting in flooding inside the garage. The applicant does not intend to increase the square footage or modify the exterior of the garage apartment. The submitted plan does not depict any off-street parking spaces. The City Zoning Ordinance requires two parking spaces per unit on the site, each with a minimum dimension of 9 by 18 feet. There is ample room on the property to include these spaces behind the front dwelling and a condition is recommended below that these spaces be shown on the final site plan and be installed. Section 105(d) of the City Zoning Ordinance states that no nonconforming use or structure shall be enlarged, extended, reconstructed, or structurally altered unless the GEORGE AND JANE WEBB Page 2 of 2 City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity." It is Staffs opinion that the proposed changes to the site are preferable to the by -right development of a duplex. ■ Recommendations: Staff concludes that the proposed modification is reasonable, will have a minimal impact, and will be as appropriate to the existing residential neighborhood as the existing non -conforming structure. The design of the proposed modifications blend with the existing structure, and the residential use will remain the same. The request, therefore, is acceptable as submitted, subject to the conditions below. The site shall be redeveloped substantially as shown on the exhibit entitled, "NONCONFORMING USE EXHIBIT FOR WEBB RESIDENCE #110 74TH STREET, VIRGINIA BEACH, VIRGINIA," prepared by WPL, dated January 7, 2010, which has been exhibited to the City Council and is on file in the Planning Department with the addition of two on-site parking spaces per unit as required by the Zoning Ordinance. Said parking spaces may be constructed of pervious materials acceptable to the Zoning Administrator and the spaces shall be depicted on the final site plan. 2. The exterior of the upgraded principal dwelling unit shall substantially adhere to the submitted elevations entitled, "Addition to the Residence of JANE AND GEORGE WEBB," prepared by Covington Hendrix Anderson Architects, dated December 15, 2009, in terms of architectural style and building materials, which have been exhibited to the City Council and are on file in the Planning Department. 3. The property shall be limited to two dwelling units, as depicted on the plan identified in Condition 1 above. ■ Attachments: Staff Review and Disclosure Statement Resolution Recommended Action: Approval. Submitting DepartmenVAgency: Planninng, Departmen City Manager: V , �" ni- G Map L-3 Mp N!!e S.).George R. & Jane C. Webb RSR RSR a e R5R R5R_ RSR ` R5R Non•conlomng use REQUEST: Enlargement of a Nonconformin-g Use ADDRESS/ DESCRIPTION: 110 74"Street February 23, 2010 City Council Meeting APPLICANT & PROPERTY OWNERS: GEORGE W. WEBB & JANE C. WEBB STAFF PLANNER: Carolyn A.K. Smith GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 24196676560000 LYNNHAVEN 7,500 square feet Less than 65 dB DNL SUMMARY OF REQUEST The applicant requests an enlargement of a nonconforming use. There have been two separate, detached dwelling units on the property since the early 1950s: a single-family dwelling and a garage apartment. In 1952 and 1953, when the units were constructed, the two structures were legal under the regulations at that time. Both units are located on one 7,500 square foot lot; therefore, the two units are now considered to be nonconforming uses, as the Zoning Ordinance requires that each single-family dwelling in the R -SR Resort Residential District be located on a separate parcel. Since the existing lot is only 7,500 square feet in size, it cannot be subdivided into two conforming lots of 5,000 square feet, which is required for a single-family dwelling in the R -5R District. The owners of the property wish to renovate and add 600 square feet of floor area to the existing principal structure (the single-family dwelling) and to extend the chimney. A new roof with the addition of three dormers on the front of the dwelling and a shed dormer with three sets of windows on the rear of the dwelling are proposed. New windows and shutters are proposed on the rear of the dwelling with an GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 1 exterior of yellow vinyl siding to complement the existing siding. The applicant also proposes to upgrade the interior but does not intend to increase the square footage or modify the exterior of the garage apartment. The garage is also proposed to be raised approximately seven inches as the level of the ground around the structure is actually higher than the existing finished floor elevation, and as a result, flooding often occurs. The expansion will not increase the footprint of the house; however, this small addition will necessitate an encroachment into the eight -foot side setback on the west side, in line with the structure below. At present, the home is setback 5.22 feet from the eastern property line and the garage apartment is setback 4.90 feet from the western property line. The side yard setback for the R -5R Residential District is eight feet. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Single-family dwelling and a garage apartment SURROUNDING LAND North: . 74" Street USE AND ZONING: . Duplex / R -5R Residential District South: . Single-family dwelling / R -5R Residential District East: . Single-family dwelling / R -5R Residential District West: . Single-family dwelling / R -5R Residential District NATURAL RESOURCE AND The site is within the Atlantic Ocean watershed. There do not appear to CULTURAL FEATURES: be any significant environmental or cultural features on the site. EVALUATION AND RECOMMENDATION Staff recommends approval of this request. The R -5R Residential District permits either single-family dwellings or duplex dwellings on a parcel. The applicant could opt, by right, to construct one duplex, with two dwelling units, thereby netting the same density. The probable result would be a narrow, three-story duplex with a very long facade facing the adjacent parcels. A duplex building, in Staffs opinion, would be out of character with many of the older, beach cottages typical of the North End neighborhood. The applicant's proposal will result in a continuation of the existing two units on this one parcel rather than an out -of -scale duplex is similar to a development option available for property owners in the Old Beach neighborhood, south of 31 st Street. In the Old Beach area, an overlay district allows this type of development on a site provided certain design criteria are met. GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 2 This proposal to renovate and add only 600 square feet of floor area to the existing principal structure will actually improve the appearance of the primary structure, as the addition of dormers will add architectural interest. It should be noted that this small addition will necessitate an encroachment into the eight foot side setback on the west side. The addition will not encroach any farther into the setback than what currently exists. At present, the home is setback only 5.22 feet from the eastern property line rather than the required minimum of 8 feet. Both the single-family dwelling and the garage apartment currently lie within the required minimum side yard setback of eight feet, encroaching at 5.22 feet and 4.90 feet respectively. The modifications to the garage are limited to raising the structure approximately seven inches (the levels of the ground around the garage are higher than the existing finished floor elevation, resulting in flooding inside the garage. The applicant does not intend to increase the square footage or modify the exterior of the garage apartment. The submitted plan does not depict any off-street parking spaces. The City Zoning Ordinance requires two parking spaces per unit on the site, each with a minimum dimension of 9 by 18 feet. There is ample room on the property to include these spaces behind the front dwelling and a condition is recommended below that these spaces be shown on the final site plan and be installed. Section 105(d) of the City Zoning Ordinance states that no nonconforming use or structure shall be enlarged, extended, reconstructed, or structurally altered unless the City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity." It is Staffs opinion that the proposed changes to the site are preferable to the by -right development of a duplex. Staff concludes that the request is reasonable, as the density will remain the same as the by -right option, the proposed modifications will have a minimal impact, and will be as appropriate or more appropriate to the district as the existing non -conforming use and is recommended for approval subject to the conditions below. CONDITIONS The site shall be redeveloped substantially as shown on the exhibit entitled, "NONCONFORMING USE EXHIBIT FOR WEBB RESIDENCE #110 74TH STREET, VIRGINIA BEACH, VIRGINIA," prepared by WPL, dated January 7, 2010, which has been exhibited to the City Council and is on file in the Planning Department with the addition of two on-site parking spaces per unit as required by the Zoning Ordinance. Said parking spaces may be constructed of pervious materials acceptable to the Zoning Administrator and the spaces shall be depicted on the final site plan. 2. The exterior of the upgraded principal dwelling unit shall substantially adhere to the submitted elevations entitled, "Addition to the Residence of JANE AND GEORGE WEBB," prepared by Covington Hendrix Anderson Architects, dated December 15, 2009, in terms of architectural style and building materials, which have been exhibited to the City Council and are on file in the Planning Department. 3. The property shall be limited to two dwelling units, as depicted on the plan identified in Condition 1 above. GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 3 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 application are valid or any structures may be occupied. 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. GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 4 AERIAL OF SITE LOCATION GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 5 PROPOSED FRONT BUILDING ELEVATION GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 7 PROPOSED REAR BUILDING ELEVATION GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page PROPOSED SIDE BUILDING ELEVATION GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 9 VA W1008 3r4 fVA GQ4; Wt.: 0 [t 99am 3pNono aNv 3Nvr P ��a � QW 04 SPY BUILDING ELEVATIONS AND FLOOR PLANS GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 10 . Y 5 l � �flY '� y � ® r• � -.y BUILDING ELEVATIONS AND FLOOR PLANS GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 10 . Y l i e d ♦ � k . 11 �t � . p � aQVR x : �s a BUILDING ELEVATIONS AND FLOOR PLANS GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 10 . Y l i p � aQVR x : '��•.. £ .a of _� Qt. p d 3 BUILDING ELEVATIONS AND FLOOR PLANS GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 10 Map Not to Scale r R5 l` - R5R R5 1 � ST t -13#90 5 Non -Conforming Use 1 05/12/2009 1 NCU I Granted ZONING HISTORY GEORGE AND JANE WEBB February 23, 2010 City Council Meeting Page 11 QDISCLOSURE STATEMENT EA 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) George R. Webb & Jane C. Webb, husband and wife 2. List all businesses that have a parent -subsidiary' or affiliated business entity relationship with the applicant: (Attach list if necessary) X Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2. List all businesses that have a parent -subsidiary' or affiliated business entity relationship with the applicant: (Attach list if necessary) Check here if the property owner is NOT a corporation, partnership, firm: business, or other unincorporated organization. & See next page for footnotes ftn-Coniornng Use AppkwAfm Page �F8�n0�a1��a9�� iev€ wl 9 1.tcA 04 DISCLOSURE STATEMENT GEORGE AND JANE WEBB February 23, 2010 City Council -M "12 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will pride services with respect to the requested property use, including but not limited to the providers of architei services, real estate services, financial services, accounting servers, and legal services: (Attach list if necessary) Sykes, Bourdon, Ahem & Levy, P.C. WPL Covington Hendrix & Anderson, Architects '''Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent-subsidiary relationship, that exists when (i) one business entity has a controifing ownership interest In the other business entity, (11) a controlling owner in one entry is also a controlling owner in the other entity, or (111) there Is shared management or control between the business entities. Factors that should be consklered.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 some offices or employees or otherwise share activities, resound or personnel on a regular basis; or there is otherwise a close working relationship between the entities," See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. i understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, i am responsible for obtaining and posting the required sign on tA subject property at least 30 days prior to the scheduled public hearing accordin the instructions In this package. George R. Wpb App!' t/Property Owner's gnature Ptini Name Jane C. Webb >o4nees soma a Print Nanus N-4 papsafe DISCLOSURE STATEMENT GEORGE AND JANE February 23, 2010 City Council � rage °':1 3 :: 1 A RESOLUTION AUTHORIZING THE 2 ENLARGEMENT OF A NONCONFORMING 3 USE ON PROPERTY LOCATED AT 110 74TH 4 STREET OWNED BY GEORGE W. WEBB 5 AND JANE C. WEBB 6 7 WHEREAS, George W. Webb and Jane C. Webb (hereinafter the "Applicants") 8 have made application to the City Council for authorization to enlarge a nonconforming 9 use having the address of 110 74th Street, in the R -5R Resort Residential District, by 10 enlarging the principal structure and elevating the garage apartment; and 11 12 WHEREAS, the said uses are nonconforming as they are located on the same 13 parcel, which is not allowed in the R -5R Zoning District; and 14 15 WHEREAS, the uses were commenced prior to the adoption of the applicable 16 regulations; and 17 18 WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the 19 enlargement of a nonconforming use is unlawful in the absence of a resolution of the 20 City Council authorizing such action upon a finding that the proposed use, as enlarged, 21 will be equally appropriate or more appropriate to the zoning district than is the existing 22 use; 23 24 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 25 VIRGINIA BEACH, VIRGINIA: 26 27 That the City Council hereby finds that the proposed use, as enlarged, will be 28 equally appropriate to the district as is the existing use under the conditions of approval 29 set forth hereinbelow. 30 31 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 32 BEACH, VIRGINIA: 33 34 That the enlargement of the nonconforming use is hereby authorized, upon the 35 following conditions: 36 37 1. The site shall be redeveloped substantially as shown on the exhibit entitled, 38 "NONCONFORMING USE EXHIBIT FOR WEBB RESIDENCE #110 74TH 39 STREET, VIRGINIA BEACH, VIRGINIA," prepared by WPL, dated January 7, 40 2010, which has been exhibited to the City Council and is on file in the 41 Planning Department with the addition of two on-site parking spaces per unit 42 as required by the Zoning Ordinance. Said parking spaces may be 43 constructed of pervious materials acceptable to the Zoning Administrator and 44 the spaces shall be depicted on the final site plan. 45 46 2. The exterior of the upgraded principal dwelling unit shall substantially adhere 47 to the submitted elevations entitled, "Addition to the Residence of JANE AND 48 49 50 51 52 53 54 55 56 57 GEORGE WEBB," prepared by Covington Hendrix Anderson Architects, dated December 15, 2009, in terms of architectural style and building materials, which have been exhibited to the City Council and are on file in the Planning Department. 3. The property shall be limited to two dwelling units, as depicted on the plan identified in Condition 1 above. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2010. APPROVED AS TO CONTENT: CA11383 R-1 February 10, 2010 APPROVED AS TO LEGAL SUFFICIENCY: 1 - J " �N 'dim City Attorney's Office Item V-L.S. PLANNING -45 - Item 45 - ITEM # 59199 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of THE REBKEE COMPANY for a Change of Zoning District Classification from 0-1 Office District and R-20 Residential District to Conditional B-2 Community Business District re office and retail development at 2236 and 2240 General Booth Boulevard ORDINANCE UPON APPLICATION OF THE THE REBKEE COMPANY, CHANGE OF ZONING DISTRICT CLASSIFICATION, 0-1 OFFICE DISTRICT AND R-20 RESIDENTIAL DISTRICT TO CONDITIONAL B-2 COMMUNITY BUSINESS DISTRICT, 2236 AND 2240 GENERAL BOOTH BOULEVARD 7.09091228 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of the THE REBKEE COMPANY, Change of Zoning District Classification, 0-1 Office District and .R-20 Residential District to Conditional B-2 Community Business District, 2236 and 2240 General Booth Boulevard (GPIN # 24140677150000:24140676840000). DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made apart of the record. This Ordinance shall be effective in accordance with .Section 107 (n of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Eighth of September, Two Thousand Nine Voting. 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley. Vice Mayor Louis R. Jones. Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None Ian K -I I rin a - - 'E-1 I I Map Not to Scale I tic IMC UKCC k-, Um B2BlA 1A R20 *1 R20 Conditional Zoning Change from R-20; 0-1; Conditional 0-1 to B2 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: THE REBKEE COMPANY / JONES REAL ESTATE INVESTMENT COMPANY, LLC, Modification of Conditions, previously approved by City Council on September 8, 2009, 2236 and 2240 General Booth Boulevard.. PRINCESS ANNE DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The City Council deferred this item at February 9 at the request of the applicant, who had a scheduling conflict for that meeting. The applicant is requesting a modification to the proffer agreement for the development of the site. The applicant desires modification to Proffer 1 with regard to the site development plan. The requested modification will allow a linear commercial strip -style building in lieu of the originally proffered square box type of building. ■ Considerations: The approved proffered plan depicts a 12,000 square foot box -shaped building. Parking is located along the front and rear of the building with a drive aisle along the southern side of the building. The proposed use is office and retail. The applicant did not proffer a specific elevation for the building with the original Change of Zoning, but did proffer that the building would be consistent with the adjacent commercial center currently under construction (Proffer 2). The requested modification to the proffered site plan depicts an 11,500 square foot rectangular building of seven (7) units. Parking is dispersed on three sides of the building with landscaping depicted along the southern side of the building. The proposed will be the office and retail, the same as in the original. While Proffer 2 remained the same in its language form, the applicant did proffer an elevation which can be found on Page 11 of this report. The applicant is also modifying proffers associated with Changes of Zoning granted in January 1992 and August 1995 on sites where an ingress -egress easement was provided along the rear of the subject sites and the site immediately south. The intent was to provide access to these parcels from the rear rather than having direct access to or from General Booth Boulevard. The site immediately south of these sites is developed with a day care center and has The Rebkee Company Page 2 of 3 direct access to General Booth Boulevard. With the Change of Zoning of the subject sites in 2009, access was shown at a shared entrance to the north. As a result of that access and the development of the day care center to the south with its separate access point to General Booth Boulevard, the ingress -egress easement along the rear of the parcels is not as critical as it was for the type of development anticipated in 1992 and 1995. The applicant has diligently worked with staff to insure the design of the sites have a single entrance from General Booth Boulevard and are well-connected to the developing sites to the north and east of the properties. Sidewalks are provided throughout the sites, connecting to the adjacent retail and multi -family development. Landscaped areas and enhanced stormwater management facilities throughout all of the developments provide seating and walking amenities. Berming and landscaping along the street frontage meets design guideline criteria, adding a quality visual amenity to the site. The proposed buildings will be compatible with the developing mixed-use project adjacent to the site. There was no opposition to the request. ■ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council as proffered. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: � , . 16 January 13, 2010 Public Hearing APPLICANT: THE REBKEE COMPANY PROPERTY OWNER: JONES REAL ESTATE INVESTMENT n4odlr;caro^ o. PuA°rn COMPANY, L.L.C. STAFF PLANNER: Faith Christie REQUEST: Modification of Conditional Change of Zoning approved by the City Council on September 8, 2009 ADDRESS / DESCRIPTION: 2236 and 2240 General Booth Boulevard GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 24140677150000; PRINCESS ANNE 1.921 acres 65-70 dB DNL / Sub -Area 2 24140676840000 SUMMARY OF REQUEST The applicant is requesting a modification to the proffer agreement for the development of the site. The applicant desires modification to Proffer 1 with regard to the site development plan. The approved proffered plan depicts a 12,000 square foot box -shaped building. Parking is located along the front and rear of the building with a drive aisle along the southern side of the building. The proposed use is office and retail. The applicant did not proffer a specific elevation for the building with the original Change of Zoning, but did proffer that the building would be consistent with the adjacent commercial center currently under construction (Proffer 2). The requested modification to the proffered site plan depicts an 11,500 square foot rectangular building of seven (7) units. Parking is dispersed on three sides of the building with landscaping depicted along the southern side of the building. The proposed will be the office and retail, the same as in the original. While THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 1 Proffer 2 remained the same in its language form, the applicant did proffer an elevation which can be found on Page 11 of this report. The applicant is also modifying proffers associated with Changes of Zoning granted in January 1992 and August 1995 on sites where an ingress -egress easement was provided along the rear of the subject sites and the site immediately south. The intent was to provide access to these parcels from the rear rather than having direct access to or from General Booth Boulevard. The site immediately south of these sites is developed with a day care center and has direct access to General Booth Boulevard. With the Change of Zoning of the subject sites in 2009, access was shown at a shared entrance to the north. As a result of that access and the development of the day care center to the south with its separate access point to General Booth Boulevard, the ingress -egress easement along the rear of the parcels is not as critical as it was for the type of development anticipated in 1992 and 1995. Proffer History The Conditional Rezoning from 0-1 Office District to Conditional B-2 Community Business District was approved by the City Council on September 8, 2009. The Conditional Rezoning has five proffers: PROFFER 1: The development of the Property shall be in substantial conformance with the Site Plan titled "Jones Real Estate Investment Site Plan", dated April 22, 2009, prepared by Kimley-Horn & Associates, which plan has been exhibited to the City Council and is on file with the Planning Department of the City of Virginia Beach (the "Site Plan"). PROFFER 2: The buildings constructed on the Property shall be constructed so as to be architecturally compatible with the building elevations titled "Atlantic Gardens Center Proposed Retail Center" and "Atlantic Gardens Center Revised Design" dated May 10, 2007 between AGC Acquisition, LLC and Booth Ferrell Associates and the City of Virginia Beach and recorded in the Clerk's Office as Instrument No. 20080125000092840, which elevations has been exhibited to the City Council and are on file with the Planning Department of the City of Virginia Beach (the "Building Elevations"). The final Building Elevations shall be approved administratively by the City of Virginia Beach Planning Director. PROFFER 3: The property shall be used for the following principal uses and their accessory uses and structures: a. Business offices; b. Medical and dental offices and clinics and laboratory, legal, engineering, architectural and other professional offices; accounting and bookkeeping offices; c. Retail drug store; d. All retail and other commercial and accessory uses and all ancillary uses as permitted (subject to such applicable rules regarding special exceptions or special use permits as may be applicable to a particular use) within the B-2 zoning district, but excluding business or vocational schools, boat and motor vehicle sales or service, childcare centers, commercial parking lots or parking structures, drive-thru eating or drinking establishments, grocery stores, convenience stores, and storage garages. PROFFER 4: Access to the Property from General Booth Boulevard shall be in accordance with the Deed of Easement and Agreement (the "Easement Agreement"), dated December 16, 1991, and recorded in the Clerk's Office in Deed Book 3055, at Page 2018, except that, notwithstanding the terms of the Easement Agreement, so long as any portion of the Property is used for residential purposes, access to General THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 2 Booth Boulevard from said portion of the Property used for residential purposes shall be allowed at the curb cut existing on the date hereof. PROFFER 5: These proffers supersede all previously recorded proffers affecting the Property or the use thereof as follows: a. Conditions and restrictions as set forth in Agreement with the City of Virginia Beach, Virginia, dated August 30, 1991, recorded February 7, 1992, in Deed Book 3055, page 2027; and b. Conditions and restrictions as set forth in Agreement with the City of Virginia Beach, Virginia, dated April 10, 1995, recorded August 10, 1995, in Deed Book 3526, page 984. Notwithstanding the effect of such proffers being superseded, all terms and conditions as set forth in the Easement Agreement shall remain in effect. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Dental office and a single-family dwelling SURROUNDING LAND North: Proposed Retail and multifamily development, Red Mill Landing USE AND ZONING: / Conditional B-4 Mixed Use South: . Daycare facility / Conditional 0-1 Office East: . Proposed Retail and multifamily development, Red Mill Landing / Conditional B-4 Mixed Use West: . General Booth Boulevard NATURAL RESOURCE AND There are no natural resources or known cultural features associated CULTURAL FEATURES: with the site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): The site is located on the east side of General Booth Boulevard south of its intersection with Nimmo Parkway. General Booth Boulevard is a four -lane minor urban arterial, and this segment is shown as a divided, access - controlled, 165 -foot wide right-of-way with bikeway and scenic buffer on the Master Transportation Plan Map. This roadway segment is included in the City's 2008 Congested Roadways list, meaning the current traffic volume exceeds the capacity of the roadway. Nimmo Parkway near the project site is a four -lane major urban arterial, and is shown as a four- to six -lane parkway with variable -width (110 to 165 feet) right-of-way on the Master Transportation Plan. In the vicinity of this application, a Capital Improvement Project (CIP) to complete improvements on Nimmo Parkway between General Booth Boulevard and Holland Road is currently in the design phase, with right-of-way acquisition complete, and construction has been estimated to begin in 2011. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 3 TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic General Booth 41,900 ADT 22,800 ADT Existing Land Use —1,057 Boulevard ADT (106 PM Peak Hour) Proposed Land Use 3— No Nimmo Parkway 12,300 ADT' 27,300 ADT' Change Average Daily Trips s as defined by 1.92 acres of B-2 Business property Sas defined by same WATER: This site must connect to City water. There are 12 -inch and 16 -inch City water mains in Nimmo Parkway in front of the site, and a 16 -inch city water main in General Booth Boulevard in front of the site. SEWER: There is a 42 -inch Hampton Roads Sanitary District force main in Nimmo Parkway and a six-inch City force main in General Booth Parkway fronting the site. The six-inch City force main in General Booth Boulevard is at capacity. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the submitted proffers. The proffers are provided below. Comprehensive Plan: The Comprehensive Plan designates this site as being within the Suburban Area. The General Planning Principles for the Suburban Area include preservation of neighborhood quality, creation and protection of open spaces, and connecting suburban mobility. Evaluation: In the decade of the 1990s, staff and property owners in this portion of the General Booth Boulevard Corridor recognized the emerging mix of uses and services required by the residents of the area. Cognizant of that, staff took care with rezoning requests to implement moderate uses of the properties along this section of roadway. These sites were rezoned in the 1990s to Conditional Office district with proffers limiting the uses to business, medical, and dental offices, and clinics and laboratories. Access to the properties was limited as well, maintaining the residential nature of the area at the time. Later changes in zoning in the area have changed the nature of the corridor. Properties to the north, east, and south of the sites are developing with a mixed use of retail and multi -family; properties to the west of the site, across General Booth Boulevard, are developed with a mixed use of offices and multi -family. The site to the south has been developed as a child care education center. Staff concludes, therefore, that this request to modify the proffer agreement on the subject site for the purpose of developing the site with an office / retail strip center is consistent with the emerging mix of uses in the immediate area, providing additional services to the already developed neighborhoods in the area and those citizens living in the southern portion of the City. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 4 The applicant has diligently worked with staff to insure the design of the sites have a single entrance from General Booth Boulevard and are well-connected to the developing sites to the north and east of the properties. Sidewalks are provided throughout the sites, connecting to the adjacent retail and multi -family development. Landscaped areas and enhanced stormwater management facilities throughout all of the developments provide seating and walking amenities. Berming and landscaping along the street frontage meets design guideline criteria, adding a quality visual amenity to the site. The proposed buildings will be compatible with the developing mixed-use project adjacent to the site. Staff recommends approval of the request subject to proffers listed below. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: The development of the Property shall be in substantial conformance with the Site Plan titled "Jones Real Estate Investment Site Plan", dated September 25, 2009, prepared by Kimley-Horn & Associates, which plan has been exhibited to the City Council and is on file with Planning Department of the City of Virginia Beach (the "Site Plan"). PROFFER 2: The buildings constructed on the Property shall be constructed so as to be architecturally compatible with the building elevations titled "Atlantic Gardens Center Proposed Retail Center" and "Atlantic Gardens Center Revised Design" dated May 10, 2007 between AGC Acquisition, LLC and Booth Ferrell Associates and the City of Virginia Beach and recorded in the Clerk's Office as Instrument No. 20080125000092840, which elevations has been exhibited to the City Council and are on file with the Planning Department of the City of Virginia Beach (the "Building Elevations"). The final Building Elevations shall be approved administratively by the City of Virginia Beach Planning Director. PROFFER 3: The property shall be used for the following principal uses and their accessory uses and structures: a. Business offices; b. Medical and dental offices and clinics and laboratory, legal, engineering, architectural and other professional offices; accounting and bookkeeping offices; c. Retail drug store; d. All retail and other commercial and accessory uses and all ancillary uses as permitted (subject to such applicable rules regarding special exceptions or special use permits as may be applicable to a particular use) within the B-2 zoning district, but excluding business or vocational schools, boat and motor vehicle sales or service, childcare centers, commercial parking lots or parking structures, drive-thru eating or drinking establishments, grocery stores, convenience stores, and storage garages. PROFFER 4: Access to the Property from General Booth Boulevard shall be in accordance with the Site Plan, notwithstanding the terms of that Deed of Easement and Agreement (the "Easement Agreement"), dated THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 5 December 16, 1991, and recorded in the Clerk's Office in Deed Book 3055, at Page 2018, as the same may be amended from time to time or terminated. PROFFER 5: These proffers supersede all previously recorded proffers affecting the Property or the use thereof as follows: a. Conditions and restrictions set forth in Agreement with City of Virginia Beach, Virginia, dated August 30, 1991, recorded February 7, 1992, in Deed Book 3055, page 2027; and b. Conditions and restrictions as set forth in Agreement with City Of Virginia Beach, Virginia, dated April 10, 1995, recorded August 10, 1005, in Deed Book 3526, page 984. STAFF COMMENTS: The submitted preliminary site plan depicts a coordinated development of the site in terms of design, landscaping, parking layout, and traffic control and circulation within the site. Proffer 2 insures the building will be compatible with the developing retail center to the north of the site. Proffer 3 insures the uses on the site will be compatible with the surrounding uses. The City Attorney's Office has reviewed the proffer agreement dated October 26, 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 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 Change of Zoning are valid. 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. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 6 AERIAL OF SITE LOCATION THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 7 a�uncrr9�iarxtaaxa �+�awisa x a, sa till i 494v pue f,=(� 34r.iS97F3Y1S3�tUP r,� PROPOSED SITE PLAN THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 9 PROPOSED BUILDING ELEVATION THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 10 RENDERING OF BUILDING PROFFERED FOR ADJACENT SITE THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item, 16 Page 11 1 , 9/8/09 Rezoning (Conditional 0-1 Office and R- Approved 20 Residential to Conditional B-2 Community Business) 8/8/95 Rezoning (Rezoning (R-20 Residential to Approved Conditional 0-1 Office) 1/28/92 Rezoning (R-20 Residential to Conditional Approved O-1 Office) 11/4/85 Rezoning (R-3 Residential to B-2 Withdrawn Business 2. 1/22/08 Rezoning (AG -2 Agricultural to Conditional Approved B-4 Mixed Use) 8/18/86 Rezoning (R-3 Residential I to AG -2 Approved Agricultural) and a Conditional Use Permit Retail Sales 3. 11/22/05 Rezoning (Conditional 0-1 Office to Approved Conditional 0-1 Office) 11/23/93 Rezoning R-20 Residential to Conditional Approved ZONING HISTORY THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item, 16 Page 12 ZONING HISTORY THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 13 O-1 Office 4. 6/25/90 Conditional Use Permit Church Addition Approved 5 5/25/99 Rezoning (AG -1 and AG -2 Agricultural Approved and R-20 Residential to Conditional 0-1 Office) and Rezoning (AG -1 and AG -2 Agricultural and R-20 Residential to Conditional A-18 Apartment) ZONING HISTORY THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 13 0 COP:) O 10MMEN4 Emmoll May A O V O Mm==11 A O 1= 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) The Rebkee Company - 15871 City View Drive, Suite 300, Midlothian, VA 23113 Kevin McFadden, Rob Hargett, Dan Hargett 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) None ❑ 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) Jones Real Estate Investment Company, LLC, a Virginia Limited Liability Company Dr. David L. Jones, Managing Member 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) None - there are no businesses that have a parent -subsidiary or affiliated business arrangement with the property owner. ❑ 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 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? Modification of Conditions Application Page 10 of 11 Revised 713107 THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 14 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal rvices: (Attach list if necessary) Civil Enaineer - Kimlev-Horn and Associates, Inc. Architect - NORR LLC Legal - Kaufman & Canoles Contract General Contractor - The Breeden Company Attorney at Law - Edward S. Garcia Jr. k Contract Administrative Services - Michael F. Galardi ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and vi a site for purposes of processing and evaluating this application. Jason W. Chinnis Appli s Signature Print Name David L. Jones, Managing Member Property Owner's Signatu (if different than applicant) Print Name Modification of Conditions Application Page 11 of 11 Revised 7/312007 THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC Agenda Item 16 Page 15 Item #16 The Rebkee Company Modification of Conditions 2236 & 2240 General Booth Boulevard District 7 Princess Anne January 13, 2010 CONSENT Jay Bernas: The next matter on the agenda is item 16. This is an application of the Rebkee Company for a Modification of Conditions previously approved by City Council on September 8, 2009, on property located at 2236 and 2240 General Booth Boulevard, District 7, Princess Anne. Is there a representative on this application? Randy Royal: Good afternoon. For the record, I'm Randy Royal with Kimley-Horn and Associates representing the Rebkee Company. There was one question in the pre -briefing about site plan that we have clarified with staff, and they are okay with that. Of course, we are okay with the conditions. Thank you. Jay Bernas: Is there any opposition to this matter being placed on the consent agenda? Hearing none, the Chairman has asked Don Horsley to please review this application. Donald Horsley: Okay. Thank you. The applicant is requesting a modification to the proffer agreement for the development of the site. The applicant desires modification to Proffer 1 with regard to the site plan approved with the 12,000 square foot box -shaped building. Parking is located along the front and rear of the building with a side aisle along the southern side of the building. The proposed use is office and retail. The applicant did not proffer a specific elevation of the building with the original Change of Zoning, but did proffer the building would be consistent with the adjacent commercial center currently under construction. The requested modification to the site plan depicts an 11,500 square foot rectangular building of seven (7) units. Parking is dispersed on three sides with landscaping. Proffer 2 remained the same in the language, and the applicant did proffer an elevation. There were no objections to this, and staff was in favor of this application, so we have placed it on the consent agenda. Thank you. Jay Bernas: Thank you Commissioner Horsley. I would like to make a motion to approve agenda item 16. Donald Horsley: Second. Joseph Strange: A motion has been made and seconded to approve item 16. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved item 16. Ed Weeden: What was the recommendation, approval? Janice Anderson: Yes. Ed Weeden: By whom? Joseph Strange: A motion by Ron and seconded by Jan. AYE 11 NAY 0 ABS 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has approved the application of Morris H. Fine and Robert F. Hagans, Special Commissioners. In Reply Refer To Our File No. DF -7591 TO: Mark D. Stiles \ FROM: B. Kay Wils �r g9 CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: February 11, 2010 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; The Rebkee Company The above -referenced conditional zoning application is scheduled to be heard by the City Council on February 23, 2010. 1 have reviewed the subject proffer agreement, dated October 26, 2009 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure / cc: Kathleen Hassen ✓ This Document Prepared by: Kaufman & Canoles AMENDED AND RESTATED AGREEMENT THIS AMENDED AND RESTATED AGREEMENT (the "Agreement") is hereby entered into as of this 26th day of October, 2009 (the "Effective Date"), by and between JONES REAL ESTATE INVESTMENT COMPANY, LLC, a Virginia limited liability company (a.k.a. Jones Real Estate Investment Company, L.L.C.) ("Owner") (index as a "grantor"), THE REBKEE COMPANY, a Virginia corporation ("Applicant Developer") (index as a "grantor"), and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (the "Grantee"). WITNESSETH: WHEREAS, Owner is the owner of record, and Applicant Developer is the proposed developer and the applicant for the rezoning, of certain parcels of property located in the Princess Anne district of the City of Virginia Beach, more particularly described as follows: See Exhibit "A" Said parcels hereinafter collectively referred to as the "Property"; and WHEREAS, the Property by action of City Council for the City of Virginia Beach, Virginia, on September 8, 2009, was rezoned to Conditional B-2 (the "Rezoning") and is subject to the terms of the zoning ordinance of the City of Virginia Beach; and WHEREAS, by the Rezoning, the Owner and Applicant Developer (hereinafter sometimes collectively referred to as the "Grantors") initiated a conditional amendment to the zoning map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to Page 1 of 10 PARCEL 1 GPIN: 2414-06-7715 PARCEL 2 GPIN: 2414-06-7684 change the Zoning Classification of the Property from R-20 and 0-1 to conditional B-2 with the covenants, restrictions and conditions of an agreement, dated July 1, 2009, which agreement was recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia (the "Clerk's Office") as Instrument no. 20090915001086450 (the "Proffer Agreement"); and WHEREAS, subsequent to the Rezoning and the Proffer Agreement, Grantors have requested modifications to the site plat referenced in the Proffer Agreement and clarification of the provisions of the Proffer Agreement relating to access to the Property; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and 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 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 generally not applicable to land similarly zoned B-2 are needed to cope with the situation to which the Grantors' rezoning application gives rise; and WHEREAS, the Owner has voluntarily proffered, and the Applicant Developer has agreed to, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the amendment to the Zoning Map, in addition to the regulations provided for in the existing B-2 zoning district 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 Zoning Map relative and applicable to the Property, which Page 2 of 10 conditions constitute an amendment and restatement of the Proffer Agreement and all of which have a reasonable relation to the Rezoning and the need for which is generated by the Rezoning. WHEREAS, said conditions, as hereby amended and restated, having been proffered by the Owner, and agreed to by the Applicant Developer, and allowed and accepted by the Grantee as part of the Zoning Ordinance, such amended and restated conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of the ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2-2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW, THEREFORE, the Grantors, their successors, personal representatives, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pTo quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenant and agree that this Paee 3 of 10 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 Owner, their successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. The development of the Property shall be in substantial conformance with the Site Plan titled "Jones Real Estate Investment Site Plan", dated September 25, 2009, prepared by Kimley-Horn & Associates, which plan has been exhibited to the City Council and is on file with the Planning Department of the City of Virginia Beach (the "Site Plan"). 2. The buildings constructed on the Property shall be constructed so as to be architecturally compatible with the building elevations titled "Atlantic Gardens Center Proposed Retail Center" and "Atlantic Gardens Center Revised Design" dated May 10, 2007, prepared by Jeff Love and Associates for AGC Acquisition, LLC for the rezoning of the adjacent property as referenced in that proffer Agreement, dated May 25, 2007 between AGC Acquisition, LLC and Booth Ferrell Associates and the City of Virginia Beach and recorded in the Clerk's Office as Instrument No. 20080125000092840, which elevations have been exhibited to the City Council and are on file with the Planning Department of the City of Virginia Beach (the "Building Elevations"). The final Building Elevations shall be approved administratively by the City of Virginia Beach Planning Director. 3. The Property shall be used for the following principal uses and their accessory uses and structures: a. Business offices; b. Medical and dental offices and clinics and laboratory, legal, engineering, architectural and other professional offices; accounting and bookkeeping offices; PA(TP d of 10 c. Retail drug store d. All retail and other commercial and accessory uses and all ancillary uses as permitted (subject to such applicable rules regarding special exceptions or special use permits as may be applicable to a particular use) within the B-2 zoning district, but excluding business or vocational schools, boat and motor vehicle sales or service, childcare centers, commercial parking lots or parking structures, drive thru eating or drinking establishments, grocery stores, convenience stores, and storage garages. 4. Access to the Property from General Booth Boulevard shall be in accordance with the Site Plan, notwithstanding the terms of that Deed of Easement and Agreement (the "Easement Agreement"), dated December 16, 1991, and recorded in the Clerk's Office in Deed Book 3055, at page 2018, as the same may be amended from time to time or terminated. 5. These proffers supersede all previously recorded proffers affecting the Property or the use thereof as follows: a. Conditions and restrictions as set forth in Agreement with City of Virginia Beach, Virginia, dated August 30, 1991, recorded February 7, 1992, in Deed Book 3055, page 2027; and b. Conditions and restrictions as set forth in Agreement with City of Virginia Beach, Virginia, dated April 10, 1995, recorded August 10, 1995, in Deed Book 3526, page 984. Further, this Agreement restates and supersedes the Proffer Agreement in its entirety and the proffers set forth herein supersede those proffers set forth in the Proffer Agreement. Page 5 of 10 Notwithstanding the effect of such proffers being superseded, all the terms and conditions as set forth in the Easement Agreement shall remain in effect, unless and until such terms and conditions are duly amended or terminated. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority on behalf of the 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, one or more of 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 Planning Department and that they shall be recorded in the Clerk's Office and indexed in the name of the Grantors and Grantee. Page 6 of 10 IN WITNESS WHEREOF, the foregoing Agreement is executed by the parties as of the date first written above. JONES REAL ESTATE INVESTMENT COMPANY, LLC, A Virginia limited liability company BY• Its: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF " , IA pegko_-, to -wit: The foregoing instrument was acknowledVA d before me this-?H�day of, 2009, by i l d / 775Aeb , as , " of Jones Real Estate Investment Company, LLC, a Virginia limited liability, c pany, on its behalf, and who is ❑ personally known tome, or fo who produced as identification. My commission expires:';''- Registration No.: '4V-5 -f-,:.t:2 4 4 Notary Public Page 7 of 10 Commonwealth of Virginia Kimberly Ruth Perkins Holland - Notary Public Commission No. 7138492 MY Commission Fxpires 02/28/2011 THE REBKEE COMPANY, A Virginia corporation f By Its: COMMONWEALTH Of VIR INIA CITY/COUNTY OF , to -wit: The foregoing instrument was acknowledged before me this by 7t w.:F/ L -Kwl-�,c # , as Mof T Virginia corporation, o sin behalf, and who is J9 personally known as identification. My commission expires: %;w • /.3 Registration No.: 3S 5 -4 Z 9 625312713 'day of46 2009, he Rebkee Company, a to me, or ❑ who produced (�c,C el, S `I otary Public Page 8 of 10 -,; REBECCA API\ r,?^C[RS-OVERSTREET :ry Publ; of Vir7,inia 4 +` My Gamirllri�iran kx��: Aaril �9, t�819 EXHIBIT "A" Legal description Parcel 1 (GPIN 2414-06-7715): A. All that certain lot, piece or parcel of land, with the buildings and improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot No. C, as shown on that certain plat entitled, "SUBDIVISION OF PROPERTY OF CHARLES C. HICKMAN ET UX, D.B. 482, P. 21, M.B. 21, P. 70, PRINCESS ANNE BOROUGH, VIRGINIA BEACH, VIRGINIA, SCALE 1"=100', SEPTEMBER 24,197 1, W. B. GALLUP, SURVEYOR," which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 88, at Page 45. [Source deed erroneously references M.B. 21, P. 70 in the title of the referenced plat instead of M.B. 25, P. 70 as shown on plat.] Less and Except that portion of the property taken by the Commonwealth of Virginia by Certificate of Take recorded in the aforesaid Clerk's Office in Deed Book 2242, page 605, and Order recorded in the aforesaid Clerk's Office in Deed Book 2319, at page 1523. B. All that certain lot, piece or parcel of land, with the buildings and improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as "To be conveyed to Lot C" as shown on that certain plat entitled, "Re -Subdivision of Property of Charles C. Hickman", 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 146, at Page 44, which parcel contains .507 acres, more or less. [Source deed erroneously references the word "Re -Subdivision" in the title of the referenced plat instead of the word "Subdivision" as shown on the plat.] Parcel 2 (GPIN 2414-06-7684): A. All that certain lot, piece or parcel of land, with the improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot #B, as shown on that certain plat entitled, "SUBDIVISION OF PROPERTY OF CHARLES C. HICKMAN ET UX, D.B.482, P. 21, M.B. 25, P. 70, PRINCESS ANNE BOROUGH, VIRGINIA BEACH, VIRGINIA, SCALE 1"=100', SEPTEMBER 24,197 1, W. B. GALLUP, SURVEYOR," which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 88, at Page 45. Page 9of10 Less and Except that portion of the property taken by the Commonwealth of Virginia by Certificate of Take recorded in the aforesaid Clerk's Office in Deed Book 2253, page 260, and Order recorded in the aforesaid Clerk's Office in Deed Book 2304, at Page 2014. B. 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, known, numbered and designated as "To be conveyed to Lot `B "', in that certain plat entitled, "Subdivision of Property of Charles C. Hickman, et ux", which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 146, at Page 44 (erroneously stated to be page 144 in prior deed), said parcel containing .459 acres, more or less. Page 10 of 10 far)H-3 Utz_ -. 1\T ■ r. .. T 44"ap Not to Scale r ., i �,1 n` �R46<`�� Lyrnihauan -.` gw c_Q.r tf c, vv ear iWAM rrUpCrTICS» inn. CUP Community Pier u CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: WEST NECK PROPERTIES, INC. / ROBERT ZIRPOLI, Conditional Use Permit, non-commercial community pier (private use), 1809 Estates Court, 2933 & 2936 Estates Drive. LYNNHAVEN DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The applicant requests a Conditional Use Permit for a non-commercial community boat dock. The applicant is proposing a pier that will be shared by the owners of Lots 16A (1809 Estates Court) and 15A (2933 Estates Drive), and which crosses Lot 14A (2936 Estates Drive), in the neighborhood known as Estates on the Lynnhaven. Since the pier is being shared, the Zoning Ordinance classifies the pier as a community boat dock, which requires a Use Permit. ■ Considerations: The applicant proposes to construct a five-foot wide pier over 500 feet in length with a 75 foot by 5 foot (75'x5') wide floating pier and two boat lifts. The pier will be accessed directly from Lots 16A and 15A; however, approximately 500 feet of the pier traverses the southern side of Lot 14A adjacent to a flag of Lot 16A that extends to the water. According to the applicant's representative, Lot 14A will continue to utilize an existing pier located on the opposite side of that parcel. Staff's position is that in lieu of two additional piers, one each on Lot 15A and 16A, a shared pier is preferred for both visual and navigation purposes. The proposed pier will be used exclusively by the applicants, and no commercial use of the pier will be permitted. The pier will not have a sewer pump out facility nor will petroleum products be dispensed or stored on site. The applicant is currently seeking approval through the Joint Permit Application (JPA) process, and no construction will be permitted until the JPA is approved. There was opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council with the following conditions: West Neck Properties, Inc. Page 2 of 3 1. Permits shall be secured from all appropriate regulatory agencies through the Joint Permit Application (JPA) process prior to any development or construction of the pier and boatlifts. 2. The boat dock revisions and extensions shall be substantially constructed as depicted on the plan entitled "PROPOSED PIER, LIFTS AND PILES, PURPOSE: BOATING ACCESS," prepared by Professional Construction Consultants, LLC, dated 10/23/09, or as modified as required by the JPA Permit. 3. No commercial use of the dock shall be permitted. 4. A plat shall be recorded, prior to issuance of site plan approval, depicting a legal means of ingress/egress for Lot 15A and 16A to gain access to the pier on Lot 14A, as shown on the plan identified in condition 2 above. 5. The setback of the pier from the property line between Lot 14A and 15A is determined to be acceptable; however, there shall be no covered boat lifts, covered docks, or other covered structures located anywhere on or adjacent to the pier. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting DepartmenVAgency: Planning Department City Manager. Map H; Hn- N�: _cele West llleck erne Inc. `o - � '� ' - F p -'q; VI Cumminih• Pier REQUEST: Conditional Use Permit (community boat dock) January 13, 2010 Public Hearing APPLICANT: WEST NECK PROPERTIES, INC PROPERTY OWNER: WEST NECK PROPERTIES, INC. & ROBERT ZIRPOLI STAFF PLANNER: Carolyn A.K. Smith ADDRESS / DESCRIPTION: 1809 Estates Court and 2933 and 2936 Estates Drive GPIN: ELECTION DISTRICT: SITE SIZES: AICUZ: 14991467120000 LYNNHAVEN 43,042 square feet Less than 65 dB DNL 14991447520000 48,205 square feet 14991416420000 191,545 square feet SUMMARY OF REQUEST The applicants request a Conditional Use Permit to allow for a shared pier by the owners of Lots 16A (1809 Estates Court), 15A (2933 Estates Drive), and 14A (2936 Estates Drive) in the neighborhood known as Estates on the Lynnhaven. The applicant proposes to construct a five-foot wide pier over 500 feet in length with a 75 foot by 5 foot (75'x5') wide floating pier and two boat lifts. The pier will be accessed directly from Lots 16A and 15A; however, approximately 500 feet of the pier traverses the southern side of Lot 14A adjacent to a flag of Lot 16A that extends to the water. According to the applicant's representative, Lot 14A will continue to utilize an existing pier located on the opposite side of that parcel. The applicant is also seeking a variation to the side yard requirement for the pier. This request is further discussed in the Evaluation section of this report. WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: One site consisting of an undeveloped single-family dwelling site and two sites developed with existing single-family dwellings. SURROUNDING LAND North: . Single-family dwellings / R-40 Residential District USE AND ZONING: South: . Single-family dwellings / R-40 Residential District East: . Single-family dwellings / R-40 Residential District West: . Lynnhaven River Single-family dwellings / R-40 Residential District NATURAL RESOURCE AND The properties are within the Chesapeake Bay watershed and are CULTURAL FEATURES: specifically located in the Resource Protection Area, the more stringently regulated portion of the Chesapeake Bay Preservation Area. All three sites have wooded, naturalized buffers along the shoreline. IMPACT ON CITY SERVICES This request for a shared pier with boatlifts will have no significant impact to City services. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Evaluation: The request to construct a five-foot wide pier, over 500 feet in length, with a 75 -foot by 5 -foot (75'x5') wide floating pier with two boat lifts is recommended for approval. The pier is proposed with upland access from Lots 16A and 15A, each having a separate access point; however, approximately 500 feet of the shared pier traverses Lot 14 A. An existing pier, located on the northern side of Lot 14A opposite the location of the propose community pier, will remain for the exclusive use of the owner of Lot 14A. As this request for a community boat dock traverses Lot 14A, this property owner is party to the request. Staffs position is that in lieu of two additional piers, one each on Lot 15A and 16A, a shared pier is preferred for both visual and navigation purposes. The proposed pier will be used exclusively by the applicants, and no commercial use of the pier will be permitted. The pier will not have a sewer pump out facility nor will petroleum products be dispensed or stored on site. The applicant is currently seeking approval through the Joint Permit Application (JPA) process, and no construction will be permitted until the JPA is approved. Also requested by the applicant is a variation to the required side yard setback for the pier. Such variations are permissible as part of a Conditional Use Permit by the provisions of Section 221(e) of the City Zoning Ordinance. That section notes that such variations may be approved, but there must be a determination that the "conditions attached to its approval satisfactorily offset the negative effects inherent WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 2 in the area or dimensional deficiency." Currently, any portion of a pier over 16 inches in height and above mean low water, must meet required yard setbacks. The subject parcels are zoned R-40 Residential District, which requires a 20 -foot side yard setback. In this case, Lots 15A and 16A have a very limited amount of actual water frontage, and thus, cannot meet such side yard setback requirements. A recent amendment to the Zoning Ordinance now allows piers to extend into required yards if the pier is uncovered, no more than four feet in width, and does not 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. In this case, the applicant desires to maintain a pier width of five feet, and as a result, this new provision of the Zoning Ordinance cannot be used for the reduced side yard setback. Staff concludes, however, that the setback as shown on the submitted plan is acceptable, as the ten -foot wide flag of Lot 16A adjacent to the proposed pier provides a buffer between the pier and adjacent properties to the south. Additionally, staff is recommending a condition prohibiting covered boat lifts, covered docks, or other covered structures from being built on the pier as a means of further reducing potential impacts on adjacent properties. In sum, Staff finds that the construction of a non-commercial community pier for the private use of the future homeowners of Lots 15A and 16A is compatible with other neighboring properties and is recommended for approval as conditioned below. CONDITIONS 1. Permits shall be secured from all appropriate regulatory agencies through the Joint Permit Application (JPA) process prior to any development or construction of the pier and boatlifts. 2. The boat dock revisions and extensions shall be substantially constructed as depicted on the plan entitled "PROPOSED PIER, LIFTS AND PILES, PURPOSE: BOATING ACCESS," prepared by Professional Construction Consultants, LLC, dated 10/23/09, or as modified as required by the JPA Permit. 3. No commercial use of the dock shall be permitted. 4. A plat shall be recorded, prior to issuance of site plan approval, depicting a legal means of ingress/egress for Lot 15A and 16A to gain access to the pier on Lot 14A, as shown on the plan identified in condition 2 above. 5. The setback of the pier from the property line between Lot 14A and 15A is determined to be acceptable; however, there shall be no covered boat lifts, covered docks, or other covered structures located anywhere on or adjacent to the pier. 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 are valid. WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 3 AERIAL OF SITE LOCATION WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 4 LYNNHAVEN BAY N W4M' W t1 sY TIEDOWN REFERENCES PRN #1 PIN #2 A. 24' 31' Es: 84' 56' C: 93' 96' D: 100' 103' C. 99' 104' F. 598' 602' G: 600' 603' APO 1 N/F WOODHOUSE FAMILY LIMITED TRUST 1805 ESTATES CT. GPIN: 1499 14 5390 Mfl qua PROPOSED MOORING PLES (4) PROPOSED 5x75' FLOATING PIER N W41W W �- 87.37' WSIALLED ei�i1 DMWI;E 4 PIER TO BE PARALLEIL TO Atm 5' N.W. OF ADJACENT 4 NOTE: APPROX. 070' M Lw TO MLw {� !•_..% =i PIER DMOS 105' SEAWARD OF MLW r (15.0s) SITE ACCESS BY WATER AND ACCESS ROUTE SHOWN N= 11 (91ST. ;20(0(�221,,2193062949): OORR TEMiPORARY ASUI CI SIRUCT RR M) WILL YE ALLOMED WRIW1 UMITY EASEMENTS UNLESS APPROVED PP BY THE DEPARTMENT OF PUBICWORIM ,f L 1 Op 1 20 PMC DRAINAGE EASEMENT FF } (W. /200212193062949) � LOT 14A #2933 `� '� 'a 4° LOT 14A, SAFETY FENCE (TYP) 918 LOT 16A APO'S: 1. WOODHOUSE FAMILY LIMITED TRUST 2. R. ZIRPOU K—WW6 i BJ1Ri m `v Ut No. 183335 —$APO 2 3N/F MANS DRIVE No c:oNSTRUCIm v" ROOM ZIRPOU 2932 ESTATES DRNE OM O 1499 14 1952 � am LOT 15A F o"N�wWE 9r"N N ESP= OWL — 2953 P �+ 0 100' 200' �T,.1xu N"n a 1" 100' a.aa oa tom'" BRING SERVICES PROVIDED 6Y: 05 A PROFESSIONAL CONSTRUCTION CONSULTANTS, LLC. REV. 10/23/09 (757) 773-6164 EM OOL: RNCc0PCC-U.C.00M ;! PROJECT LOCATION: LYNNHAVEN BAY PROPOSED PIER, LIFTS AND PILES FOR: WEST NECK PROP. INC. PURPOSE: BOATING ACCESS 9 ESTATES CT. — 293.1 2936 ESTATES DR. DATUM: MLW 0.00 VIRGINIA BEACH, VA 23454 DATE 10/14/09 SHEET 1 OFJ PROPOSED SITE PLAN WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 5 1 1 11/24/09 1 CUP(community boat dock Granted ZONING HISTORY WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 6 ow 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) WEST NECK PROPERTIES, INCORPORATED - ROBERT ZIRPOLI, PRESIDENT 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) N/A 0 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) 2936 ESTATES DRIVE -OWNER ROBERT ZIRPOLI 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) N/A 0 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 City of Virginia Beach have an interest in the subject land? Yes No X If yes, what is the name of the official or employee and the nature of their interest? N/4 Conditional use PermR Applicabon Page 9 of 10 z r, DISCLOSURE STATEMENT WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 7 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) FLINT CONSTRUCTION COMPANY ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the some offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a dose working relationship between the entities.' See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, 1 am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. /--1 WEST NECK PROP., INC. / ROBEKT Applicants Signature Print Name Property Owner's Signature (if different than applicant) Print Name Conditional Use Permit Application Page 10 of 10 DISCLOSURE STATEMENT WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page Item #1 j West Neck Properties, Inc. Conditional Use Permit 1809 Estates Court, 2933 & 2936 Estates Drive District 5 Lynnhaven January 13, 2010 REGULAR Joseph Strange: We now address the remaining matters on our agenda. I will ask our Secretary to call the first item. Al Henley: The first item is West Neck Properties. And we have a speaker in opposition Sarah Woodhouse. West Neck Properties, Inc. Sarah Woodhouse: Pardon me? I'm opposed. Joseph Strange: Is there a representative on this application? Janice Anderson: The representative is going to speak first. Sarah Woodhouse: Well, okay. I thought he was calling me up? Janice Anderson: Yes, he did. Al Henley: I apologize. Joseph Strange: Is there a representative on this item? Chris Flint: Good afternoon members of the board. Chairman Strange, I'm Christ Flint, Flint Construction. I'm the contractor and the agent for Mr. Zirpoli. He is present here at the hearing. Joseph Strange: Did you want to make any statement? Christ Flint: I agree with the Planning Department's 1 through 5 suggestions for approval of the pier. Joseph Strange: Okay. Is there anyone here to speak in support of the application? Al Henley: We have three speakers in support. The first one is Vanessa Dallas in support. Joseph Strange: Please step to the podium please. Vanessa Dallas: Planning Commission, thank you for letting me speak. I would like you to ( know that I am the only. Item #1 West Neck Properties, Inc. Page2 Ed Weeden: Ma'am, state your name for the record. Vanessa Dallas: I'm sorry. Vanessa Dallas. I live at 2928 Estates Drive, and I am the only owner occupant adjacent to Mr. Zirpoli's property. Donald Horsley: Can you show us? Vanessa Dallas: Sure. Donald Horsley: There is a pointer right there. Ed Weeden: There is a pointer next to the microphone. Vanessa Dallas: I'm not familiar with all of these procedures. Is this it? All these kids would know all about this stuff. Let's see. Where am I? I am right there (pointing to PowerPoint). am Lot 12. Joseph Strange: Okay. Vanessa Dallas: I think Lot 15 & 16, are the lots in question here. It is my understanding through the Wetlands, my understanding about wetlands rule is the lot is allowed to have a pier. Well, there are two lots here that are asking for one joint pier versus two piers. I think that is a benefit to our neighborhood. Also, Mr. Flint has built every other pier in our neighborhood, and he has done a beautiful job. They have cleaned up after themselves. To my knowledge, we have not had any complaints. I haven't heard Mrs. Woodhouse's complaints but the fact that even the Woodhouse's are here, I have to find amusing because I have lived with the Woodhouse tenants for three years. They have a single-family property that has two rental properties on it. It is a 1940s house, and I'm not sure the age of the other house. We have people speeding in and out of the neighborhood that live back there. They have motorcycle groups that go in and out of there. I hear chain saws. I've had to call the fire department on them burning trash and leaves on the property. Simply put, and this is a total understatement, the Woodhouse property is the scourge of the neighborhood. Joseph Strange: Ma'am, could stick to the matter at hand? Vanessa Dallas: So, I'm just going to let that lie. Joseph Strange: Can you direct your comments towards the application itself? Vanessa Dallas: Well, I just wanted to let you know the history. There was also a specific performance law suit between the developer and the Woodhouse family, so there is some bad blood there, but having said that, the Flints do a beautiful job. I'm in favor of a joint pier between Lots 15 & 16. I'm sorry I didn't get in about the tenant carrying guns. But anyway, I think it would be a good thing. It will help property values and increase our tax base, which is good for everybody in the city. Thank you. Item #1 West Neck Properties, Inc. Page3 Joseph Strange: Thank you very much for coming. Chris Flint: Sorry, Mr. Chairman, I didn't realize it was my chance to speak. I'll give you a little background on what we propose to do here. Mr. Zirpoli actually lives right here (pointing to PowerPoint). That is his personal house. He developed the entire neighborhood over here, and cleaned up all that farmland. These two properties right here are actually under the development by Mr. Zirpoli. Joseph Strange: Sir, please could you identify yourself again? Chris Flint: Excuse me? Joseph Strange: Could you identify yourself again? Chris Flint: My name is Chris Flint. I'm the agent. I'm with Flint Construction. Sorry. Anyway, what we are doing here and we have worked with staff, and we're trying to create a dual pier, dual; access for two owners. And what is happening here is we're trying to move it over on Mr. Zirpoli's actual lot to keep it out of the creek. That keeps the beauty of the creek, and the wildlife and all the other stuff. The dual access pier would be built to come down here with two boat lifts that these two people would share. And basically that is the argument. I guess the opposition is asking that we actually, and if you could go back to that one shot? That one is fine. I think that we actually build a walk path through Mr. Zirpoli's lot and then start over here with the pier. Beside intrude on Mr. Zirpoli's actual property that he hasn't approved on the other side of the trees, I would be tearing up all the trees into the CBPA area. If I follow the rules with it being 4 feet tall, then it allows the grass and everything to continue to grow under the pier. There is one argument about being four foot wide versus five foot wide. Four foot wide is okay on a normal pier two but when you're talking 600 and 700 feet long, and you have a family with you, two people can walk comfortably down a five foot wide pier, with their children if you want to hold their hand or something. You can't walk two people down a four foot wide pier. Mr. Zirpoli would actually save money by doing a foot less width, but that consideration was taken for the safety of the future residents. That is all that I have to say. I'm here for any questions. Joseph Strange: Okay. Thank you. Chris Flint: Yes sir. Al Henley: The next speaker in support would be Robert Zirpoli. Robert Zirpoli: Thank you for having me. My name is Robert Zirpoli, and I appreciate you having me here. I'm the developer. I developed Estates on the Lynnhaven, and I tried to incorporate everything that was perfect in that development. I think we've done a pretty darn good job there. We've built probably ten docks, and they're mostly fixed, and they're floating at the end. I want to have this cove, so it's opened so people that are going in there, they don't buy �_ it from me, and build two piers going down there. I move the pier completely on my side of the Item #1 West Neck Properties, Inc. Page4 property so it is on my side of the cove. Some of it is over land so everybody has their own view. They both will share the pier. They both will have their boat docks so later on down the road I don't have two piers going down hoping that, and I want these people to look out their back door and have a beautiful view. It is a fantastic area, and that is what I'm trying to do instead of trying to do two. I'm trying to make it better instead of worse. Are there any questions? Thank you. Joseph Strange: Thank you. Al Henley: Okay, the next speaker in opposition is Mrs. Sarah Woodhouse. Sarah Woodhouse: Hi. That was lovely. Joseph Strange: Please identify yourself for us. Sarah Woodhouse: I'm Sarah Woodhouse. Joseph Strange: Thank you. Sarah Woodhouse: How long do I have to talk? Joseph Strange: Are you the only opposition? Sarah Woodhouse: I think so. Joseph Strange: You have as much as ten minutes. Sarah Woodhouse: Okay. First, I just want to thank you all for allowing me to come this morning and hear the briefing, and to be here today to express my concern about this matter. You all seem to be passionate about your work at the beach, and I appreciate that. I remember riding the rides at Seaside Park myself. In the interest of full disclosure, I do want to say that we do have tenants living on that property. My family has long roots of Virginia Beach. None of us are currently living here but we're still very emotionally attached to the beach and to that property. And pay $23,731 in taxes this year on the property that we have. I was sorry to hear the concerns about our tenants because we had just gotten rid of some tenants, and moved in new families and the houses that are there, and have done a lot of work on both houses. Maybe that is old news that was being shared earlier. I want to clarify one point from my letter. I think, when I had suggested the alternative plan, I think that some of the members of the Commission thought that I was suggesting that the two lots there be able to use Mr. Zirpoli's existing pier, which wasn't my intention. What I was suggesting was that rather than go through that inlet with that big pier that runs its entire length along our property line that they go around that little inlet, and have their floating boat ramp, sort of where it is now. But it just wouldn't go all the way through that cove. I don't know how many of you were able to go on the tour to see that little inlet but I think the situation is really unique, and is different from some of the other piers that people have ��_ built. Can you put that other slide up that just shows the plan? Just the drawing? So, I was Item #1 West Neck Properties, Inc. Pages thinking that instead of having this long pier that really and totally is, and nothing against Flint Construction. I know nothing about them. I don't wish Mr. Zirpoli any ill either. It is just huge. This is like more than 600 feet of length of pier going across which is just a lovely little inlet. What I was hoping was there could be a path or a just if people prefer walking on a wooden pier that could come perhaps to this point then just have the pier cross here with the floating pier there. And to me, I feel like that would be better for everybody. I mean, this lot has been vacant since Mr. Zirpoli developed things. I believe, and I may be incorrect here but I believe that this is the Stackhouse that has been sitting there for a couple of years at least. It is so interesting that he would like to make these more marketable. If I were looking at either this lot or this house, I would prefer not to have this whole pier thing because it is really very beautiful. And, with this plan, I was just wondering if they couldn't have access to the bay, and people could still pull up their lawn chair, throw out their kayak and just enjoy this beauty without this massive expansion pier. See, this is running right along our property line in its full extent. So, I just want to clarify that I wasn't suggesting that they be able to use his existing pier but then maybe we could have a situation that would sort of work well for everybody. Earlier at the meeting, Carolyn said that you all had just approved a similar pier in the same neighborhood, and I'm just hoping that maybe isn't exactly true because I suspect that the situation is different in maybe one or more ways. One, I'm wondering if there was a third party whose property would be adversely affected as ours is by this. We still own the predominate section of that little inlet. I think no matter how nice a pier it is, it would clearly be marred by a pier going straight through it. So, I'm wondering if there was a third party who is as adversely affected? I'm wondering if the length of that other pier was in its total 664 feet. Did it run the entire length of someone else's property? And did it traverse an actual gorgeous inlet. I mean that is my main thing it is just marring the beauty of this inlet, and that is just running right next to our property. And she suggested that these lots both have riparian rights. I would suggest that is kind of what continual riparian rights are. Maybe there are riparian rights when you have a big waterfront acreage, and maybe it is something different when your lot narrows down to a tiny little flagpole that is only ten feet wide. So, I am kind of curious about that. And, one of the people at the meeting wisely wondered why it had to be shifted over. And I think it is because of the narrowness of those two lots. In the staff report, the evaluation it said they feel that Lot 16A, which is adjacent and is ten feet wide provides a buffer between the pier and the adjacent property to the south, which I'm saying that as the property owner to the south, we don't agree with that. We don't think it is a sufficient buffer, and we don't really see why they should get a variance from the 20 foot side yard setback. And, this isn't the first time that I had to come down here to sort of fend a proposal for a pier when I came once before, the Zoning Board actually found in our favor. And I guess it would be just great if we could just come up with a plan that would work for everybody so we can stop making these visits. So, in summary what is really important to my family is this is a unique case. We're concerned that this pier goes straight through this beautiful inlet, and we just would prefer a path around or a wooden walkway around ending close to the same point but does not go through that beautiful inlet. It might preserve the inlet for everyone's enjoyment including the potential new owners of that lot and that house. So, thanks for your time. Joseph Strange: Okay. Thank you. Item #I West Neck Properties, Inc. Page6 Donald Horsley: I have a question. Ms. Woodhouse, you said the pier is along your property line? Would you show us your property line? Sarah Woodhouse: Our property line is this. But this is only ten feet. I think. So, this is our property over here. And, so this is our property line. Then right there is the pier. Right here, so technically it is one lot over, but because these lots were drawn in a really strange way. It is not really any distance away. Donald Horsley: Can you show us the two houses that you have? Sarah Woodhouse: Yes. Can you go back to the other one? Yes sir. Okay. This is the old farm house and this is the cottage. Kathy Katsias: Now show us your property line now? Sarah Woodhouse: This is the property line in question. I'm not exactly sure where the property line is. Kathy Katsias: So, when you were showing us on the other plat, it was turned around. Sarah Woodhouse: But I think I had it right. �. Kathy Katsias: No. Joseph Strange: She did. Donald Horsley: I understand where you're coming from. Sarah Woodhouse: Okay. Donald Horsley: But the pier is not by your property line. It is one lot from the removing with the stem, counting the stem is what I'm talking about. Okay. Sarah Woodhouse: But, I mean the stem is all there is at that point. So, technically it is one lot. But it is also less the distance from here to there. The other question that I have is, and you mentioned it, that you would rather have a wooden walkway through there? Sarah Woodhouse: On the other side like not through the inlet. Not through that little inlet. Donald Horsley: Through Mr. Zirpoli's property you just would rather have a wooden walkway to go through there? Sarah Woodhouse: Right. Just because it is just so intrusive to have, and I think a lot of people may agree with me. I think it is very intrusive to have a pier that goes through an inlet. Item #1 West Neck Properties, Inc. Pagel Donald Horsley: I thought that was his reason for moving it over on the property to stay out of the inlet. Is it? Sarah Woodhouse: It does move it more to the edge but look back at the other one again? It is still going through it here. Donald Horsley: Okay. I don't have any other questions. Sarah Woodhouse: Okay, thank you very much. Joseph Strange: Okay. Thank you. The applicant now has three minutes. Chris Flint: Yes sir, just a couple of rebuttal items. The City and the Army Corp have both verified it. Ed Weeden: Your name? Chris Flint: I'm sorry. I have to say that each time. I apologize. Chris Flint, with Flint Construction, and I represent Mr. Zirpoli. The City and the Army Corps have verified. They are both riparian homeowners. Actually, could you go back to the plan drawing please? Those are some good shots showing the woods. I'm going to get these property lines straightened for you all. This is the property line that goes right here and it jots straight out. Okay. This is the property next door. This is Mr. Zirpoli's lot. His pier is totally on the other side of the property. This lot right here is undeveloped because of the economy of course. Ed Weeden: Chris, come back to the microphone and talk about this. Use the laser pointer. Chris Flint: This gets kind of confusing because it is really tight in there. The line right here plus I'm shaking. The line right here the pier actually crosses over into this middle lot and then goes over onto. I can't see it myself it is so tight. Okay. The pier is actually on Mr. Zirpoli's property, and it is just outside of the creek if you're facing the waterway to the right. And, the City of Virginia Beach and the Army Corps have made rules that when you build piers over marsh grass to protect the environment it has to be a certain height. Now all of those rules are going to be followed, so we're not doing any damage to any kind of wetlands. The more detrimental damage would be for me to go through the woods into Mr. Zirpoli's actual property through his woods and build a structure on top of that. That would destroy trees and everything else. So, the way that we are doing it across this marsh grass is approved by all three agencies, and that is how they protect the grass. It grows under. We're not killing anything. I'm just going to drive woodpile through the grass and that is it. That is all that I have to say. Joseph Strange: Does anyone else have any questions? Janice Anderson: I think what we cleared up from this diagram right here is that his property line includes part of that cove. Is that correct? Item #1 West Neck Properties, Inc. Page8 Chris Flint: Yes ma'am. His very left hand edge if he is facing the water includes part of the cove. Janice Anderson: The cove. Chris Flint: He has let that pier come over as close to his property as possible within the rights of this jurisdiction to allow the creek to stay open so it is just on the right hand side of the creek. Janice Anderson: Is there any other questions? Phil Russo: If I understand correctly, I think Ms. Woodhouse was asking that the pier actually be started farther down the property line. Chris Flint: Actually, she is asking that the pier start right here. Phil Russo: Yeah. Chris Flint: Well, that would mean that we would have to build something through all of these woods to support the structure. Phil Russo: Right. Chris Flint: And that would actually be on Mr. Zirpoli's property. Phil Russo: And I think what your saying is... Chris Flint: Were just to the right of his actual property. Phil Russo: But I think you're also saying that would actually create more environmental impacts. Chris Flint: Absolutely. I would be trampling over roots and whatever trees I didn't have to take out in my way, the piling could kill the roots and the trees would die in a year or two. Joseph Strange: Okay. Al? Al Henley: Mr. Flint, one last question. Chris Flint: Yes sir. Al Henley: The creek as we refer to it, on low tide is that amicable? Chris Flint: During the summer. Right now, no, because right now because during December, January, and February the tides are running a foot lower than normal. In the summer, you're talking inches. He could get a canoe in there but no boat. Item #1 West Neck Properties, Inc. Page9 Robert Zirpoli: In the past two years there have been at least two feet of water in there. Joseph Strange: Identify yourself please. Robert Zirpoli: Robert Zirpoli. I'm the land owner. For the past two years, since we've dredged, it's gotten fuller and fuller in there, and basically I own half the cove. I've moved all the way over to the right side to get it out of the cove and to get everybody we knew further and further away from Mr. & Mrs. Woodhouse's property. That is it in a nutshell. Chris Flint: We can't move it any farther away basically. Robert Zirpoli: And, I've had a 25 foot boat there in and out many, many times. Joseph Strange: Are there any other questions? Al Henley: There are no other speakers. Joseph Strange: I'll open it up for questions. Jay Bernas: A quick question. In the application it says that you're applying for a JPA. Has that been approved yet? Chris Flint: No sir. The Planning Department won't approve that without this approval. Joseph Strange: Repeat that. Robert Zirpoli: They won't approve it until you all do. Chris flint: That is correct. The City part but the Army has approved it, and the State has approved it, and all that is being verified on this decision. Joseph Strange: Are there any other questions? Thank you very much. Chris Flint: Yes sir. Just to reiterate. I agree with the Planning Department's five conditions. Joseph Strange: We're going to open it up for discussion now among the Commissioners. Ron? Ronald Ripley: Mr. Whitney, if these two lots came in and asked for a separate pier for each lot would they have the right to have those. Jack Whitney: They would not have to come before this Commission. The only reason why they are here is because technically a joint pier is considered for the purposes of the Zoning Ordinance to be a community boat dock/pier. And that requires a use permit. If they wanted to come in individually they would not have to come before the Commission. Item #1 West Neck Properties, Inc. Page10 Ronald Ripley: I think for the reasons that the staff has stated in there, when you're ready for a motion, I'll be happy to make it on this application. Joseph Strange: Is there any other discussion? Okay Ron? Ronald Ripley: A motion to approve. Joseph Strange: A motion has been made by Ron Ripley and a second by Dave Redmond. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved the application of West Neck Properties, Inc. 'ITEIA VJeW NV_ Ms Angela Walker Pct:}eq Coordinator FlifitCoAstruction 3.711 AOMW Sftd. port§jAout14 Vingb&.23705 Deaf Ms Walker k_;, DEC woo Novem . ber 0,, 2009 PROTEST Thank you. very.rdw h for striding us a copy of test Neck:Properties, ire's. plans.to build ipier 4,apett,tD,0-ur.-prop erty on the Lyrmhaven Bay;. and for giving Us the Opportunity to -respond to, YOUT ktkr. ,.October and- No�n�aer 2:- Court build: a pier ffirough the cove and �fetlaMls adja+ ent't© aim property alt 8i 5 suggest aniltmnative means to acem Aver. . . . . . . . . .....wc�ukl;be...... . . . . . . . ...... ntly more tAuy pq w.t. v. sh!i more.n eAv. e gbbdrly as W61 our -suggestion is thaTsher than, up&rWdng-,buildin9. this Massive pier aa0gsthe cove and through the wedan&j., that they instdW create a simple, attr#c hve, func. tiional, and 0.. 4Y, . unobtrusive. path around. Mr Z% Si side of the covo4ud oot - ' t.o:a plerm. thioe. Al. pa:0� W this - 00001P . am the, eov!611, wedinds,:znd th-6. herong and otlijrwildlife, who- make this appealing; covet mir home, from.the 1 enormous shading andenvironmental chi��ao . b0.,1hat`woidd-b'e;cause4 by.-a-pkits large, as. this. Their propoW calls f6r.a pier whose main portion. w6ld.obe 5003 ft by 5: and which would have two shorter arms that would be; 9ft 5 by 5 ft.and 79- it . by 5 ft. When. trywig tev visualizehM long this vmWd bejt:b= Tart it. iS the;lenO of one entire: football field plus tw© thirds tbejohgth of ano.ther fbotball.field: ktact, logethpr W1 th the -shote piiewslhe. pier- would'be� longer than the length,ot -two football fields. his -Whole Beawe.�qwt becaqsb_6f#i 'loU416A-and#1,5A`W.4r6Ckawnt ;odd vq W ;�U .0 WA _Y *hea you study. th&,�- these lots drgwi r, it p' 'fire lb W, were pertyll ;ffieeh -10,4y our pro me is. rmon6lelo- questi . on whaher or not these two lotslave ripwimrights.ai all. They q .1 -strange narrow protrusions ftt 100k.MDM. fike'itra"fflie - subdivision cul -do -w lots Wiffi don! t: plovide.. eny - real w is. clearly a atmfiolifootage. lir .1 . I IS' ]Intent'Oft'provide eXp=�Ye Waterfront footage. an. if_* waterftont lot with Mto access twapier.fbt the potential-futurepurehasm.- of lots 16A anti 155, then the most obvious and suaigWorward solution appears to. tie torproyide that ao,ms around his -side e rtr reel ha: iMrtsid sell thetwo lots in: his proposal i6- lfkdy migiviated Immi. his desire to ihake� them lots MOM wv- iia flit= puiv act to the-wawr -for thtse� lots. we." ers-13 ess that- our.; pro . p . osal. eould provide access but also maintain'the PAs.''finc b6aOty Of tho;-CO'Ift that: wood ;c k"ydwere l.h" tai Melds s in I ::aaogg t the wr . Ih� You for Yom time and for. O"'S'Sm", 41 Q C FResourceResourcecoitim"' ion, the' Ai*y rp!of .. g(= and th 4 Of Virgiuii%Soaoh. if 1ntao vvitK pl. let me kn6ik.* thereis anyone elseAhatIneedJo b,e:.*4 po Robed Woodhouse -M General Partner WO,Ddhpusf-, FWdly Partnership 91:4 Bddi Rd Ricbmond, VA 2.3229 DEL 0 .1 200o I Alap D-6,7 Al — IIL7*-- --f — " — — I -F7—.A.— L — 1FIr - I a CUP for Motor Vehicles Sales, Service & Rental . and Automotive Repair (Collision Center) -A U Li 42- 7 B2 - -,I[- / LJ -71 j fNYRI R7 X 7 CUP for Motor Vehicles Sales, Service & Rental . and Automotive Repair (Collision Center) f�u {� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: WINNER'S REAL ESTATE HOLDINGS, LLC, Conditional Use Permit, motor vehicle sales, rental, service, and body shop, 5070 Virginia Beach Boulevard. BAYSIDE DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The subject site was originally developed as a more intensive retail use, a sporting goods store. The site was most recently occupied by a furniture store and then by an oriental food market. In August 2008, the applicant, under a different name, was granted a Conditional Use Permit allowing development of the site for motor vehicle sales and service. That project, however, did not materialize. The applicant now requests a Conditional Use Permit for the purpose of developing a body shop that will consist of motor vehicle sales, rentals, service, and vehicle repair. The Comprehensive Plan Map identifies this site as being within Strategic Growth Area 4 - Pembroke Area — Western Campus District. The Pembroke SGA 4 Implementation Plan notes the following regarding this area: This area is intended to be a mid to low-rise academic village and service district. Given its location, educational and service infrastructure, it lays the groundwork for a campus environment that will provide educational - related activities, service-oriented businesses and a creative and arts incubator. This district will feed from the neighboring [to the east] Central Village District's urban fabric and bohemian art district, and ethnic restaurants, (p. 32). ■ Considerations: The site is currently occupied by an attractive one-story brick building. The only change proposed to the building is the installation of a service door at the northern end of the structure. There are 259 parking spaces, as well as landscaping and a stormwater management facility depicted on the plan. Access points to the site are located on both Virginia Beach Boulevard and North Witchduck Road. All of the repair work will be conducted inside the building and vehicles being repaired will be stored in a fenced storage area located on the north side of the building. Winner's Real Estate Holdings, L.L.C. Page 2of4 As noted above in the Background section, the Pembroke SGA 4 Implementation Plan recommends that the mid to low-rise buildings recommended for this area be located with the front of the building on or closely adjacent to the right-of-way line, consistent with urban type development. It is understood, however, it will likely be many years before the economic and market conditions are right for redevelopment of this site consistent with the adopted plans for SGA 4. Staff concludes that the type of use proposed for the subject site is acceptable in this portion of SGA 4 as an `interim use.' The proposed use, therefore, is appropriate at this location and, with the conditions recommended below, will be compatible with the uses in the surrounding area. There was no opposition to the request. ■ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council with the following conditions: The parking lot shall be striped and landscaped as depicted on the submitted conceptual site plan of "5070 WITCHDUCK ROAD, CITY OF VIRGINIA BEACH, VIRGINIA", dated 10/29/09, prepared by LandMark Design Group. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 2. Renovations to the existing building shall adhere to the submitted elevations entitled "PROPOSED EXTERIOR ELEVATIONS FOR CHECKERED FLAG — COLLISION CENTER VIRGINIA BEACH, VIRGINIA", dated October 29, 2008, prepared by Lyall Design Architects. Said elevations have been exhibited to the Virginia Beach City Council and are on file in the Virginia Beach Planning Department. 3. Vehicles shall be parked within the delineated parking spaces, and no vehicles shall be parked within any portion of the public right-of-way. Vehicles shall not be displayed on raised platforms. 4. A Lighting Plan and/or Photometric Diagram Plan shall be submitted during detailed site plan review. Said plan shall include the location of all pole -mounted and building -mounted lighting fixtures, and the listing of lamp type, wattage, and type of fixture. Lighting shall overlap and be uniform throughout the parking area. All lighting on the site shall be consistent with those standards recommended by the Illumination Engineering Society of North America. The plan shall include provisions for implementing low-level security lighting for non -business hours. Winner's Real Estate Holdings, L.L.C. Page 3 of 4 Particular attention shall be provided to the lighting of the storage area adjacent to the residential area to the east. 5. There shall be no pennants, streamers, balloons, portable signs, banners, or similar attention -seeking devices displayed on the site or the vehicles. 6. The site shall be permitted a monument -style freestanding sign, no more than eight feet in height. Said sign may include an electronic display as defined and allowed by the City Zoning Ordinance. There shall be no neon or L.E.D. signs or accents installed on any wall area of the exterior of the building, or within or on any windows, doors, light poles, or any other portion of the site. There shall be no signs in excess of four (4) square feet installed or displayed on the exterior or interior of the windows of the building. 7. No outdoor speakers or public address system shall be permitted. 8. All concrete, asphalt, and / or pavers that have been installed on the southeast portion of the site adjacent to (or within) the Virginia Beach Boulevard right-of-way and the used car dealership to the east shall be removed. This area shall be landscaped and the portion of the stormwater management facility depicted on the submitted site plan shall be re- installed. The applicant shall not permit use of this area for any motor vehicle sales, display, or storage. This condition shall be met within 45 days of City Council approval and before a business license is issued to operate on the site. 9. All storage containers shall be removed from the site. 10. The applicant shall determine and provide written field verification of the as -built condition and functionality of the existing stormwater drainage infrastructure on site, and shall provide to the City Department of Planning / Development Services Center evidence of stormwater drainage rights into Witchduck Lake. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: 1L, W''t and Atttnrrrine/k,'uirKblhcon(_enter) 7 January 13, 2010 Public Hearing APPLICANT & PROPERTY OWNER: WINNER'S REAL ESTATE HOLDINGS, L.L.C. STAFF PLANNERS: Faith Christie and Robert Davis REQUEST: Conditional Use Permit (motor vehicle sales, rental, service, and body shop) ADDRESS / DESCRIPTION: Property located at 5070 Virginia Beach Boulevard (northeast intersection of Virginia Beach Boulevard and Witchduck Road) GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14679601310000 BAYSIDE 5.15677 acres Less than 65 dB DNL The applicant requests a Conditional Use Permit for the SUMMARY OF REQUEST purpose of developing a body shop that will consist of motor vehicle sales, rentals, service, and vehicle repair. The site is currently occupied by an attractive one-story brick building. The submitted site plan depicts the existing 50,902 square foot building situated 97 feet from Virginia Beach Boulevard, 159 feet from North Witchduck Road, 30 feet from the residential neighborhood to the east, and 161 feet from the automotive repair establishments to the north. There are 259 parking spaces, as well as landscaping and a stormwater management facility depicted on the plan. Access points to the site are located on both Virginia Beach Boulevard and North Witchduck Road. The only change proposed to the building is the installation of a service door at the northern end of the structure. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Vacant commercial building (former food market), associated parking, and landscaping. SURROUNDING LAND North: . Automotive Repair / B-2 Community Business District USE AND ZONING: South: . Virginia Beach Boulevard WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 1 Across Virginia Beach Boulevard, Motor Vehicle Sales / B-2 Community Business District East: • Single-family dwellings / R-7.5 Residential District West: . Witchduck Road Across Witchduck Road, retail store and automotive repair / B-2 Community Business District NATURAL RESOURCE AND The site is developed with a commercial building, parking areas, and CULTURAL FEATURES: landscaping. There are no significant natural resources or cultural features associated with the site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Virginia Beach Boulevard is an eight -lane divided major urban arterial. The MTP recommends a divided facility within the existing 150 -foot right-of-way section. North Witchduck Road in front of the site is a four -lane divided minor urban arterial. The MTP proposes a divided facility with a bikeway within a 100 -foot wide right-of-way section. A roadway Capital Improvement Program project is slated for this area. The Pembroke Area Comprehensive Transportation Plan (CIP 2-238) is ongoing and involves a transportation study for the Central Business District surrounding Town Center. This study will develop short-term, mid-term, and long-term alternatives for transportation needs in the area. The scope of services will include, but not be limited to, traffic studies, alternative transit methods, intersection improvements, arterial improvements, pedestrian access, aesthetic design elements, public involvement, and development of a Comprehensive Transportation Plan that will guide the development of feasible projects in and around the Central Business District with the objective of improving traffic flow in the area. TRAFFIC: Street Name Present Present Capacity Generated Traffic 2 Volume Existing Land Use — 258 ADT Proposed Land Use 3- Virginia Beach Blvd 40,288 ADT 56,240 ADT 1,697 ADT North Witchduck 19,206 ADT 22,800 ADT Road Average Daily Trips 2 as defined by typical commercial uses 3 as defined by motor vehicle sales and service 77 AM peak / 52 PMpeak) WATER and SEWER: This site is connected to City water and sewer STORMWATER MANAGEMENT: The applicant should be aware that this site falls within the Witchduck Lake stormwater management area, which has special requirements. EVALUATION AND RECOMMENDATION WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 2 Recommendation: Staff recommends approval of this request with the conditions below. Comprehensive Plan: The Comprehensive Plan Map identifies this site as being within Strategic Growth Area 4 - Pembroke Area —Western Campus District. This westernmost district of the Pembroke Strategic Growth Area is generally bound by 1-264, Witchduck Road, Virginia Beach Boulevard and Clearfield Avenue. It comprises the Virginia Beach Renaissance Academy as well as a number of technological and other employment firms of varying size. The Pembroke SGA 4 Implementation Plan notes the following regarding this area: This area is intended to be a mid to low-rise academic village and service district. Given its location, educational and service infrastructure, it lays the groundwork for a campus environment that will provide educational -related activities, service-oriented businesses and a creative and arts incubator. This district will feed from the neighboring [to the east) Central Village District's urban fabric and bohemian art district, and ethnic restaurants, (p. 32). The plan recommends that the mid to low-rise buildings mentioned above be located with the front of the building on or closely adjacent to the right-of-way line, consistent with urban type development. It will, however, be many years before the economic and market conditions are right for redevelopment of this site consistent with the adopted plans for SGA 4. The type of use proposed for the subject site is acceptable in this portion of SGA 4 as an 'interim use.' Evaluation: The subject site was originally developed as a more intensive retail use, a sporting goods store. The site was most recently occupied by a furniture store and then by an oriental food market. In August 2008, the applicant, under a different name, was granted a Conditional Use Permit allowing development of the site for motor vehicle sales and service. That project, however, did not materialize. The applicant now seeks this Conditional Use Permit for a slightly different concept than the one approved in 2008, as the proposed use of the site will now include motor vehicle repair — a body shop. All of the repair work will be conducted inside the building and vehicles being repaired will be stored in a fenced storage area located on the north side of the building. Staff, therefore, concludes that this use is appropriate at this location and, with the conditions recommended below, will be compatible with the uses in the surrounding area. CONDITIONS 1. The parking lot shall be striped and landscaped as depicted on the submitted conceptual site plan of "5070 WITCHDUCK ROAD, CITY OF VIRGINIA BEACH, VIRGINIA", dated 10/29/09, prepared by LandMark Design Group. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 2. Renovations to the existing building shall adhere to the submitted elevations entitled "PROPOSED EXTERIOR ELEVATIONS FOR CHECKERED FLAG — COLLISION CENTER VIRGINIA BEACH, VIRGINIA", dated October 29, 2008, prepared by Lyall Design Architects. Said elevations have been exhibited to the Virginia Beach City Council and are on file in the Virginia Beach Planning Department. 3. Vehicles shall be parked within the delineated parking spaces, and no vehicles shall be parked within any portion of the public right-of-way. Vehicles shall not be displayed on raised platforms. 4. A Lighting Plan and/or Photometric Diagram Plan shall be submitted during detailed site plan review. Said plan shall include the location of all pole -mounted and building -mounted lighting fixtures, and the listing of lamp type, wattage, and type of fixture. Lighting shall overlap and be uniform throughout the WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 3 parking area. All lighting on the site shall be consistent with those standards recommended by the Illumination Engineering Society of North America. The plan shall include provisions for implementing low-level security lighting for non -business hours. Particular attention shall be provided to the lighting of the storage area adjacent to the residential area to the east. 5. There shall be no pennants, streamers, balloons, portable signs, banners, or similar attention -seeking devices displayed on the site or the vehicles. 6. The site shall be permitted a monument -style freestanding sign, no more than eight feet in height. Said sign may include an electronic display as defined and allowed by the City Zoning Ordinance. There shall be no neon or L.E.D. signs or accents installed on any wall area of the exterior of the building, or within or on any windows, doors, light poles, or any other portion of the site. There shall be no signs in excess of four (4) square feet installed or displayed on the exterior or interior of the windows of the building. 7. No outdoor speakers or public address system shall be permitted. 8. All concrete, asphalt, and / or pavers that have been installed on the southeast portion of the site adjacent to (or within) the Virginia Beach Boulevard right-of-way and the used car dealership to the east shall be removed. This area shall be landscaped and the portion of the stormwater management facility depicted on the submitted site plan shall be re -installed. The applicant shall not permit use of this area for any motor vehicle sales, display, or storage. This condition shall be met within 45 days of City Council approval and before a business license is issued to operate on the site. 9. All storage containers shall be removed from the site. 10. The applicant shall determine and provide written field verification of the as -built condition and functionality of the existing stormwater drainage infrastructure on site, and shall provide to the City Department of Planning / Development Services Center evidence of stormwater drainage rights into Witchduck Lake. 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 are valid. 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. WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 4 AERIAL OF SITE LOCATION WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 5 0 Z Q g z CL w Y i Q = Q CL F' Lu LL 0 U � " IA °pit SIR I A M R ui- PROPOSED SITE PLAN WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 6 i 11 e Pa �a Qi g �+ �Mil i ui- PROPOSED SITE PLAN WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 6 Of W H Z W _ ru PROPOSED BUILDING ELEVATION WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 7 h G Q» O ■ z ■ �o u 0 WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 8 ■b -MW 1 11 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Kti wt - S; � �L List all businesses that have a parent -subsidiary' or affiliated business entity' relationship with the applicant: (Attach list if necessary) ❑ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the property owner is NOT a corporation, partnership, firm. business, or other unincorporated organization. & ` See next page for footnotes Does an official or employee of e City of Virginia Beach have an interest in the subject land? Yes No If yes, what is the name of the fficial or employee and the nature of their interest? Conditional Use Permit Application Page 9 of 10 Revised 713/2007 z WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 10 O DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES VList all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) ��. ' "Parent -subsidiary relationship' means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2'Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at O least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned al consents to entry upon the subject property by employees of the Department of Planning to p h and view the site for purposes of processing and evaluating this application. �APrintOelgi� 0 v Property Owner's Signature (if different than applicant) Print Name Conditional Use Permit Application Page 10 of 10 Revised 7/3/2007 WINNER'S REAL ESTATE HOLDINGS, L.L.C. Agenda Item 7 Page 11 Item #7 Winner's Real Estate Holdings, L.L.C. Conditional Use Permit 5070 Virginia Beach Boulevard District 4 Bayside January 13, 2010 CONSENT Jay Bernas: The next matter on the consent agenda is agenda item 7. This is an application of Winner's Real Estate Holdings, L.L.C. for a Conditional Use Permit for motor vehicles sales, rental, service, and body shop on property located at 5070 Virginia Beach Boulevard, District 4, Bayside. Billy Garrington: Thank you Mr. Bernas. Mr. Strange, ladies and gentlemen of the Planning Commission, for the record, Billy Garrington on behalf of the applicant Winner's Real Estate Holdings. As most of you know this is the Checkered Flag Motor Company here in the City of Virginia Beach. There are 10 conditions attached to this in staffs write up. We're in total agreement with those conditions. Jay Bernas: Thank you. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Dave Redmond to review this item. David Redmond: Thank you Mr. Bernas. The applicant, Winner's Real Estate Holdings, L.L.C., requests a Conditional Use Permit for the purpose of developing a body shop that will consist of motor vehicle sales, rentals, service, and vehicular repair. The site is currently occupied by an attractive one-story brick building. The submitted site plan depicts the existing 50,902 square foot building situated 97 feet from Virginia Beach Boulevard, 159 feet from North Witchduck Road, 30 feet from the residential neighborhood to the east, and 161 feet from the automotive repair establishments to the north. There are 259 parking spaces, as well as landscaping, and a stormwater management facility depicted on the plan. The Commission believes that the staff recommends approval of this request. We are unaware of any opposition, and the Commission concurs by consent. Thank you. Jay Bernas: Thank you Commissioner Redmond. I would like to make a motion to approve agenda item 7. Donald Horsley: Second. Joseph Strange: A motion has been made and seconded to approve item 7. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE Item #7 Winner's Real Estate Holdings, L.L.C. Page 2 FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved item 7. Ian 1-10 d -'I A 1 0 -N M A-4 StFawbridge -Ammai Care Y 12 12 7`S dB L dn ---------- 12 -- 12 12 >75 dB Ldp . ....................... CUP Veterinary Establishment J ,yti�V�VI CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: STRAWBRIDGE ANIMAL CARE / FAT BOYZ, INC., Conditional Use Permit, veterinary establishment, 2584 Aviator Drive, Suite 102. BEACH DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The applicant, Strawbridge Animal Care, requests a Conditional Use Permit for a veterinary establishment. Rather than a full-service veterinary, however, the proposed use is the rehabilitative therapy of animals. This location will be ancillary to the main Strawbridge Animal Care facility, which is located on General Booth Boulevard at the Strawbridge Shopping Center. The site is zoned 1-2 Industrial and is surrounded by a variety of industrial uses. ■ Considerations: The building proposed for the rehabilitative therapy is one unit of four located in an existing metal building originally developed as office -warehouse units. There will be three employees at this location providing care to the animals. Hours of operation are expected to be from 8:00 a.m. to 6:00 p.m. There will not be any rehabilitative activity occurring outside the building. There was no opposition to the request. ■ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council with the following conditions: 1. No retail sales shall be conducted. The unit shall only be used for animal rehabilitative therapy. 2. Animals shall not be kept outdoors. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Strawbridge Animal Care Page 2 of 3 Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: S k ,�Q bi)'k I/ 9 January 13, 2010 Public Hearing APPLICANT: STRAWBRIDGE ANIMAL CARE PROPERTY OWNER: FAT BOYZ, INC STAFF PLANNERS: Faith Christie and Robert Davis REQUEST: Conditional Use Permit (veterinary establishment / animal hospital) ADDRESS I DESCRIPTION: 2584 Aviator Drive, Suite 102 - Oceana South industrial Park GPIN: ELECTION SITE 165 acre ,747 square feet Greater than 75 d6 DNL 14957689800000 DISTRICT: BEACH The applicant, Strawbridge Animal Care, requests a SUMMARY OF REQUEST Conditional Use Permit to allow use of an existing building for rehabilitative therapy of animals. This location will be ancillary to the main Strawbridge Animal Care facility, which is located on General Booth Boulevard at the Strawbridge Shopping Center. The building proposed for the rehabilitative therapy is one unit of four located in an existing metal building developed as storage units. There will be three employees at this location providing care to the animals. Hours of operation are expected to be from 8:00 a.m. to 6:00 p.m. There will not be any rehabilitative activity occurring outside the building. The site is zoned 1-2 Industrial and is surrounded by a variety of industrial uses. EXISTING LAND USE: warehouse -office LAND USE AND ZONING INFORMATION STRAWBRIDGE ANIMAL CARE Agenda Item 9 Page 1 SURROUNDING LAND North: Office -warehouse / 1-2 Heavy Industrial District USE AND ZONING: South: Aviator Drive Office -warehouse / 1-2 Heavy Industrial East: Processing and storage / 1-2 Heavy Industrial District West: Office -warehouse / 1-2 Heavy Industrial District NATURAL RESOURCE AND There are no known significant natural resources or cultural features CULTURAL FEATURES: associated with this site. IMPACT ON CITY SERVICES There are no significant impacts to City services. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Evaluation: The Comprehensive Plan designates this site as a part of the Suburban Focus Area (SFA) 10 / Special Economic Growth Area (SEGA) 2. The Plan recommends that this area be developed with uses that are compatible within this AICUZ and are consistent with the City's economic development strategy. The proposed use of the subject site for an animal rehabilitation facility conforms to the Plan, as the use is compatible within this AICUZ and it represents an expansion of a well-established local business that provides a needed service to the community. CONDITIONS 1. No retail sales shall be conducted. The unit shall only be used for animal rehabilitative therapy. 2. Animals shall not be kept outdoors. 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 are valid. 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. STRAWBRIDGE ANIMAL CARE Agenda Item 9 Page 2 AERIAL OF SITE LOCATION STRAWBRIDGE ANIMAL CARE Agenda Item 9 Page 3 u W080A PAUNM a *Atb . ao &F,15PAc na w s foxutm na W IRM PROVOW; AY1 TM DRW w «wo oww *maws"" L. SITE LAYOUT SHOWING LOCATION OF UNIT STRAWBRIDGE ANIMAL CARE Agenda Item 9 Page 4 PHOTOGRAPH OF PROPOSED LEASE SPACE STRAWBRIDGE ANIMAL CARE Agenda Item 9 Page 5 # DATE DESCRIPTION ACTION 1 5/5/86 From AG-1/AG-2 Agricultural District Approved to 1-1/1-2 Industrial District 6/27/95 Reconsideration of Conditions Approved 2 10-29-02 From 1-1 and 1-2 Industrial Districts to Approved Conditional 1-2 Industrial Districts ZONING HISTORY STRAWBRIDGE ANIMAL t Agendall PAMEZ em 9 age 6 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) Af ),, ,o i Cate-) f-/ 1}(. Ilollo«.cil p;cz 1:"icl I{c.,lll�w� �l VP 2. List all businesses that have a parent -subsidiary' or affiliated business en tity2 relationship with the applicant: (Attach list if necessary) vei_f Neck Vetti,lPICu1 t inleei ❑ 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) Z. 1 o C Tef( 11<cic - 4xcrcta't4 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & ` See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes No v If yes, what is the name of the official or employee and the nature of their interest? Conditional Use Permit Application Page 9 of 10 Revised 7/32007 z V STRAWBRIDGE ANIMAL CARE Agenda Item 9 Page 7 1E DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. '1��� licant's Sig -nature Print Name r er's Signature (if different than a plicant) Print Narod Conditional Use Permit Application Page 10 of 10 Revised 713/2007 STRAWBRIDGE ANIMAL CARE Agenda Item 9 Page 8 Item #9 Strawbridge Animal Care Conditional Use Permit 2584 Aviator Drive, Suite 102 District 6 Beach January 13, 2010 CONSENT Jay Bernas: The next matter on the agenda is agenda item 9. This is an application of Strawbridge Animal Care for a Conditional Use Permit for a veterinary establishment on property located at 2583 Aviator Drive, Suite 102, District 6, at the Beach. Is there a representative on this application? Blair Hollowell: Hi. Jay Bernas: Please state your name. Blair Hollowell: I'm Blair Hollowell. Jay Bernas: Are the conditions acceptable? Blair Hollowell: I regret to say that we have not received the conditions, but I'm sure they are, but I haven't received them. Jay Bernas: Can someone from staff meet with her, and we can come back to this item? Blair Hollowell: I'm sorry. Jay Bernas: That's okay. Faith Christie will talk to you. RETURNED Jay Bernas: The next matter on the agenda is item 9. This is an application of Strawbridge Animal Care for a Conditional Use Permit for a veterinarian establishment on property located at 2584 Aviator Drive, Suite 102, District 6, at the Beach. Blair Hollowell: Hi again. Jay Bernas: Hi. Please state your name. Blair Hollowell: Blair Hollowell. Jay Bernas: So, are you okay with the conditions? Item #9 Strawbridge Animal Care Page 2 Blair Hollowell: Yes. Jay Bernas: Okay. Is there any opposition to this matter being placed on the consent agenda? I would like to make a motion to approve agenda item 9. Donald Horsley: Second. Joseph Strange: A motion has been made and seconded to approve item 9. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved item 9. Alap Nl-6 w N -t fc scale T,gmi XVal kor Sinn Ilk ' R5S 'i55 M - CUP for Small Engine Repair Establishment j Al ... M - CUP for Small Engine Repair Establishment w "�"y� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: TAMI WALKER MOOK, Conditional Use Permit, small engine repair, 501 Virginia Beach Boulevard. BEACH DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The applicant requests a Conditional Use Permit to allow small engine repair in conjunction with her existing motorcycle apparel business. The applicant has been in business selling motorcycle apparel since June 2006. The applicant began operation of the service department in December 2006 but was unaware of the requirement for a Conditional Use Permit for the repair business. ■ Considerations: The service department includes standard servicing and repair of motorcycles, as well as customizing. Painting and powder coating are not done on the premises; those are sub -contracted out and done in other locations. The businesses are located in an older retail strip that houses one additional business. There is sufficient parking for both businesses in front and along one side of the building. The retail portion is approximately 1,548 square feet. The service department is approximately 1,500 square feet. There is approximately 800 square feet of storage used for both businesses. There was opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council with the following conditions: The hours of operation for the retail and service department are Monday, Tuesday, Thursday and Friday from 10:00 a.m. until 6:00 p.m., and on Saturdays from 10:00 a.m. until 5:00 p.m. 2. There shall be no outside repair of engines and motorcycles on the site. 3. There shall be no outside storage of equipment, engines, tools, fuel, or motorcycles on the site. Tami Walker Mook Page 2of3 4. Engine repair work is to be done with the doors and windows closed. 5. The applicant shall provide additional sound insulation along the walls and the ceiling of the area where the engines are in use to muffle the sounds of engine motors. 6. A Certificate of Occupancy shall be obtained from the Building Official for the appropriate use group. 7. This use shall be administratively reviewed in one year to insure compliance with these conditions. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: �, •ZI8 VYL iv 10 January 13, 2010 Public Hearing APPLICANT: TAMI WALKER MOOK PROPERTY OWNER: FRIENDS SCHOOL, INC. STAFF PLANNER: Karen Prochilo REQUEST: Conditional Use Permit (small engine repair establishment) ADDRESS 1 DESCRIPTION: 501 Virginia Beach Boulevard GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 24270636540000 BEACH 27,714 square feet 65 dB DNL — 70 dB DNL LEASE SPACE: Sub -Area 1 Retail: 1,548 SF Service: 1,514 SF Storage: 800 SF SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow small engine repair in conjunction with her existing motorcycle apparel business. The applicant has been in business selling motorcycle apparel since June 2006. The applicant began operation of the service department in December 2006 but was unaware of the requirement for a Conditional Use Permit for the repair business. The service department includes standard servicing and repairs of motorcycles as well as customizing. Painting and powder coating are not done on the premises but are sub -contracted out. The hours of operation for the retail and service department are Monday, Tuesday, Thursday and Friday from 10:00 a.m. until 6:00 p.m., and on Saturdays from 10:00 a.m. until 5:00 p.m. Both the apparel and the repair businesses are closed on Wednesdays and Sundays. The businesses are located in an older retail strip that houses one additional business. There is sufficient parking for both businesses in front and along one side of the building. The retail portion is approximately 1,548 square feet. The service department is approximately 1,500 square feet. There is approximately 800 square feet of storage used for both businesses. TAMI WALKER MOOK Agenda Item 10 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Retail commercial and motorcycle repair and service SURROUNDING LAND North: . Car wash / RT -3 Resort Tourist District USE AND ZONING: South: . Residential dwellings / A-12 Apartment District East: • Across Baltic Avenue, a retail shop / RT -3 Resort Tourist District West: . Car repair service / RT -3 Resort Tourist District NATURAL RESOURCE AND The majority of the site is impervious as it is developed with a structure CULTURAL FEATURES: and parking lot. There are no known significant natural resources or cultural features associated with this site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): This site is located at the intersection of Virginia Beach Boulevard and Baltic Avenue, with access on Virginia Beach Boulevard. Virginia Beach Boulevard is a four -lane minor urban arterial roadway with an 80 -foot wide right-of- way. Baltic Avenue is a two-lane minor urban arterial with a 60 -foot wide right-of-way. No CIP projects are currently programmed for either of these streets. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Virginia Beach Blvd 11,900 ADT 14,800 ADT (Level of Existing Land Use — (2008) Service "C") 1,050 ADT 22,800 ADT' (Level of Proposed Land Use 3 - Service "D") Capacity 80 ADT (9 Peak Hour) 27,400 ADT' (Level of Service "E" Baltic Avenue 2,700 ADT 7,300 ADT (Level of (2006) Service "C") 10,700 ADT' (Level of Service "D") Capacity 13,100 ADT' (Level of Service "E" Average Daily Trips 0.64 acres of RT -3 zoning 31,500 SF specialty retail and 1,500 SF automobile care center WATER and SEWER: This site is connected to City water and City sanitary sewer. TAMI WALKER MOOK Agenda Item 10 Page 2 EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the conditions below. Evaluation: Staff finds this request for small engine repair to be in conformance with the Comprehensive Plan providing all work is preformed within the repair facility; however, there is still some concern about the engine noise that may occur. The increased noise level may come from patrons leaving the shop who find it more convenient to turn on to the residential section of 16th Street or it may come from the repair facility itself if doors or windows are left open and insulation is not sufficient to muffle the sounds. Though the City cannot monitor each patron leaving the facility, the owners of the small engine repair should encourage their patrons to exit by way of Virginia Beach Blvd to avoid any conflict. The applicant should also insulate the area where the engines are tested to muffle any loud engine sounds. CONDITIONS 1. The hours of operation for the retail and service department are Monday, Tuesday Thursday and Friday from 10:00 a m until 6.00 p.m., and on Saturdays from 10.00 a.m. until 5.00 a.m. 2. There shall be no outside repair of engines and motorcycles on the site. 3. There shall be no outside storage of equipment, engines, tools, fuel, or motorcycles on the site. 4. Engine repair work is to be done with the doors and windows closed. 5. The applicant shall provide additional sound insulation inside the area where the engines are in use to muffle the sounds of the 'revving' of engine motors. 6. A Certificate of Occupancy shall be obtained from the Building Official for the appropriate use group. 7. This use shall be administratively reviewed in one year to insure compliance with these conditions. 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 are valid. 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. TAMI WALKER MOOK Agenda Item 10 Page 3 AERIAL OF SITE LOCATION TAMI WALKER MOOK Agenda Item 10 Page 4 Lor -6 L -Or �^K -26 ULK, -26 -.8LK. MK, -25 s cationof repair.facility Lrp Rl.—, TAW v,ft '2 241, — '�AV 7—�i735r ELEV.- IU& ti J i R —,K— E, -t, Gtr Lor -6 L -Or �^K -26 ULK, -26 -.8LK. MK, -25 s cationof repair.facility Lrp Rl.—, TAW ELEV.- IU& ti .7r,*J tl,4 j —,K— E, -t, Gtr tv vl," t4 -VIRGIANA" BL=XCH BOULHVARD o' -w - SITE LOCATION TAMI WALKER MOOK Agenda Item 10 Page 5 EXTERIOR PHOTOGRAPHS TAMI WALKER MOOK Agenda Item 10 Page 6 INTERIOR PHOTOGRAPH TAMI WALKER MOOK Agenda Item 10 Page 7 14� lit' r 1L� p- [D�ISCLOSU�RESTATEMENT O APPLICANT DISCLOSURE Ftheapplicant is a corporation, partnership, firm, business, or other unincorporated complete the following: pplicant name followed by the names of all officers, members, trustees. partners,etc. below. (Attach list if necessary) 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) w� ❑ 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, 1 partners, etc. �b./elow: (Attach list if necessary) t -A.,, A NGI'itilfrRr , Ah G , 2. List all businesses that ave a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) M//q ❑ 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 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? Conditional Use Permil Application Pape 9 of 10 Revised 7/312007 v 1�1 V TAMI WALKER MOOK Agenda Item 10 Page 9 W W c/:) Comm') IL, DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) A ' "Parent -subsidiary relationship" means "a relationship that a xists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application 11`+pis Uo.r1 Print Name t;�r✓�+r� _3 J ��,h Print Name Conditional Use Permit Application Page 10 of 10 Revised 7/3/2007 TAMI WALKER MOOK Agenda Item 10 Page 10 Item #10 Tami Walker Mook Conditional Use Permit 501 Virginia Beach Boulevard District 6 Beach January 13, 2010 REGULAR Al Henley: The next item to be heard is agenda item 10, Tami Walker Mook. An application of Tami Walker Mook for a Conditional Use Permit for a small engine repair on property located 501 Virginia Beach Boulevard. Tami Mook: Hi, my name is Tami Walker Mook. I am the owner of Diva Customs located at 501 Virginia Beach Boulevard. Even though Diva Customs has been an operating shop for 3% years, as a retail and service department for motorcycles there has been a bit confusion on the service department end of it. Actually, believe it or not my accountant brought it to my attention that my business license did not have the term service on it. It was only retail. As I was here in this building getting some personal DMV work done, I decided to stop by the business office license just to make sure everything was cleared up, and they were pleased to put service department on my business license. That kind of opened up the door of how you've had a service department for 3%2 years and we didn't know about it. So I actually, through all of this, did go back through some paperwork because when I applied for a business license I did mention that I was going to have a service department there. I'm not sure if you remember the building at 501 Virginia Beach Boulevard but it used to be Things Unlimited. It was a pretty rough building. It took a long time to kind of clean it up. It took two months just to get the front end of the place cleaned, and it took about six months to get the back opened up and running the service department. Being a woman, I have a whole new appreciation for men and their tools because I thought that my $5,000 limit on tools would actually fill a service department, and was greatly wrong. That barely pays for the box to hold them in. It took a while to actually afford to establish the service department. But I did go back. I originally got my business license for retail in March 2006, and I did go back in November 2006 to apply for the service department business license. I do have copies. I didn't know there were so many members so I didn't make a whole bunch of copies but I do have copies of the business license. I have copies of what my shop looks like. I'm often referred to as the Biker Boutique because it is a very, very pretty motorcycle shop. It is very misleading. People don't think that when they see the front of the shop that we actually work on motorcycles as it is a very pretty shop. I've brought some copies. And, I also know there have been a couple of complaints of noise and issues concerning my shop. I know that a neighbor has sent in a couple of emails. What I have done, and one of the things that was brought up to me that I rev up motorcycles up until midnight, and driving illegal motorcycles in front of their home. First, I want to address the issue about illegal motorcycles. My husband is a police officer and has been a police officer for 10 years. We would never risk his job or the shop trying to ride an illegal motorcycle. In fact you have to be pretty good and pretty sharp to even spot what is illegal on a motorcycle as it flies past your house, and the issue about revving motorcycles up until midnight. My hours are until 6:00 p.m. during the week and 5:00 p.m. on Item #10 Tami Walker Mook Page 2 Saturdays. I do not have any employees there until midnight. And, I would love to know if somebody was at my shop revving up their motors. In my defense, I have brought copies of my security log, which shows and I've actually highlighted them in red that I do close at 5 or 6 o'clock every day. There is nobody there. If they had to come into my shop to work on a bike it would show up on the security documents. I'll pass this to you. And, also on my behalf is I am concerned that people might have an issue with the sound. I have been there for 3 %Z years. I've have no one ever come into my shop. No one every send me an email. No one ever called me saying they were complaining about any noise. I have also included my own petition with surrounding businesses and residents. I have a couple of emails attached also. This one particular petition is very important. This is the group that is connected to our building. It is the Virginia Beach Recovery Center. They are there in the evenings when I'm not there. If I am bothering anybody up until midnight these are the people that would know about it, and they have signed on my behalf. I also have a letter that this is the woman who lives the closest to our building. You literally can reach your hand out and touch her apartment that she leases. This is a letter stating that she has lived there for 4 years and has had no complaints about the noise coming from the shop. That's it. Joseph Strange: Okay. Thank you. Does anyone have any questions? Okay, if you stand by we have one person in opposition. Al Henley: We have one speaker and it would be a Kevin Payne Kevin Pyne: Pyne. Al Henley: Pyne. Kevin Pyne: Good afternoon. Ed Weeden: State your name for the record please. Kevin Pyne: Yeah. Pardon me. Kevin Pyne, 503 16`h Street, directly behind Diva Customs or almost direct behind. I'm also speaking on behalf of at least 7 other families who live right around, within 300 feet, and that is notarized and sworn too. First of all just to comment on the midnight thing. Nobody around there ever mentioned midnight. Both Kurt and I, Kurt lives at 507 16`h Street, just two doors down. He and his wife mentioned, and as a matter of fact, this is how this started. Donald Horsley: Just pull it right off. The little black thing and point it over there. Kevin Pyne: Okay. Kurt is right there. The 4th one in, and I'm the second one in. Susan is the first one in but any way. We did hear them carry on until 9:00 p.m. one time. But before I even get to that, when we moved in 10 years, the neighborhood was pretty rough. It has improved significantly. As a matter of fact, everybody that is on that list are all professionals, who are attorneys, nurses, teachers, CPAs, business owners, such as Kurt. You must have read his thing. He is a defense contractor, a Naval Commander, and so on, and so forth. We're all professional Item #10 Tami Walker Mook Page 3 people. Our property values have tripled, land value, even my existing house. I got an increase. It appreciated rather than depreciated. Of course our taxes went up likewise but who cares. We realize our values have gone up. The houses that were put up next to me at 505 and 507, and I don't know if you want me to keep going back to there. Right there at 505 and 507 (pointing to PowerPoint). Those units sell for over $700,000. Kurt, in 507 bought the whole thing for a million, and as an investment property. Okay? The whole area was kind of noisy. We had a lot of noise and it wasn't just jets. We had noise from the car wash across the way here with the car stereos, and that would go on all night long. Even the school that who had outdoor HVAC unit was approved by the Council 10 years ago. That had problems in the school system. The engineers admitted it and have been working on it and so forth. But nonetheless, all of these things, the drunks, the drug users and there used to be people that used to fight in the street all night long, basketball games on the school, Cooke School, which is over here that went on all night long. All that sort of saying with the help of the city codes, and the laws, the neighbor had gradually improved. So, we have this pretty fairly nice neighborhood. People moving in who took care of their houses. I don't know if you can see them. Right there. Susan, she is a real estate agent. She wants a million and half. Her property is also on the historical register. The first house in Virginia Beach, and I'm right there. These, we hope to get at least $600,000. These are all well care for houses with nice gardens and things like that. We got a nice neighborhood. We got neighbors that talk to each other, and no one of us began all this. We thought we were up the creek when they moved in, Diva Customs. We thought it was going to be bad. It was zoned for light commercial, as I was told, which are stores and things like that. Okay. No big deal. We didn't know it was going to be motorcycle repair. And of course we didn't say anything again that motorcycle repair didn't start some months afterwards. Once it started, it was extremely loud. These things were big. We're you at the holiday parade at all? The motorcycles? Was anybody there? Janice Anderson: Too cold. Kevin Pyne: Okay. These are loud. The smallest one that I've ever seen there was probably around 650 to 700 something CCs. If you know anything about motorcycles or the big Harleys, the 1200, the 1300s and up, which rumble your house, bringing the increasing motorcycle traffic in general in the back area, nobody back there, going all the way back to 10th Street, which is way up there, there is only one person that lives there, and it somewhere around 12th or 13th that has a motorcycle. But we had a lot more motorcycle traffic back there, day and night. Test riding? Being tested, whether it was them during repair or people getting on their bikes, and ride down and ride back, so it was pretty sure it was test riding, and the noise? It started to get bad but then it got worse when they got this new machinery. A dynamiter, which they have to rev up the bike as loud as it will go, and then it winds down. Then it goes up again and then it goes down again. I heard one particular bike. It had to be the same because you tell by the sound of the engine, it took all afternoon. It kept going up and down, and they were working on my computer, and you could hear it in my house. Okay? Now granted noise you can hear jets in my house. Sure. Even the navy did something to improve that. Okay? I spoke to someone personally at the Pentagon to see that it got done. Like I said, we dealt with the all the noise issues in the neighborhood. When you can hear it in your house constantly, it gets a little after a while. It is not like that parade once in a while or the concert venue at the Beach once in a while Item #10 Tami Walker Mook Page 4 during the summer. It was like constant. It is every day. My wife was a corporate attorney who works out of the home also. When she is not at home, she is at work at home. She is going nuts with what is going on. I can't stand this. I can't stand this. She can't work, like wise with myself. But anyway, we were concerned primarily with our property values. I would not have bought had they been there. Not at all, and neither my wife or myself. I know Kurt wouldn't have, and he put big money into that two unit condo there as an investment. Okay? There were people on the street that really didn't care. I talked to the girl. She talked to her right behind her the renter. She told me she wanted to sign it but she says I really can't. I went over there. I like them. My four brothers are bikers. So, that was that. I ran into a couple of other people that didn't care either. I ran into one person who completed blew me off by saying you're probably one of those people who don't like jet noise. W hat are you going to do? So, that's not the case. This is cruel and unusual, and without some sort of, and the building is not designed for it. I seriously doubt it has OSHA or EPA approval but sound blocks for these things. It is not designed for it. These are not little engines. These are very loud engines. In my email, I said and my mechanic is right down the street at the gas station, the Exxon -Mobil there. Even over there it is not that loud. You know? Bikes are much louder than the cars. I've heard them on the freeways and whatever. Please take this into account. It is not just me. It is not just my wife. It is those people that have signed. I only went to 11 houses. That is hitting 80 percent. It is also and I pulled this off their website. Just to give you an idea of the size. These are good size bikes. Okay. These things are not quiet. It is not just repair. It is manufacturing. Joseph Strange: Can you kind of wrap of things? Your time is up. Kevin Pyne: Okay. Thank you. I think I've got everything. Joseph Strange: Alright. Are there any questions? Ronald Ripley: Oh by the way, your house looks great. The houses that were built down the street, we looked at them the other day. It is very impressed. Good example of what should occur throughout the neighborhood, quite frankly. Good job. My question is and you may have said it during your discussion there. Maybe you missed it. The service has been operating for a little bit of time now, have you been over there to talk to them about say, what can we do to kind of mitigate this so you can live there and they can reside there, and maybe you guys can get along? Tell me about that. Kevin Pyne: I went over there twice. I don't know if anyone else went over there. I went twice and both times I was completely ignored. She just looked at me like, get out of here you know. didn't get a response. As far as the other people, I don't know if anybody went or not. Ronald Ripley: Do you see any medium ground though if there was something that could be worked out that you would be happy with? Kevin Pyne: Speaking for myself, if they stay there, there has to be some sound proofing and speaking on behalf of some of the people there, we don't want the bikes in the neighborhood. Okay? We don't want them to be test ridden. I would say most of the people agree with that. i Item #10 Tami Walker Mook Page 5 As far as listening to it in my house, I don't want to hear it. Okay? And actually, my house is pretty soundly built too but I am pretty much right behind them. And, it is really awful. I have a nice garden in the back that I like to work in. I really can't. I mean, God, this is constant. You know, it's not like the lawnmower once in a while. Joseph Strange: We have another question for you. Jan? Janice Anderson: Yes Mr. Pyne. One of the conditions is they provide additional sound installation in that area to try and cut down on that, so that would be one of the requirements. The second thing is that the conditions didn't have any time limitation. She did mention what her hours were but we're going to add another condition that would limit the hours so you wouldn't have anything past like 6:00 p.m. where you would hear any kind of sound from there. Kevin Pyne: Right. But you also got Saturdays. Again, I'm not speaking for myself. I'm giving you everybody's concerns here. There are some adamantly against it because of property value issues. Okay? Kurt called. He is a little bit more passionate even. There are some people that are concerned about that so I can't say these conditions will meet our conditions. Some may meet my conditions and that is the sound proofing sort of situation, and riding the bikes on the back streets. I would be willing to give it a go if that was the case. Alright? Even though I still really don't care to see all the bikes around there, I'm afraid that someone is going to do like I would do and say I don't want to buy this place, not with that there. Alright? Not in this price range. We are looking for people that are going to buy our property are going to have to be like us, somebody like you, you, professional people. Right? Janice Anderson: Thank you very much. Kevin Pyne: Thank you. Joseph Strange: Are there any other questions? I have one question. Have you ever called the police or anybody and complained about the noise? Kevin Pyne: We talked. I'm on the Second Precinct CAC. We talked with Barbara Clark, Captain Zucaro. We discussed it but we figured from the time they moved in, there was nothing we could do about anything. The noise is not really a noise issue because they are bound by the other existing, and it wouldn't be considered unreasonable. Unless, I mean, there is an unreasonable noise section 8(6) or 8(2). I forget. Their definition before they can do something they have to have a solid definition. It just doesn't work that way. Joseph Strange: Alright. Thank you very much. Kevin Pyne: Okay. As far as those signatures, do you need that? I'm not sure I have a copy. Janice Anderson: Mr. Ripley, it might have ended up with him. Do you have the petition? Right there. Item #10 Tami Walker Mook Page 6 Ronald Ripley: City attorney. Janice Anderson: Mr. Macali's got it. Bill Macali: These we need. Kevin Pyne: But we have all the signatures. May I have a copy? Joseph Strange: We have one other speaker in support. Bill Macali: Take them over to Mr. White. Al Henley: We have another speaker in support Mr. Edward Hollinger. Edward Hollinger: Mr. Chairman and members of the Commission, good afternoon. My name is Edward Hollinger. I'm the Head of Friends School, Inc. We are the owner of this particular property. I reside at 505 Southside Road, here in Virginia Beach. The location of our office is at 1537 Laskin Road, here in Virginia Beach. I wish to speak in favor of granting the Conditional Use Permit for this operation. I'm here to testify too this afternoon that the applicant has been a responsible tenant for the 3%2 years she has occupied this building. I believe the operation is in keeping with the essential character along Virginia Beach Boulevard, and the use serves well the needs of this community. The applicant in the years of occupying this building has done much to improve the building both to the interior and the exterior. I'm confident that the continued use of this operation at this site would not be detrimental to the character of the neighborhood. Further, I'm confident that the applicant will be an excellent neighbor, an excellent tenant, and doing whatever is necessary to maintain the integrity of the structure, and to address whatever noise issues that you would need necessary. And that would continue to the quality of the neighborhood. So, I urge your approval of the Conditional Use Permit in this case. Thank you for your time and the opportunity to speak to you this afternoon. Thank you. Tami Mook: Tami Walker Mook again. I would just like to address a couple of issues with the sound. First of all just to clarify anything, this is actually the first time that I even laid eyes on Mr. Pyne. He has never come into my shop and addressed me about the issues he's had. The piece of machinery that he is talking about is a dynamiter. We use it for diagnostics on motorcycles. I call it a treadmill basically for a motorcycle. We barely use it two or'three times a week. We do not even use it every single day. It is an enclosed room surrounded with sound proof insulation inside. It has an air vent inside that when the dynamiter is running we turn them on to help with the exhaust fumes. Since I have taken over the building, the back believe it or not was in worse shape than the front. We actually installed insulation. We put new sheetrock up. We removed all the windows and installed unbreakable glass and insulated windows so we have done very much to try insulate and take care of the sound. But, we are a very welcoming shop. We have people come in all the time. We would not be able to operate if we constantly have a motorcycle running in the back. It is absolutely untrue that for the 8 or 9 hours that we are there that we are having motorcycles being revved up and run. First of all, we have a great exhaust system but it is not that great. We could not just keep a motorcycle running for 8 hours, Item #10 Tami Walker Mook Page 7 plus the only thing that separates our service department from the front part of our shop are two glass plain doors, French doors, very beautiful doors. They are not going to protect the sound and keep the sound out from the back to the front. So, because of the front, we would not just be able to keep a motorcycle running in the back. I have absolutely no control over who rides motorcycles in the back of the shop. We have asked that people please leave out through the front and don't go to the back. There is a gentleman that owns a motorcycle. He owns the car dealership at Mediterranean and Virginia Beach Boulevard. He does have a motorcycle. We've asked him not to; please go the back route. Not down 16th and to remain on Virginia Beach Boulevard. I've also contribute quite a bit to the community. We have been a part of Holiday at the Lights, the parade that he had brought up. We helped the beach events with an antique car and motorcycle show that they had at the boardwalk. The City came to me because they do not have the greatest turnout for the motorcycles the year before, and asked for my help. We were able to have 30 something bikes included on there. I, actually along with a few other members of my crew, I actually judged the show. Like I said, we have sponsored numerous motorcycle events, charities. We have given thousands and thousands of dollars and products to charities for the Virginia Beach area, and at most. We have been because of my husband being a police officer, we do a memorial ride for fallen officers, either begin or ended or had the entire memorial at Diva Customs. I will do the best that I can. I'm sorry if I've disturbed anybody. This is actually that I first that I've heard truly of any complaints about sound, but I will go above and beyond to make sure that we try even harder to make sure we don't disturb anybody in the area. Joseph Strange: Are there any questions? Janice Anderson: The conditions require you to add additional insulation. Have you looked into that yet? Tami Mook: I can look and see what more we can do. I can show you right here. If we can go back to the aerial view of this I can show you. Okay. This is the building right here. The white part that I'm shaking on right here is actually the recovery center. I am next to them right here. actually have right there, I don't have the entire back part of the building. I have to about where the pointer is right now. We extended, I think about 16 feet back, which is storage. That is probably the only place that we have not included anymore extra insulation in because it is storage. We don't run any kind of motorcycles back there. But with this, I can show you that this is Mr. Pyne's house. It is not like we abut against him. We actually a nice little distance away from hm. But, I would try to at least take the extra room that we have taken over and see what we can do about adding some more insulation, and see if we can buffer it a little bit more. Janice Anderson: Could there be just another layer of insulation in your existing work? Tami Mook: Absolutely. We do have the sound proof panels against the wall but I don't think they are on the ceilings so we can provide them on the ceiling, and that would add a little bit more. Item #10 Tami Walker Mook Page 8 Janice Anderson: Okay. What are you hours for engine repair? Are they less than the store is open because I`m just trying to see if we can limit them a little. Tami Mook: No. They are the same. We are open from 10:00 to 6:00, Monday, Tuesday, Thursday, and Friday. We are closed on Wednesdays and 10:00 to 5:00 on Saturdays. And we are closed on Sundays. Janice Anderson: Okay. And that is when you work your workshop to within those hours. Tami Mook: Yes ma'am. Joseph Anderson: Are there any other questions? Do you have anything else new sir? Ed Weeden: Come back to the microphone. State your name for the record again. Kevin Pyne: Kevin Pyne, 503 16`h Street. Anyway, nobody said they were revved constantly all day long. In other words, they do take a break every few minutes. Joseph Strange: Thank you. Kevin Pyne: Okay. But, they work with the garage door open. I don't know about the exhaust but they work with the garage door open. I've gone over there and seen it. Joseph Strange: We're going to address that. Kevin Pyne: Okay. And the noise, you can hear it down the street. Joseph Strange: We're going to address that. Kevin Pyne: Thank you. Joseph Strange: Thank you. I'll open it up for discussion. Janice Anderson: I'm very familiar with this location, and with Mr. Pyne's property. The neighborhood has increased in values, and is being renovated. There are nice homes being constructed there or additions. The issue here, and we're going to see this more and more down at the Oceanfront, this neighborhood abuts right up to commercial property. There is commercial property on Virginia Beach Boulevard. This is going to be commercial property whether it is Diva Customs or something else. So, what I'm looking at is trying to buffer it as much as we can. There is going to be some noise there. It is near the Oceanfront. The Oceanfront itself during the summer is noisy. There is a school right next door to it. You've got school children playing outside on the field. They are loud too. Mr. Pyne, there is some noise that he hears from this facility, so I want to try to lessen that noise to him, and see if we can't do it in the conditions. This is a high noise zone noise too. We've got airplanes flying above so there is a lot going on. It is a great place to live. It is a great area, but I think both of these entities can live together Item #10 Tami Walker Mook Page 9 here, and I'm just trying hopefully we can find a resolution. The Diva Customs, they have done an amazing job to this property. I remember when it was the thrift store. I'm sure it took you more than two days or two weeks to clean that facility up. It is a very unique shop. It is very popular with the tourists. It is clean and very well taken. I knew there were some repairs back in there, and this is the first time that I've heard of any kind of complaint. So, far as the noise, there is going to have to be some additional. I would suggest that a requirement be there would be additional sound proofing on the roof and inside. Also, Mr. Pyne mentioned that some work has been done with the doors opened. It probably has and that is probably where he is hearing most of the noise. The conditions are they would have to closed. Everything would have to be inside. If it is done inside and you need a more extensive exhaust system then that is going to have to be a cost that you are going to have to bare. It is a nice neighborhood. They don't need to listen to an open door because that noise will carry. Also, I would like the condition, like I mentioned earlier during the informal to limit it to those working hours, so someone can't work on a bike late at night or after 6:00. The other thing, as so far as Mr. Pyne mentioned motorcycles going up and down his street. I don't know what we can do about that. There are several motorcycle owners in my neighborhood, you definitely heare when they leave the house. But unfortunately the owner of the shop has asked them to take Virginia Beach Boulevard out and not 16`h Street, so I don't they there is any kind of condition I could help Mr. Pyne with that. But, I would be willing to approve the application with the owner knowing how concern the neighbors are, and how it important it is, and with those extra conditions. David Redmond: I mean, a motorcycle properly licensed is a legal vehicle on the street. It is not like we can make them go away. I was just going to suggest and I read it in the write-up too. You mentioned it yourself that you encourage your patrons to head out by Virginia Beach Boulevard. In situations like this where people kind of bump up against one another, sometimes that is as much as you can do. I don't know a thing about sound insulation or sound attenuation, so I'm not going to pretend that I do or where it might go or the rest of it. But I do think to the extent to which you can press upon your patrons, please go that way. It makes a different. Really press upon it. Stick a sign behind the counter or whatever when they get rung up in their repairs. That will, to some extent, that human beings can control, hopefully mitigate some of the conflicts. I think it is a wonderful, thriving, viable business. I hate to try and hem a wonderful thriving, viable businesses and I commend you for that. I just urge you to do your utmost to ask your patrons that if you like it here, and you like my repair work, head that way please because that does make a big difference. Thank you. With that said, I understand the noise everybody, and in the modern world it is very difficult to get away from it. The gentleman who spoke and opposed it, I can certainly feel for him to extent to which you can work with the sound. Again, I don't know anything about how you limit sound within a building like that. It is my hope that you will do your best there too. Nobody would like that. Joseph Strange: Are there any other comments? I would just like to say that this is a viable business but they didn't have a license to do service there. Therefore, the community does need some type of protection. It doesn't make any difference whether they are $600,000 homes or $200,000 homes. They are still people living there, and they need a certain amount of protection. I can support this application with the additional insulation not only in the walls but in the Item #10 Tami Walker Mook Page 10 ceiling, and do everything we possibly can with the doors shut, and if anyone wants to make a motion to that effect, I'll be happy to support it. Janice Anderson: Chairman, I make a motion to approve with the modified condition requiring additional insulation. It is already required that all work be done inside with the doors closed, the windows closed, and the limitation of any work being done on the motorcycles to the store hours as listed. Joseph Strange: We have a motion made by Jan Anderson with the modifications. Do I have a second? We have a second by Kathy Katsias. AYE 11 NAY 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ABS 0 ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has approved the application of Tami Walker Mook with the modified conditions as stated. cvi� 10 IWI To: The Virginia Beach Planning Commissioners and Council Members: We, the undersigned residents and home owners of 16th Street and Baltic Avenue do hereby protest the granting of any conditional use permit or variance to Diva Customs located at 501A 17th Street for the purpose of small engine repair (motorcycles). Diva Customs generates very loud noise from their repairing motorcycles at their location and by test driving them on our streets. We are located nearest Diva Customs and no further than six houses away. Homeowners: Signature Printed Name Address Date !J AGliLGl J. Signature \ _ ' Printed Name) Address i� Date �1 J 'D� t V1SP 1 nd'V�IPi� tri s S �In c' ,� r� > �� GENERAL AFFIDAVIT Commonwealth of Virginia City of Virginia Beach I, the undersigned affiant, KEVIN D. PYLAE, of Virginia Beach, Virginia, hereby swear and testify that I personally collected each and every signature on the attached Petition pertaining to "Diva Customs", 501-A 17th Street, Virginia Beach, Virginia 23451, and further state that each and every person who signed said Petition is personally known to me to be a neighbor either owning, or renting residential property within 300 feet of "Diva Customs," a motorcycle shop. Dated: j' -,Z - zoicZ,=:-= Affi r Kevin D. Pyne I, Dale V. Berning, Esquire, the undersigned Notary Public in and for the City and State aforesaid, hereby certify that Kevin D. Pyne, whose name is signed to the foregoing General Affidavit, personally appeared before me and signed and acknowledged the same before me this 12d' day of January, 2010. ``rN�11111 N 1/ry���i [Notary`` P ONWE�y AEG61Nnfi0N LA0. �: W c� ' NOTARY PUBLIC 02/28/4013 My confit- is "Zoning with Pecorded Conditions/Proffers CUP _ Car Wash "uy �7 4rok CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: AUTOBELL CAR WASH, INC. / MESSER 1060 INDEPENDENCE BOULEVARD, LLC, Conditional Use Permit, car wash, 1060 & 1064 Independence Boulevard. BAYSIDE DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The applicant requests a Conditional Use Permit to allow development of the site for an automated car wash within a 2,260 square foot building. The site is currently in a state of abandonment, consisting of a vacant building, formerly used as a restaurant. The site is zoned B-2 Community Business. ■ Considerations: The existing site, which consists of two recorded lots, utilizes a single vehicular access on Independence Boulevard, and the submitted plan depicts this ingress - egress point to remain as the only access on Independence Boulevard. The location of the proposed 2,000 square foot building is along the northern property line. There is a single lane for vehicles to queue for the car wash drive-through and up to 15 parking spaces for customer and employee parking. The site is almost entirely impervious. The Conditional Use Permit request for a car wash at this location is acceptable. At the Planning Commission hearing, Staff expressed concern about the size and appearance of the entry feature, which included a large, yellow bell. Staff's recommendation to the Planning Commission included a recommendation for a reduction to the size of the bell tower and a change in the roof color from bright red to a 'neutral' color. As noted in Condition 2, below, the Planning Commission's recommendation to the City Council includes a condition requiring modification to the building design. The applicant has submitted revisions to the design, and a rendering of that design is attached. The design is acceptable to Staff. There was no opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council with the following conditions: Autobell Car Wash, Inc. Page 2of5 When the property is redeveloped, it shall be in substantial conformance with the exhibit entitled, "Preliminary Sketch AUTO BELL, 1060 Independence Boulevard, Virginia Beach, Virginia," prepared by Commercial Site Design, dated 10/28/09, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department, with the exception of modifications required by the Department of Public Works and any other City departments in order to comply with City regulations and policies. 2. The applicant shall provide a revised architectural plan of the building to the Director of Planning for approval prior to the submission of the Site Plan to the Development Services Center; said plan shall lower the height of the tower such that the top of the tower is 5'/ feet above the parapet wall, the tower shall not include a bell and shall be closed in, and the colors shall be approved by the Director of Planning. 3. The site shall be allowed one freestanding sign, which shall be constructed as depicted on the exhibit entitled, "Auto Bell, Car Wash," dated December 20, 2009, with the exception that said freestanding sign shall be limited in height to eight (8) feet. Any deviations to the design or appearance of the sign shall be submitted to the Planning Department for approval prior to the issuance of a sign permit. There shall be no electronic display components (LED and similar) installed on the sign or on the building. 4. The signage shown on the exhibit in Condition 2 above is subject to review by the Zoning Division during the sign permit process and shall not be permitted as shown unless it meets the provisions of the City of Virginia Beach Zoning Ordinance. No additional signage shall be permitted on the building. 5. No window or outdoor advertising banners, pennants, streamers or other such visual devices beyond those permitted by the City Zoning Ordinance shall be permitted on the property. 6. Unless otherwise permitted by the Department of Public Works/Traffic Engineering, the following shall be depicted on the Site Plan submitted to the Development Services Center: a) Development of the site shall include a 25 foot curb line radius for the vehicular access with a right-in/right-out "pork -chop" island to physically separate the entering and exiting vehicles. b) Development of the site shall include a median that extends from the vehicular access island into the site approximately 50 feet, Autobell Car Wash, Inc. Page 3 of 5 directing entering vehicles away from stationary vehicles parked in the towel drying stations. c) Development of the site shall locate the vehicular access as close to the southern property line as possible without overlapping the property line. d) Development of the site shall include a 30 foot 'throat' length for the vehicular access in accordance with the City of Virginia Beach Public Works Specifications and Standards. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: �, . CUP - Car Wash REQUEST: Conditional Use Permit (car wash) 2 January 13, 2010 Public Hearing APPLICANT: AUTOBELL CAR WASH, INC PROPERTY OWNER: MESSER 1060 INDEPENDENCE BOULEVARD STAFF PLANNER: Carolyn A.K. Smith ADDRESS/ DESCRIPTION: 1060 & 1064 Independence Boulevard GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14784694210000 BAYSIDE 0.8 acre Less than 65 dB DNL 14784693230000 The applicant requests a Conditional Use Permit to allow SUMMARY OF REQUEST development of the site for an automated car wash within a 2,260 square foot building. The application states that hours of operation are proposed as 7:00 a.m. to 9:00 p.m., seven days a week. The existing site, which consists of two recorded lots, utilizes a single vehicular access on Independence Boulevard, and the submitted plan depicts this ingress -egress point to remain as the only access on Independence Boulevard. The location of the approximately 2,000 square foot building is proposed along the northern property line. There is a single lane for vehicles to queue for the car wash drive-through and up to 15 parking spaces for customer and employee parking. The site is almost entirely impervious. The photograph of the proposed structure depicts brick columns spaced equidistant along a fagade of storefront windows with EIFS along the top. Horizontal ribbons of red and blue stripes separate the glass from the EIFS above. An entry feature, with a large, faux, yellow bell is depicted under a standing seam metal roof. Based on Staffs opinion that the bell feature is not consistent with the design guidelines of the Comprehensive Plan or with the Zoning Ordinance's provisions for retail design, the applicant also provided an alternative design that eliminates the yellow bell but retains a slightly altered tower feature. AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Vacant buildings (former fast-food restaurant) and asphalt parking lot. SURROUNDING LAND North: Restaurant, financial institution / B-2 Community Business USE AND ZONING: District South: . Retail Uses / B-2 Community Business District East: . Medical Offices / B-2 Community Business District West: . Independence Boulevard Mixed Retail / B-2 Community Business District NATURAL RESOURCE AND The sites are located in the Chesapeake Bay watershed. The majority of CULTURAL FEATURES: the property is impervious, as it is developed with buildings and parking lot. There does not appear to be any significant environmental or cultural features. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Independence Boulevard is a six -lane divided major urban arterial. The MTP proposes a divided facility with bikeway within a 150 -foot wide right-of-way. Currently, this segment of roadway is functioning over -capacity at a Level Of Service F. There is a proposed but unfunded Roadway CIP project in the vicinity of this site. Independence Boulevard (CIP 2-045) is for construction of a six -lane divided highway within a 165 -foot wide right-of-way along Independence Boulevard from Northampton Boulevard to Haygood Road. This project will also include full improvements along Independence Boulevard at the Haygood Road/Wishart Road and Northampton Boulevard intersections. If this project is funded in the future, the subject site may be impacted by the Independence Boulevard/Haygood Road/Wishart Road intersection improvements. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Independence 51,685 ADT 26,300 ADT (Level of Existing Land Use — 958 Boulevard Service "C") — 48,200 ADT ADT' (Level of Service Proposed Land Use 3— 780 "E" ADT Average Daily Trips ' fast-food restaurant 3 automated car wash WATER: This site is connected to City water. There is an existing 6 -inch and 12 -inch City water line along Independence Boulevard. SEWER: This site is currently connected to City sanitary sewer. Analysis of Pump Station #341 and the sanitary sewer collection system may be required to ensure future flows can be accommodated. There is an 8- AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 2 inch City gravity sanitary sewer line to the site that crosses the adjacent property to the east within an existing 15 -foot wide utility and drainage easement. There is also an existing 36 -inch force main along Independence Boulevard. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Comprehensive Plan: The land use planning policies and principles for the Suburban Area focus strongly on preserving and protecting the overall character, economic value, and aesthetic quality of the stable neighborhoods located in this area. The established type, size, and relationship of land use, both residential and non- residential, in and around these neighborhoods should serve as a guide when considering future development. Relevant to this proposal is the Comprehensive Plan's 'General Community Appearance Guidelines.' Overall, the proposed building is consistent with the guidelines; however, of concern is the size of the bell tower feature, as it is disproportionate to the main building, primarily due to the scale of the tower. The Guidelines note the following regarding the importance of proportion to good design: Proportion is the relationship of one dimension to another. If proportion is correct, order seems to prevail. Each component of a building should have good proportion (height to width of a door, for example), the relationship of each component to each other (wall to window, for example) should express good proportion, and the ratio of building mass to the spaces around it should possess good proportion. Evaluation: The Conditional Use Permit request for a car wash at this location is deemed appropriate and recommended for approval; however, the design of the bell tower feature as submitted cannot be supported. Staff had initial concerns about the size and appearance of the entry feature with the large, yellow bell and met with the applicant to discuss ways to modify this feature. Staffs initial recommendation was to simply eliminate the tower, which is not acceptable to the applicant. As a compromise, Staff recommended a reduction to the size of the bell tower and a change in the roof color from bright red to a 'neutral' color. Other than this single issue, the proposal will be a good redevelopment of an otherwise vacant and deteriorating site. Unfortunately, the applicant does not wish to remove or reduce the tower feature, but has instead offered to remove the yellow bell from within the tower and alter the design of the tower to resemble the outline of the bell, as the shape is an intentional component of the applicant's branding. The shopping center on the west side of Independence Boulevard, opposite this site, has recently completed a substantial renovation — one worthy of a Planning Commission Design Award. This renovation will likely contribute to additional redevelopment of this aging retail corridor. In Staffs opinion, the large bell tower does not reflect the significant upgrades to aesthetics that have occurred and are desired in this area. Simply removing the bell and leaving the rest of the tower as shown at this size is not acceptable. As such, Staff advises approval but only subject to the recommendation in Condition 2, below, that requires either removal of the tower feature or a reduction of the size of the tower feature by one-half. AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 3 The Trip Generation volumes provided in the Traffic section of this report for both the existing and proposed land uses are based on a very limited number of studies available through the Institute of Transportation Engineers (ITE) Trip Generation manual. The car wash land use has the potential for generating enough traffic to meet the warrants for a right -turn lane; however, definitive numbers are not available to make an accurate determination. Based on this, Staff recommends requiring improvements to the entrance that will help ensure unimpeded traffic flow into the site without requiring a right -turn lane. These conditions are listed under number 2 below. Also, other comments will be forthcoming during final site plan review addressing issues such as, but not limited to, stormwater quality and quantity control and parking lot interior and streetscape landscaping. CONDITIONS When the property is redeveloped, it shall be in substantial conformance with the exhibit entitled, "Preliminary Sketch AUTO BELL, 1060 Independence Boulevard, Virginia Beach, Virginia," prepared by Commercial Site Design, dated 10/28/09, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department, with the exception of modifications required by the Department of Public Works and any other City departments in order to comply with City regulations and policies. When the building is constructed, it shall be in substantial conformance with the exhibit entitled, "Auto Bell — Elevation #2," which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. The applicant, however, shall provide a revised architectural plan to the Current Planning Division of the Planning Department for approval prior to the submission of the Site Plan to the Development Services Center; said plan shall either eliminate the "bell tower" or reduce that feature in scale by at least one-half. The standing seam metal roof capping the tower shall be a neutral color instead of the red. 3. The site shall be allowed one freestanding sign, which shall be constructed as depicted on the exhibit entitled, "Auto Bell, Car Wash," dated December 20, 2009, with the exception that said freestanding sign shall be limited in height to eight (8) feet. Any deviations to the design or appearance of the sign shall be submitted to the Planning Department for approval prior to the issuance of a sign permit. There shall be no electronic display components (LED and similar) installed on the sign or on the building. 4. The signage shown on the exhibit in Condition 2 above is subject to review by the Zoning Division during the sign permit process and shall not be permitted as shown unless it meets the provisions of the City of Virginia Beach Zoning Ordinance. No additional signage shall be permitted on the building. 5. No window or outdoor advertising banners, pennants, streamers or other such visual devices beyond those permitted by the City Zoning Ordinance shall be permitted on the property. 6. Unless otherwise permitted by the Department of Public Works/Traffic Engineering, the following shall be depicted on the Site Plan submitted to the Development Services Center: a) Development of the site shall include a 25 foot curb line radius for the vehicular access with a right-in/right-out "pork -chop" island to physically separate the entering and exiting vehicles. AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 4 b) Development of the site shall include a median that extends from the vehicular access island into the site approximately 50 feet, directing entering vehicles away from stationary vehicles parked in the towel drying stations. c) Development of the site shall locate the vehicular access as close to the southern property line as possible without overlapping the property line. d) Development of the site shall include a 30 foot 'throat' length for the vehicular access in accordance with the City of Virginia Beach Public Works Specifications and Standards. 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 are valid. 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. AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 5 AERIAL OF SITE LOCATION AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 6 E�ENDENcE g0i1LEVARD IND PROPOSED SITE PLAN AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 7 a D 1 W N Ley Q 5 oQ Ao�s[4 R E�ENDENcE g0i1LEVARD IND PROPOSED SITE PLAN AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 7 PROPOSED BUILDING ELEVATION - 1 AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 8 MODIFIED BUILDING ELEVATION - 2 AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 9 PROPOSED FREESTANDING SIGN AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 10 1 11/28/06 CUP fuel sales Granted 2 09/25/95 CUP (communication tower) Granted 05/25/99 CUP (recreation facility) Granted 08/03/66 Change of Zoning (RS 1, RS 3, & RS 4 to CG Granted 3 General Commercial) 09/29/69 CUP (dance studio) Granted 06/18/73 CUP (childcare) Granted 12/08/75 CUP (fuel sales) Granted 09/26/77 CUP mini -warehouses Granted 3 11/26196 Change of Zoning B-2 to 0-2 Granted 4 01/10/95 Change of Zoning (0-2 to A-12) Granted 11/17/86 CUP (home for the aged) Granted 11/17/86 Change of Zoning B-2 to 0-2 Granted 5 07/12/05 CUP fuel sales Granted 6 09/09/85 CUP auto service Granted 7 03/28/88 Reconsideration of Conditions Granted 12/02/85 Change of Zoning R-4 to 0-1 Granted 8 12/18/89 CUP auto repair) Denied ZONING HISTORY AUTOBELL CAR WASH / MESSER 10601 )DEPENDENCE Agenda Item 2 Page 11 " 7.r DISCLOSURE STATEMENT 11 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) AutoBell Car Wash, Inc.; CEO - Charles A. Howard II; COO - Charles A. Howard III 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) None ❑ 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) Messer 1060 Independence Boulevard, LLC; Member -- Messer Holding, LLC (Members of Messer Holding LLC are Messer 1999 Family Trust, Michael L. Messer, and Christina Gibson -Messer) 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Messer Holding, LLC ❑ 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 City of Virginia Beach have an interest in the subject land? Yes No X If yes, what is the name of the official or employee and the nature of their interest? N/A Conditional Use Permit Application Page 9 of 10 Revised 7/3/2007 AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 12 0 0 Came") DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Retail Advisors -- Real Estate Services Troutman Sanders LLP -- Legal Services 1 "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, i am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. Appl cants Si nature Print Name Property owner's Signaturd (if different than applicant) Print Name Conditional Use Permit Application Page 10 of 10 Revised 713/2007 AUTOBELL CAR WASH / MESSER 1060 INDEPENDENCE Agenda Item 2 Page 13 Item #2 Autobell Car Wash, Inc. Conditional Use Permit 1060 &1064 Independence Boulevard District 4 Bayside January 13, 2010 REGULAR Al Henley: The next application is agenda item 2, Autobell Car Wash, Inc. at 1060 Independence Boulevard. We have Mr. R.J. Nutter. R.J. Nutter: Thank you very much. Mr. Henley, Mr. Strange, Mr. Bemas. Congratulations. I don't need an election to be on the consent agenda not for denial. So, congratulations. I'm sure you will do a great job. For the record, my name is R.J. Nutter, and I'm an attorney. I represent Autobell Car Wash, Inc. You have a long agenda today, a lot of people, and a lot of speakers today. So, I will try to very briefly describe the application. Mr. Henley, I'm not aware that we have any opposition to this application. We have met with area property owners around us long before we filed the application to make sure they would not have no objection to this use and the building. And they had none. In particular, I would like to point out one of those issues. Can I have the zoning map Stephen? The owners of this office building behind the series of out parcels have, if you all have any recollection of this in your memory, they have taken an active role of development of these parcels. They have opposed many applications for uses on these. They have always been active in the uses that have gone here. As a result of that we met with the doctors at this building before we filed this application to make sure they would not have any objection. They have none. They circulated our application to a committee. They came back to us several weeks later. I just wanted to let you know that we went to that degree of due diligence to make sure we were okay. As staff has indicated to you they have no objection to the use. They think it is a great use, a great location for this use. And, along the way, we ran into the issue of the bell. This is, of course the company known as Autobell. Bell is part of their name, their logo. They historically have a large bell in a tower structure. Either one of those you can look at. In their facilities around the country they have over 46 facilities in North Carolina and in Virginia. And, most of them have this feature. It is their again, their logo, and staff asked us to consider reducing the bell or eliminating the bell. So, we came up with. I think you all have the revised? Stephen White: I don't have the other one. R.J. Nutter: The one in your package, for whatever reason, if you could turn to. Stephen White: They have that one. R.J. Nutter: You do have that one? Page 9. So, we came up with that we would therefore eliminate the bell altogether, and then sort of a upper part of the tower feature had a triangular feature similar to a bell. We thought that would really address Staff's concerns when we Item #2 Autobell Car Wash, Inc. Page 2 presented this forward. When you're dealing with companies and logo features, we might not take it seriously. They take very serious. I understand that. That is my job as their attorney to represent that issue. So, this is what we presented to Staff just before Christmas holiday. They were trying to go to write-up, and we were trying to come up with a solution that would work for everybody, so we submitted this to them. In the interim what we did because then Staff called and said "well, this is a big improvement" but now we think the tower is too big. You eliminated your bell. You worked with that. We appreciate that. We can recommend approval but we would like you to reduce the height of the tower. So, we went out and tried to look at what features are in that area. If I could, I would like to pass out these pictures. I'll show you very briefly. This surprised me because I lived here a long time, and I drive by this intersection, not quite as much as Mr. Redmond apparently, but I drive by this intersection quite a bit. David Redmond: Twice a day. R.J. Nutter: With having said all of that, what surprised me is there is a large number of tower features on the buildings in and around that area. And, not just the shopping center but even the Kentucky Fried Chicken has a tower feature on it. So, I just want to point out a couple of these to you, and then I'm going to pass them along to you. These are the tower features directly across the street from the shopping center, which by the way is up for a Design Award with this Commission, as a matter of fact. There is another one over here (pointing to photos). And even adjacent to us the Kentucky Fried Chicken has a tower, again but is parapet wall. The colors, by the way that you all will probably not appreciate quite as much as Kentucky Fried Chicken does, even some of the office buildings have a tower in brick. And then some of the colors, we wanted to make sure because you asked us to modify our colors. We're willing to do that. The Blockbuster next to us are these colors. The Sonic next to us has these colors with these two red domes sticking up. I'm not sure what that is all about. Just down the street you would think that a bank might be a little more conservative, the bank is hardly described with this degree of blue I would dare say that rival reds as Ed's outfit over there. So, it is clearly, and I mean that as a compliment Ed. I just want you to know that we take the appearance of this city, the appearance of this area very seriously, and have for some time. So, and I'll pass these out to you so you could take a look at these. But in that vein, we still want to try to see if we can work with you all. So, I'm going to pass out in just a second another photograph for you. This is one of their facilities that is located in the City of Hampton. I'm going to pass this out to you because this is what we were proposing as a compromise with one modification. First of all, the building is all brick. Their buildings are predominately brick. This building would be all brick. It would be shaded in colors to match this shopping center across the street. We would go with the modified roof feature like this instead of the one you saw earlier because it matches the roof features and the towers in the other building. We would, of course eliminate the bell. The bell is gone. We would close in this feature so there would be no opening in the tower at all, so it would look the ones across the street. And, finally, this tower is like their others are about 11 feet above the parapet. So, when I showed this to Mr. Ripley the other day, we were proposing that this feature be reduced in size to 7 feet in height. Staff is recommending elimination of it altogether or to half its size, which would make it 5'/� feet, and quite frankly, I'm not sure it's worth arguing over 1'h feet of a tower. So, we would be happy to go with a tower that is 5% feet above the parapet, just like we've indicated here, which would be consistent with Staffs recommendation. Mr. Item #2 Autobell Car Wash, Inc. Page 3 Ripley it is even a little bit more restrictive than what I showed you the other day. But I'm going to submit these to you. But, I think otherwise you got a company that really has stepped up to the plate and tried to the right things. They have looked at the area intently and have come away with a very good compromise I believe that is consistent with what they are trying to achieve, and I think what you're trying to achieve. A couple of other things that I would like to suggest to you that is further indication of their willingness to cooperate with us is that number one, they have agreed to material restrictions on this, which are unlike the other buildings that you're seeing. You don't see the weird colors like you see on some of the other buildings. They agreed to neutral tone colors here. They will have an accent stripe in one color over another that accents the building. It would probably be either blue with their logo being in yellow, like the one you see here. They are further agreeing so you have material restrictions, color restrictions, and the restrictions on the feature of the building, which none of the buildings around them have whatsoever. David Redmond: Mr. Nutter, I'm sorry to interrupt you but I missed something I was trying to follow you but I didn't understand you. R.J. Nutter: That's okay. David Redmond: Go back to the color blue and the color yellow again. R.J. Nutter: Right. The color yellow, there will be a logo on their yellow sign and Autobell will be on there. The logo that you see here, you're going to have this color, which is going to be on there, which is yellow. You're not going to have a yellow strip on the building. We don't know if we're going to have a red stripe here or a blue stripe here but we will have one of the two colors. They typically have those and they want identification along that brick feature. For instance, like you see here, it's actually a red and blue color. Let me pass this out to you. I realize that I haven't done that. And while you are passing these out, I also want to emphasize to you the signage restrictions that this company has agreed too that would not apply to the other buildings all around them. This is a monument style sign. The other signs around them are on poles. This is a monument style sign in brick. In addition to that, they are agreeing with one modification. They agree not to use a LED sign. With the modification I would propose to you, and by the way that is interesting because you're about to adopt an ordinance that will allow LED signs by right in B-2 areas. They are willing, and by the way, the Sonic right next door to them has an LED sign. Your staff has asked them to eliminate, they not have an LED sign at this location, even though you're getting to recommend some restrictions that would allow LED signs. They are okay with that provided that it does not include back light monument signs like they have in this application. The lighting will be from behind it. It's not an LED sign. It is what you're typically used to seeing. They are fine with those restrictions. You've got a company that has literally bent over backwards to work with you in this area, be cooperative, and provide a very attractive location where the use where everyone agrees is appropriate for this location. So, thank you for letting me go over in length but I had a lot to cover in little time. If you have any questions I'm happy to respond. Joseph Strange: Are there any questions for R.J.? Item #2 Autobell Car Wash, Inc. Page 4 David Redmond: So, what is the height of this tower that you just passed out that you're proposing? R.J. Nutter: The one that you see there is 11 feet above the parapet wall. The one that we recommended to your Staff recommended going to half that size, but we will reduce it down to 5 '/z feet above the parapet wall. David Redmond: This is 11? R.J. Nutter: That is 11. Kathy Katsias: This would be 5? R.J. Nutter: 5%Z feet. Yes ma'am, which is exactly what your Staff recommended. It's pretty close Mr. Redmond to the Kentucky Fried Chicken. David Redmond: That is my concern, the scale of it. I frankly don't find it terribly valid to compare a 2,000 square foot building to a quarter million square foot shopping center in terms of whether or not it has a tower feature. It is the scale of the tower feature itself, with respect to the building, and with respect to the other properties that face Independence Boulevard at that point. I don't care, you know if a neighboring property has this and this but if you have on that sticks significantly up above it, then it is going to present my view as scale, so my concern is whether or not that tower feature is going to look out of scale to the other properties along there. I disagree very frankly with you. It seems not to be terribly divergent of the real estate that is around it. I think it looks pretty good. R.J. Nutter: It would be a lot better looking I think that is why we lowered the height of this tower because the 1 I foot would be consistent with the tower heights across the street. The 5%2 feet is really more consistent with the KFC feature on their building. David Redmond: Okay. That is what I'm much more comfortable with. R.J. Nutter: I understand. That is why your staff recommended that. David Redmond: Do they have to keep that highlighter yellow? R.J. Nutter: The yellow on that bell. They don't have the bell first of all. David Redmond: Can't rebuke that at all? R.J. Nutter: It is not that bad by the way. It is bright yellow and it is just on their sign. Their sign limitations will be the same one that is on all signs. David Redmond: I frequent the site they have at Hilltop. I don't frequent, and if you look at my car you realize it. Do they have the tower feature and the bell that location? Item #2 Autobell Car Wash, Inc. --_---- R.J. Nutter: They do not. That is one they purchased, and they have not retrofitted. It is about a million dollars to build a car wash believe it or not. So, rather than do all of that, they have left that alone. In fact, this would have been one of the few here that does not have the bell at all, and they have agreed to that modification to work with you. Joseph Strange: Are there any other questions? Ron? Ronald Ripley: We had discussion in the informal, which I just mentioned for the record. What got this going was we're just making sure that we have an elevation that looks good, fits in with the surrounding area, and I think there is 3, 4 or 5 things here, that if I understand, and I'll go over with them. R.J. Nutter: Yes sir, please do. Ronald Ripley: Remove the bell, and lower the tower to 5'/z feet. Is this the top of the tower? R.J. Nutter: Yes sir. The height of tower to the top of that roof would be no greater than 5%2 feet above the parapet wall. Ronald Ripley: Above the parapet wall. R.J. Nutter: Yes sir. Ronald Ripley: And, the use this modified roof, and I assume it will be a color that blends in with the building. R.J. Nutter: It will be something, and I'm not sure what the color would be yet. I'm not sure of the color. We haven't got that far into it yet. What we're going to do is submit something to Jack between now and Council. Ronald Ripley: But it will be standing seam? R.J. Nutter: Standing seam metal. Ronald Ripley: Jack will see it and approve it? R.J. Nutter: Yes sir. Ronald Ripley: And then the elevation that you will use will be the photograph you passed around? R.J. Nutter: Please do if you don't mind. That would be great. Ronald Ripley: You will use that as the elevation from the standard to work from, and then I think we'll know exactly what the intent is. Item #2 Autobell Car Wash, Inc. Page 6 R.J. Nutter: Mr. Ripley, in addition it is our intent to submit something consistent with that to Jack between now and Council so he will have something final for you by that time. Ronald Ripley: Good. Good. That satisfies my concern. But I was concerned. Dave and I had some discussion about it and very concerned about it. And I think the use is a very good use. I like to see this operator build in the City of Virginia Beach, and hopefully have some other locations. And, I think if we work on the standards that will work here, we will probably be in pretty good shape. But that is my opinion. R.J. Nutter: Yes sir. Thank you very much. David Redmond: I'm not going to oppose it either but I want to make sure that you understand that's not the building. You realize that? The building that renovates that and this color scheme is not there. It is not painted like this on the top of the roof. It may very well be at that location but it has been renovated since. It is an A&W concept now. Anyway, you may want to make sure that is any part of the submission. R.J. Nutter: I'll check. Mr. Redmond, because when I took these photographs this Sunday. David Redmond: I don't want to argue about it but it is A&W and a KFC combo now. R.J. Nutter: Okay. That is the picture. I apologize. I took this Sunday. I didn't go all the way around the building, so I don't know. But I was actually trying to focus on the feature that we talked about. So, but I will be happy to look for it. David Redmond: Before we finish this is the 5'/z? I'm sorry. R.J. Nutter: That tower is 1 I feet. David Redmond: Above the parapet wall. Yes. I'm much more comfortable with this. Joseph Strange: So, it will be about %2 of that? R.J. Nutter: Yes sir. Joseph Strange: Don? Donald Horsley: So, we're using this and not that? R.J. Nutter: This and not that, and with the modifications that I brought it red. Donald Horsley: How about the sign? R.J. Nutter: The sign? The sign is in your packets. It is a monument style sign. Let me see the page. I apologize. Item #2 Autobell Car Wash, Inc. Page 7 Donald Horsley: It is not this one with the bell on it? R.J. Nutter: No sir. It is this one on page 10 of your packet. Donald Horsley: Okay. I didn't know whether or not you had taken the bell out of here and was going to put it here. R.J. Nutter: No. No. I'm not aware of whether we're going to have a bell complex around here. But nonetheless, they don't have the bell on the side. Joseph Strange: Okay, one more question. Chris? Christopher Felton: And the bell is out of the tower? R.J. Nutter: Yes sir. Christopher Felton: So, no bell, just a picture of a bell? R.J. Nutter: Actually, the picture of the bell. What is going to happen is that the bell feature goes away on the tower. Joseph Strange: Are there any other questions? R.J. Nutter: Lord, help the liberty bell here. Joseph Strange: Thank you R.J. R.J. Nutter: My pleasure sir. Joseph Strange: We're going to open this up for discussion amongst the Commissioners. Is there any discussion? Do I hear a motion? Donald Horsley: Mr. Redmond's comment. David Redmond: I move that we approve. Henry Livas: Second. Joseph Strange: Second. Ron? Ronald Ripley: Can we make sure that these items are in the motion? David Redmond: Yes. Do you have a copy of them? Ronald Ripley: Yes. Let me take a shot at it? Item #2 Autobell Car Wash, Inc. Page 8 David Redmond: Sure. Go for it. Ronald Ripley: That we're going to remove the bell from the project, and they will lower the tower to 5% feet. The top of the tower will be approximately 5'/2 feet above the parapet wall that will be used to modify the roof that he showed in the photograph, which is a standing seam metal roof. The colors to be coordinated with the City's Planning Director, and that the tower will also be closed in, and that the elevation that is referred to in the conditions will be substituted with this elevation including the modification to the tower that we so discussed. Joseph Strange: A motion made by Dave Redmond as modified by Ron Ripley. Bill Macali: First, I think we need to identify what Mr. Ripley said is this drawing. Let's just go ahead and enter this withy Mr. Weeden, and the motion that Mr. Redmond made is amended by Mr. Ripley so Mr. Redmond just has to accept the amendment. David Redmond: I accept the amendment. Joseph Strange: Do I have a second to the amended motion. Henry Livas: I'll second it. Joseph Strange: Seconded by Henry Livas. Stephen White: Can we get a clarification on one item Mr. Chairman? Staff needs a clarification on the brick. The exterior of the building will be brick and the tower will be brick as well. Is that the case? R.J. Nutter: The exterior of the building is brick. The tower has the brick features that you see in these photographs Stephen. Notice that part of the tower will have an Eifs interior portion, but there are columns on the tower that are brick. It is just like in this photograph. And then we will close in those areas where the openings are. Stephen White: Thank you. R.J. Nutter: Yes sir. Thank you all very much by the way. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE Item #2 Autobell Car Wash, Inc. Page 9 REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved the application of Autobell Car Wash, Inc. with the conditions as modified. Jap D-7 Karinphillip, Inc RM �;:ate mm I M i I M 10011 �� Fu R 30.1 CUP for Tattoo Parlor Conditional Zoning Change from 11 to B2 _- tRn 411 A, ro r �i CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: a) KARINPHILLIP, INC. / PARR PROPERTIES, LLC, Change of Zoning District Classification, 1-1 Light Industrial District to Conditional B-2 Community Business District, 114 South Witchduck Road. Comprehensive Plan: Strategic Growth Area 4 - Pembroke. Purpose: operation of a tattoo parlor. KEMPSVILLE DISTRICT. b) KARINPHILLIP, INC. / PARR PROPERTIES, LLC, Conditional Use Permit, tattoo parlor, 114 South Witchduck Road. KEMPSVILLE DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The applicant requests a Conditional Change of Zoning of the property, which is zoned 1-1 Industrial District, to B-2 Community Business District. The applicant also requests a Conditional Use Permit to establish a tattoo and body piercing studio in a lease space of 2,000 square feet on the proposed site. ■ Considerations: The studio will be located on the entire first floor of the existing building. The operation will consist of three shop employees, three piercers, and six tattoo artists. The hours of operation will be 10:00 a.m. to 10:00 p.m., seven days a week. A dentist and a dance studio are located on the second floor of the building. The change of zoning for this site from Industrial to Business is appropriate and brings the site into greater conformance with the recommendations of the Comprehensive Plan. The site's existing zoning was, in the past, appropriate to how the area around this site had been traditionally used; however, adopted plans now call for a different type of use. The requested Business District zoning, as well as the use of the site for a tattoo parlor, is a small step toward the long- term transition of the Central Village District of Strategic Growth Area 4 from its current character to the desired end state. There was no opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 8-3, to recommend denial of the requests to the City Council. Karinphillip, Inc. Page 2of3 ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends denial. Submitting Department/Agency: Planning Department City Manage . ,L 20 8 21 January 13, 2010 Public Hearing APPLICANT: KARINPHILLIP, INC PROPERTY OWNER: PROPERTIES, I.I.C. STAFF PLANNER: Karen Prochilo REQUEST: Conditional Change of Zoning (1-1 Light Industrial District to B-2 Business District) Conditional Use Permit (tattoo parlor) ADDRESS / DESCRIPTION: 114 South Witchduck Road GPIN: ELECTION DISTRICT: 1467830480000 KEMPSVILLE SITE SIZE: 15,638 square feet LEASE SIZE: 2,000 square feet AICUZ: Less than 65 dB DNL SUMMARY OF REQUEST The applicant requests a Conditional Change of Zoning of the property, zoned 1-1 Industrial District, to B- 2 Community Business District. The applicant also requests a Conditional Use Permit to establish a tattoo and body piercing studio in a lease space of 2,000 square feet on the proposed site. The studio will be located on the entire first floor of the existing building. The operation will consist of three shop employees, three piercers, and six tattoo artists. The hours of operation will be 10:00 a.m. to 10:00 p.m., seven days a week. Other tenants are located on the second floor of the building: a dentist office and dance studio. KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Commercially developed site SURROUNDING LAND North: • Across 1-264 ramp, warehouse / 1-2 Industrial District USE AND ZONING: South: . 1-264 / B-2 Community Business District East: . Across 1-264 ramp, warehouse / 1-2 Industrial District West: . Retail / B-2 Community Business District NATURAL RESOURCE AND The majority of the site is impervious as it is developed with a structure CULTURAL FEATURES: and parking lot. There are no significant natural resources or cultural features associated with this site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Witchduck Road is a four -lane divided minor urban arterial. The Master Transportation Plan proposes a divided facility with bikeway within a 130 -foot right of way. Currently, this segment of roadway is functioning over -capacity at a LOS F. Two Capital Improvement Program projects are programmed in this area that directly impacts this parcel. Witchduck Road Phase II (CIP 2-025) will provide a six -lane divided roadway on a 131 -foot right-of- way from 1-264 to Virginia Beach Blvd. Aesthetic improvements will also be provided to enhance this roadway corridor. This project is at 30 percent design plans and is scheduled for construction in Fall 2018. The Pembroke Area Comprehensive Transportation Plan (CIP 2-238) is ongoing and involves a transportation study for the Central Business District surrounding Town Center. This study has developed short-term, mid- term, and long-term alternatives for transportation needs in the area. The City will use this study to develop feasible projects in the Central Business District that will provide a benefit to the traffic flow in the area. The subject property is currently within the boundaries of the study area. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Witchduck Road 51,107 ADT 14,800 ADT (Level of Existing Land Use — (Level of Service "C") 117 ADT Service "F") 22,800 ADT' (Level of Proposed Land Use 3 - Service "D") / Capacity 198 ADT 27,400 ADT' (Level of 3 Vehicles in Morning Peak Service "E") Hours 4 Vehicles in Afternoon Peak Hours Average Daily Trips 2 as defined by 1-1 zoning 3 as defined by B-2 zoning WATER and SEWER: The site is connected to City water and City sanitary sewer. KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 2 FIRE DEPARTMENT: No Fire Department comments at this time. HEALTH DEPARTMENT: The owner of the proposed tattoo studio must secure a permit from the Health Department prior to beginning operation. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the submitted proffers and conditions below. Comprehensive Plan: The Comprehensive Plan Map identifies this site as being within Strategic Growth Area 4 - Pembroke Area — Central Village District. This district of the Pembroke Strategic Growth Area is generally bound by 1-264, Witchduck Road, Virginia Beach Boulevard and Kellam Road. The Pembroke SGA4 Implementation Plan states that "this district is envisioned as an eclectic, mid to low-rise commercial and urban -residential area. This district will include live -work, loft, and rowhouse residential buildings as well as smaller scale mixed-use commercial buildings and a sports arena," (page 31). The proposed use is acceptable in this portion of SGA 4, as it will be many years before the economic and market conditions are right for redevelopment of this site consistent with the adopted plans for SGA 4. Evaluation: The change of zoning for this site from Industrial to Business is appropriate and brings the site into greater conformance with the recommendations of the Comprehensive Plan. The site's existing zoning was, in the past, appropriate to how the area around this site had been traditionally used; however, adopted plans now call for a different type of use. The requested Business District zoning, as well as the use of the site for a tattoo parlor, is a step toward the long-term transition of the Central Village District of SGA 4 from its current character to it's the desired end state. The proposed tattoo parlor will be located on the first floor of an existing two-story building. A dentist and a dance studio occupy the second floor. The tattoo studio is required to comply with all Health Department regulations before a business license can be obtained. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: The existing building will not be used for a flea market, motor vehicle rental, commercial recreational facility KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 3 or car wash facility. All uses permitted in B-2 Zoning Districts will be allowed, and conditional uses will require the usual City Council approval. PROFFER 2: Minor renovations to the exterior and interior of the building which do not materially alter the appearance of the building may be made. PROFFER 3: There will be no drive-thru on the property. PROFFER 4: Further conditions may be required by the Grantee to provide for administration of all applicable City Codes by all City agencies and departments to meet all City Code requirements. STAFF COMMENTS: The proffers listed above are acceptable as they ensure the use of the property will not be intrusive to the surrounding area or be inconsistent with the goals of the Comprehensive Plan, as well as ensuring the building is not inappropriately altered. The City Attorney's Office has reviewed the proffer agreement dated September 21 2009, and found it to be legally sufficient and in acceptable legal form. CONDITIONS 1. The conditional use permit for tattoo and body piercing establishment is approved for a period of one year with an administrative review and renewal (if appropriate) every year thereafter. Tattooing may include the application of permanent makeup. 2. A business license shall only be issued to the applicant if the Health Department approves the facility for consistency with the provisions of Chapter 23 of the City Code. 3. No sign more than four square feet of the entire glass area of the exterior wall(s) shall be permitted on the windows. There shall be no other signs, including LED or neon signs or neon accents, installed on any wall area of the exterior of the building, windows, and / or doors. Signage for the business shall be limited to the existing freestanding sign located on the site. 4. The actual tattooing or piercing operation on a customer shall not be visible from any public right-of- way adjacent to the establishment. 5. The hours of operation shall be 10:00 a.m. to 10:00 p.m., seven days a week. KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 4 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. 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. KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 5 AERIAL OF SITE LOCATION KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Pace 6 1� 6.- SITE SURVEY KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 7 EXTERIOR BUILDING PHOTOGRAPHS KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 8 1 11/22/05 07/11/01 Conditional Use Permit tattooparlor) Conditional Use Permit (tattoo parlor) Denied Withdrawn before PC 2 06/24/03 07/01/74 Street closure(portion of Denn Lane Street closure(portion of Denn Lane Granted Granted 3 02/12/02 Conditional Use Permit communications tower Granted 4 04/10/01 Modification of Conditions Granted 12/06/94 Conditional Use Permit (storage & processing of salvage, scrap or junk Granted 02/26/91 Conditional Use Permit rec clin center Granted 5 07/09/90 Conditional Use Permit car wash Granted 6 04/18/83 Conditional Use Permit bulk storage) Granted ZONING HISTORY KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 9 11 DISCLOSURE STATEMENT 11 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) Karinphillip, Inc.: Marco Hyder, President, Secretary. Sole Shareholder and Trustee 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Not Applicable ❑ 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) Parr Properties, LLC: Scott Parr, President, Secretary, Sole Shareholder and Trustee 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Not Applicable ❑ 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 City of Virginia Beach have an interest in the subject land? Yes LL No ✓❑ If yes, what is the name of the official or employee and the nature of their interest? Conditional Rezoning Application Page 11 of 12 Revised 1111612006 KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 10 11 DISCLOSURE STATEMENT 11 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) Riddle Associates Wachovia Bank Joseph W. Hood, Jr., Attorney at Law Coleman & Associates. CPA Alpha Tech Surveyors, Ltd. ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities, there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing. I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application Ay�� Applicant's ig ure Print Name Property Owner's Signature (if different than applicant) Print Name Conditional Rezoning Application Page 12 of 12 Revised 7/3+2007 KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 11 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Karenphillip, Inc.: Marco Hyder. President, Secretary, Sole Shareholder. and Trustee 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Not Applicable D Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members. trustees, partners, etc. below: (Attach list if necessary) Parr Properties, LLC: Scott Parr, President, Secretary, Sole Stockholder and Trustee 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Not Applicable Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 8 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes No xx If yes, what is the name of the official or employee and the nature of their interest? Conditional Use Permit Application Page 9 of 10 Revised 7132007 KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 12 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Riddle Associates; Wachovia Bank; Joseph W. Hood, Jr., Attorney at Law; Coleman & Associates, CPA; and Alpha Tech Surveyors, Ltd. ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va Code § 2.2-3101. z "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. 1 understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. Applicant's ina�ture Print Name Property Owner's Signature (if different than applicant) Print Name Conditional Use Permit Application Page 10 of 10 Revised 71312007 KARINPHILLIP, INC / PARR PROPERTIES, LLC. Agenda Item 20 & 21 Page 13 Item #20 & 21 Karinphillip, Inc. Change of Zoning District Classification Conditional Use Permit 114 S. Witchduck Road District 2 Kempsville January 13, 2010 REGULAR Al Henley: The next item to be heard is item 20 & 21, Karinphillip, Inc. An application of Karinphillip, Inc. for a Change of Zoning District Classification from I-1 Light Industrial to Conditional B-2 Community Business District on property located at 114 South Witchduck Road. An application of Karinphillip, Inc. for a Conditional Use Permit for a tattoo parlor on property located at 114 South Witchduck Road, Kempsville District. Joe Hood: I'm Joe Hood. I'm a private attorney and I represent the applicants. As Mr. Henley said that pretty much says it all. They are applying for a rezoning from I-1 to B-2, which I' believe the staff agrees fits better with the Comprehensive Plan than the current use. It looks better for the future. If there are any questions concerning the proximity to a school for the tattoo parlor, I believe Renaissance Academy is something over 1,000 feet away. And on the other side of Witchduck Road, anyone going there would virtually have to drive there. And they could easily drive to one of several other tattoo shops in the city. I hope that would not be a significant concern. To get a tattoo in Virginia Beach, you have to be over 18, have a photo ID, and sign a release to get the job done. The applicant is here, and I or he will be glad to field any questions that anyone has. Joseph Strange: Does anyone have any questions at this time? Henry Livas: I have a question. Is there anything particular significant about that location since it is, and you have already mentioned it, is close to the Renaissance Academy as opposed to further into Kempsville somewhere else? Joe Hood: Business wise, it's a pretty good location. It fits, well I think with all the surrounding, except for the Renaissance Academy, and that is a fairly significant distance away. And being across the street (Witchduck Road) like that no one is going walk there. They would have to fight Witchduck traffic and other concerns (interstate ramp). The applicant did a lot of searching for a satisfactory building and a satisfactory location to put it (tattoo studio). This was just about the only thing that he found that seem to meet the needs, and then would be compatible with the Comprehensive Plan. I hope that addresses your concern. Henry Livas: Well, I guess you are aware that you are six tenths of a mile from the one on Cleveland Street. There is a tattoo establishment there already. So, you're moving close to a competitor too. Item #20 & 21 Karinphillip, Inc. Page 2 Joe Hood: That is of a less concern. I think he (the other studio) is substantially closer to the Renaissance Academy. Henry Livas: About the same. Janice Anderson: Mr. Hood, does your applicant have other tattoos establishments in Virginia Beach? Joe Hood: No ma'am. Janice Anderson: No. This will be his first one? Joe Hood: Yes ma'am. David Redmond: I'm sorry. Joseph Strange: Go ahead. I'm sorry. David Redmond: So, does that mean this will be his first in Virginia Beach? Joe Hood: His first anywhere. David Redmond: This is the first time he is doing this kind of business? Joe Hood: He has done this kind of business as an employee of an established shop. David Redmond: Okay. Thank you. Joseph Strange: Would you sat this tattoo business, is this kind of a destination business? People, you know they drive there to get it done. Joe Hood: Yes sir. Joseph Strange: They don't ride by and see it and say, I want to get a tattoo. Joe Hood: We don't advertise it like this but this is an appointment only thing with this shop. They don't get walk-in traffic. Joseph Strange: I'm concerned at Henry's concerns. Henry Livas: Well, obviously from this morning, I think I gave my views that I'm against it because of the Renaissance Academy. I have nothing against your operation. You may be a very good tattoo shop. Also, I want to mention that I've always voted for tattoo establishments in the past. So, I'm not anti -tattoo. Some of my friends even have them probably. I do have a little concern about pouring millions of dollars into the Renaissance Academy, and I certainly Item #20 & 21 Karinphillip, Inc. Page 3 want that place, and I'm proud of my city for doing that, and I want it to succeed. I see this as a possibility of not enabling it to succeed, and also the city is concerned about this otherwise they wouldn't have put limitations in the regulations to begin with. So, it is a legitimate concern. I would say that we have a specialized condition here because of the new school, and because of the size of that school. And also, you mentioned that Strategic Growth Area 4. This proposal is really an interim proposal because you don't really meet the ultimate requirements of SGA 4. Joe Hood: Yes sir. I understand. Henry Livas: So, it's interim. So, for that and other reasons, I think it would be better if you could be located somewhere else. I also voted for the one on Newtown Road. There is one on Newtown Road. It hasn't been built yet but we approved it. So, in this particular case, I know 600 feet is a standard but in some cases we have to use our own judgment, and say in this case, we don't think it is a good go. Joe Hood: Well, I understand the 600 feet and your concern there. I think the actual distance is probably something in excess of 1,000 feet from Renaissance Academy. Because of the traffic pattern there, I think, and I don't know how to say that, but would be a factor that would communications from Renaissance Academy to this location even more difficult than the 1,000 feet would apply. Henry Livas: I would imagine that school buses go by there. So, it is just a concern and the City expressed it about putting in their regulations about 600 feet. It means they were concerned about having it near schools. They weren't even thinking about this brand new school, state of the art. That is my opinion. Joe Hood: Thank you sir. Joseph Strange: I guess I have a question. As to if you have to be 18 years old to get a tattoo, and most people in school are not 18. Joe Hood: Hopefully. Joseph Strange: Why would that be an important part of the ordinance? Can anybody answer that question? David Redmond: I can't but I will tell you as one that spends a fair amount of time at the Oceanfront, there are laws and there are laws. There are plenty of people who are not 18 who are getting tattoos. So, I don't know whether that is true or not. I'm not too wrapped up in that part just because anybody that knows teenagers knows they can find away to do just about anything. Joseph Strange: I have one question here. Do you know what the penalty is for putting a tattoo on somebody under 18? Joe Hood: I do not but I will ask the applicant. Item #20 & 21 Karinphillip, Inc. Page 4 Marco Hyder: My name is Marco Hyder. I don't know what the penalty is specifically for doing a tattoo on someone under the age 18 but in the State of Virginia, the State of Virginia itself allows for anyone, I believe 15 or above to get a tattoo as long as the parent is consenting. But we specifically would not be doing that. None of the other shops in Virginia Beach allow anyone under 18 to get a tattoo. So, you have to have a state or federal issued ID to prove that you're 18 or otherwise you just won't be able to get one. Joe Hood: And that is a picture ID. Marco Hyder: Right. Bill Macali: Mr. Chair, it is a Class 2 Misdemeanor for the first offence, which means there is a six month jail sentence and a significant fine. A second offence results in a Class one Misdemeanor, which is 12 months in jail and a $2,500 fine, either or both. So you don't get a lot of that in Virginia Beach because it is a jailable offence. Christopher Felton: You said they need to be 18, and if they are at Renaissance Academy, you've got 45 years old there on open campus and etc. You've got all kind of ages going there because it is an alternative school, and it is four alternative schools put into one. So, you got a large range of students that are there, that are either getting their GED or they are there for discipline problems or whatever sorts. At the same time before you even stated it, being a high school teacher there are plenty of parents that are signing that consent for their child to get that tattoo. Joe Hood: I think that Mr. Hyder can assure you that he is not going to do anyone under 18 with or without parental permission. Marco Hyder: I work for a tattoo shop out here in Virginia Beach. We don't allow anybody even if your parents are there, and says they are willing to sign for you that they accept that you can do it, we still turn them away. We're not interested in the business. Christophe Felton: I just want to go back to a question that was asked earlier, and I'm not sure if the answer was clear for me at least. In you research for a location, why is this the perfect location for you? Marco Hyder: Well, for me, it boils down to the city's regulations themselves as to where we can open up a business. Those are pretty restrictive. And, this is one of the few locations that does fit those things. It is a good location just because of the traffic that is going to come through there. Obviously, it is right beside I-264, at the corner of I-264 and Witchduck. It is not the most visible location in the world. It could be better. I wish there was a better location that I could find personally, but I just can't just go anywhere on Virginia Beach Boulevard and open a tattoo establishment. The City doesn't permit it. Bill Macali: Mr. Chair, I can explain a little bit more there. They are only permitted in B-2, which limits it first of all. The other limitation that is most significant is they can't be within 600 Item #20 & 21 Karinphillip, Inc. Page 5 feet of a residential or apartment district or use. That really is a limitation as to where these things can go. So, there are a limited number of locations for these establishments. Joseph Strange: Is there anyone else. Ronald Ripley: Yes. Mr. Chairman, I've been riding by this site and seeing the sign out there. I was kind of hoping it would go away personally. It is one of those uses that you don't want to see, well at least I don't want to see it, we have some in the city, and they are at different locations throughout the city. I am kind of undecided about it coming in here. I think listening to Henry. I think he has made a profound point. And, I think even if it is a temporary use, I think, this area will redevelop overtime, and this building is not the highest and best use of the property for what's going on in there. It is a peculiar location in the fact that it is sandwiched between Witchduck and this road that winds around to the back of it. I am going to go with Henry. I think he is right. Joseph Strange: Thank you. Are there any other comments? Janice Anderson: I just have a comment. No question though. Joseph Strange: We're finished. Thank you very much. Joe Hood: Thank you. Janice Anderson: I understand Henry's position because of the Renaissance Academy. My problem is they are very restrictive where you can put these because of the 600 feet. It is hard to find any B-2 that is not 600 feet from a residential or 600 feet from a school. And actually, I don't like it by the Renaissance Academy but it meets our criteria, and is over 1,000 feet. As the gentleman has said, they can't walk here just because of the roads. It is surrounded by I-1 business. I don't think there really is a better place to try to put this. This size is limited. It is a small facility really when you're talking about it. It is just a bottom floor office of this smaller office building. I don't have a problem with it really, and looking at all the conditions, it won't have an LED sign that they could flash or tell you what is on special for your tattoos this week. I would support and agree with staff's recommendation. Henry Livas: Let me comment on that. If they are that difficult to find a location then I would want to know why they haven't developed the one on Newtown Road that we approved about a year ago. I went by there last night and I see no construction of a tattoo parlor there. I doubt if they are that difficult to find throughout the city. I find it difficult to put one next to a brand new school. That is what's difficult. Stephen White: We're going to have to do some research. We don't remember a tattoo parlor being approved on Newtown Road. Henry Livas: Kathy, you remember it. STA" v-9= Uso T4FIS A'N� 'twi> n T tktr-- rAe4j- i Ty 'h &-rr icNm Item #20 & 21 Karinphillip, Inc. Page 6 Kathy Katsias: Newtown and Providence. Joseph Strange: Yes. David Redmond: Where? Kathy Katsias: Providence or Princess Anne. Henry Livas: Newtown Road. Kathy Katsias: It was a little strip center. Joseph Strange: Newtown and Princess Anne. Henry Livas: That's right. It is Newtown and Princess Anne. It's at that corner because Kathy commented about the parking there. And, I made my comment about it. Stephen White: Okay. Henry Livas: I don't think the sites are difficult to find. We only got one multi-million dollar school though with alternative education. I would make a motion that we deny the request. Ronald Ripley: Second. Joseph Strange: A motion has been made to deny the request and seconded by Ron Ripley. Is there any other discussion? AYE 8 NAY 3 ABS 0 ABSENT 0 ANDERSON N A Y BERNAS AYE FELTON AYE HENLEY NAY HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO NAY STRANGE AYE Ed Weeden: By a vote of 8-3, the Board has denied the application of Karinphillips, Inc. Kathy Katsias: So, the application has been denied? t Item #20 & 21 Karinphillip, Inc. Page 7 Joseph Strange: The application has been denied. Bill Macali: Recommended for denial. In Reply Refer To Our File No. DF -7585 TO: Mark D. Stiles FROM: B. Kay Wilso(o CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: February 11, 2010 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Karinphillip, Inc. The above -referenced conditional zoning application is scheduled to be heard by the City Council on February 23, 2010. 1 have reviewed the subject proffer agreement, dated September 21, 2009 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen JosErH W. Hoop, JR., P.C. ATTORNEYS AND COUNSELLORS AT LAW 3330 PACIrIC AVENUE SUITE 700 VIRGINIA BEACH, VIRGINIA 73451-7983 TELEPHONE (757) 340.5800 PACSIMLE (757) 340-3787 COVENANTS, RESTRICTIONS AND CONDITIONS :ARINPHILLIP, INC., a Virginia Corporation ARR PROPERTIES, LLC, a Virginia limited liability company CITY OF VIRGINIA BEACH (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS THIS AGREEMENT, made this 21" day of September, 2009, by and between Karinphillip, Inc., a Virginia Corporation, party of the first part, Grantor; Parr Properties, LLC, a Virginia limited Iliability company, party of the second part, Grantor; and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, party of the third part, Grantee. WITNESSETH: WHEREAS, the party of the second part is the owner of that certain parcel of property located in the City of Virginia Beach, Virginia, containing approximately .359 acres and is variously known as 114 South Witchduck Road, Virginia Beach, Virginia, described in Exhibit A attached hereto and incorporated herein by reference, and is hereinafter referred to as "the Property"; and WHEREAS, the party of the first part is a contract lessor of the Property, has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach by petition addressed to the Grantee in order to change the zoning classification of the Property from 11, Light Industrial District, to conditional B2, Community Business District; and WHEREAS, it is the policy of the Grantee to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantors have acknowledged that the competing and sometimes .ncompatible uses conflict and that in order to permit deferring uses on and in the area of the JPIN:1467-83-0438-0000 Page 1 of 5 ,JOSEPH W. HOOD, JR., P.C. ATTORNEYS AND COUNSELLORS AT LAV 3330 PACIFIC AVENUE SUITE 200 VIRGINIA REACH, VIRGINIA 23451-2983 TELEPHONE (757) 340.5800 FACSIMILE (757) 3403787 and at the same time to recognize the effect of change and the need for various types of certain reasonable conditions governing the use of the Property for the protection of the that are not generally applicable to land similarly zoned are needed to cope with the ion to which the Grantor's rezoning application gives rise; and These conditions are in conformance with the comprehensive plan, and the conditions are of being readily and effectively enforced by the City of Virginia Beach. No changes to the appearance of the Property are contemplated with contract Lessor's use of the Property. WHEREAS, the Grantors have voluntarily proffered, in advance of and prior to the public before the Grantee as a part of the proposed amendment to the Zoning Map with respect to Property, the following reasonable conditions related to the physical operation and use of the to be adopted as a part of said amendment to the Zoning Map relative and applicable to the which a reasonable relation to the rezoning and the need for which is generated by the NOW THEREFORE, the Grantors, their successors, personal representatives, assigns, and other successors in title or interest, voluntarily and without any requirement by or ion from the Grantee or its governing body and without any element of compulsion or quid pro for zoning, rezoning, site plan, building permit, subdivision approval, hereby make the following of conditions and restrictions which shall restrict and govern, operation and use of the and hereby covenant and agree that this declaration shall constitute covenants running with Property, which shall be binding upon the Property and upon all parties and persons claiming or through the Grantors, their successors, personal representatives, assigns, grantees, and other PIN: 1467-83-0438-0000 Page 2 of 5 I jmm W. HOOD, JR., P.C. ATTORNEYS AND COUNSELLORS AT LAW 3330 PACIFIC AVENUE SUITE no VIRGINIA BEACH, VIRGINIA 234514583 TELEPHONE (757) 340-SBUM FACSIMILE (757) 340-3787 successors in interest and title. 1. The existing building will not be used fora flea market- motor vehicle rental. conlnlcrub recreation facility, or car wash facility. All uses permitted in B-2 Zoning Districts \yill he allowec and conditional uses \-viii require the usual City Council appro'al. 2. Minor renovations to the extCriorandinterior ofthebLilldlil`.!\1'Illclldo]lot matcri;1ll\ the appearance of the building may be made. �. "]here "'ill be no drive -111111 on the property. 4. I'lll"thel' Conditions may be required by the Grantee to pro'ide for administration oral applicable City Codes by all City agencies and departments to meet all City Code 1'egllll'ellleilts. All relerences hereinabove to the I1 zoning district and 132 zoning C{Isll'ICl 1'elel' to OIL comprehensive Zoning ordinance and subdivision ordinance ol"the City ofVwpinia Hatch. Vh1ini; in love as of the date of approval of this Agreement by City Council which are h\' this rcl,urcn,•c incorporated herein. The above colldltlonn having been prod -tired by the Grantors and allo\'ecI accel-)tc(l h� t!1e Grantee as part of the amendment to the Zoning Ordinancc, shall continue in Dull have and � ;;j, until a subsequent amendment changes the ronin` of the Property and spccilicall' repeal; such conditions. Such conditions shall continue despite a subsequent anlClldillent to the /;)ninL, Onlinance ewn if the subsequalt anwndil cm is part ofa Comprehensive lillplelilCnw1lon Ufa I1,\\ GPIN: 1467-83-0438-0000 Page 3 of JOSEPH W. HOOD, JR., P.C. ATTORNEYS AND COUNSELLORS AT LAV 3330 PACIFIC AVENUE SUITE 200 VIRGINIA REACH, VIRGINIA 73451-7983 TELEPHONE (757) 340-5800 FACSIMLE (757) 340-3797 substantially revised Zoning Ordinance until specifically repealed. The conditions, however may repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at time of the recordation of such instrument, provided that said instrument is consented to by the in writing as evidenced by a certified copy of an ordinance or resolution adopted by the g body of the Grantee, after a public hearing before the Grantor which was advertised to the provisions of Section 15.2-2205 of the Code of Virginia, 1950, as amended. Said e or resolution shall be recorded along with said instrument as conclusive evidence of such and if not so recorded said instrument shall not be valid. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Virginia shall be vested with all necessary authority on behalf of the governing body of the of Virginia Beach, Virginia to administer and enforce the foregoing conditions and restrictions the authority to (A) order, in writing, that any noncompliance with such conditions be and (B) to bring legal action or suit to ensure compliance with such conditions, including or prohibitory injunctions, abatement, damages, or other appropriate action, suit, or (2) the failure to meet all conditions and restrictions shall constitute cause to deny the of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved any decision of the Zoning Administrator, made pursuant to these provisions, the Grantee shall the governing body for the review thereof prior to instituting proceedings in court; and (4) Zoning Map shall show by an appropriate symbol on the map the existence of conditions attached the zoning of the Property, and the ordinances and the conditions may be made readily available PIN: 1467-83-0438-0000 Page 4 of 5 ,JOSEPH W. HOOD, )R., P.C. ATTORNEYS AND COUNSELLORS AT LAW 3330 PACIFIC AVENUE SUITE 200 VIRGINIA REACH, VIRGINIA 23457-29!13 TELEPHONE (737) 340.9600 FACSIMILE CM 3403787 assessable for public inspection in the office of the Zoning Administrator and the Planning and then shall be recorded in the Clerk's Office of the Circuit Court of the City of irginia Beach, Virginia, and indexed in the names of the Grantors and the Grantee. PARR PROPERTIES, LLC By:. Scott Parr, Manager (COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: KARENPHILLIP, INC. Marco Hyder, P sident Acknowledged before me this day of 1'L' / ' , 2009, by Scott Parr. j NotPublic Commission Expires: 136 / � % `O�"'srwt•,� o ary Registration No.:013-'-51 �, TI 201 MMONWEALTH OF VIRGINIA 'Y OF VIRGINIA BEACH, to wit: Acknowledged before me this., day of t ' , 2009, by Marco Hyder. r' Notary Public Commission Expires: &/-5011 / pry Registration No.: 10133/ 00\Karinphi11ip,1nc\Revised Profferlwpdi�q� * 191331 M MYC04MDSSION PIN: 1467-83-0438-0000 Page 5 of 5 Legal Description of 114 S. Witchduck Road SCHEDULE A PARCEL ONE: All that certain tract, piece or parcel of land, with the buildings and improvements thereon situate, lying and being in the Kempsville Borough of the City of Virginia Beach, Virginia, and being designated as "0.359 Ac.", as shown on that certain plat entitled, "Plat of Property Bounded by Mac Street, South Witchduck Road & Virginia Beach -Norfolk Expressway, Kempsville Borough, Virginia Beach, Virginia", Scale 1'==50", dated June 12, 1972, prepared by Baldwin and Gregg, Engineers -Surveyors -Planners, a copy of which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 1287, at page 309, and which property is more particularly described with reference to said plat as follows: BEGINNING at Virginia Department of Highways monument CV .D.H. MON"} at the northeastern intersection of the Limited Access Line of the Virginia Beach -Norfolk Expressway and South Witchduck Road thence along the eastern line of South Witchduck Road N. 160 22' 50" E. 191.01' to a V.D.H. MON.; thence S. 73° 42' 37" E., 38.14' to a V.D.H. MON in the western line of Mac Street as shown on the said plat; thence along the western, line of the right of way of Mac Street , S. 01' 53' 03" E., 172.07' to a point; thence continuing along the western line of the right of way of Mac Street, S. 041 02' 42" E., 77.48' to a V.D.H. MON. in the northern Limited Access Line of the said Expressway; thence running along the said northern Limited Access Line of said Expressway, N. 52° 57' 00' W., 127.30' to the point of beginning. The said parcel contains 0.359 acres. PARCEL TWO: AN EASEMENT ten (10) feet in width, along, over, across and under those certain strips of land, the center line of which shall be in the approximate location of so much of Line "A" as shall be located on the Pereeoff Property, as shown and described on Exhibit "A" which is entitled "Proposed Sanitary Sewerage Facilities for Arthur Peregoff, Agent, et als, "dated January, 1973, which is attached to the Sewer Line Easement and Agreement between Arthur Peregoff, et als, Lawrence A. Sancilio, Trustee, and the City of Virginia Beach, Virginia, dated March 20, 1973, and duly recorded in the Clerk's Office of the aforesaid Court in Deed Book 1346, at page 449. KNOWN AS: 114 S. Witchduck Rd. Ail nrr c M l w n biro+ 7? Al,ll..r Ti IT�...,... o Conditional Zoning Change from AC -1 AC -2 R-? 5 to R-15 � 1 4• t ,J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Change of Zoning District Classification, R-15 Residential District, AGA and AG -2 Agricultural Districts to Conditional R-15 Residential District, 3807 and 3809 Indian River Road (GPINs 1474807178; 1474904146; 1474907314). CENTERVILLE DISTRICT. MEETING DATE: February 23, 2010 ■ Background: The applicants request a Conditional Change of Zoning for the subject site, which consists of four parcels, zoned R-15 Residential and AG -1 and AG -2 Agricultural Districts, to Conditional R-15 Residential District. The purpose of the request is to develop the site with 35 single-family dwellings. ■ Considerations: The total acreage of the site is 30.67 acres, consisting of 8.47 acres of AG -1 Agricultural zoning and 0.50 acre of AG -2 Agricultural zoning on three parcels, and 21.70 acres of R-15 Residential zoning on one parcel. The existing zoning allows a total of 52 dwelling units: three dwellings on the area zoned Agricultural and 49 dwellings on the area zoned Residential. The applicants, however, are proposing 35 single-family residential lots, which is equivalent to a density of 1.63 units to the acre. Such density is consistent with the surrounding residential subdivisions, and is well below the 2.25 units to the acre possible in the R-15 Residential District. The submitted conceptual site layout plan depicts the 35 lots, varying in size of 15,000 square feet to 1.3 acres, with an average lot size of 22,540 square feet. The plan shows one access point aligned with Morgan's Point Drive across Indian River Road, to the east, and a second connection via Peachtree Lane to the River Oaks subdivision to the south. Additionally, the plan depicts one acre of open space around a proposed stormwater management facility, which will be dedicated to the homeowner's association. At the rear of the site, approximately three acres of wetlands will be dedicated to the City of Virginia Beach and will become part of the North Landing River Greenway. As proffered, the proposed dwellings will be consistent with those in the surrounding subdivisions in regard to size, design, and building materials. Morris H. Fine & Robert F. Hagans, Special Commissioners Page 2 of 3 The site is located within the 65 to 70 dB Ldn AICUZ, Sub -Area 3, where residential uses are considered not compatible. If this entire site was zoned Agricultural and the request was for a rezoning to Residential, a recommendation to not approve the rezoning would be made. In this case, however, the vast majority of the site is already zoned Residential and 49 dwellings can be constructed by -right. The development proposed by the applicants consists of only 35 units; thus, the result of this change of zoning request is fewer dwelling units than what can be built by -right. The applicant met with the Joint City -Navy MOU Committee on November 19, 2009. The Committee staff reviewed the application against the requirements of Section 1804(a) Discretionary Development Applications and Section 1804(c)(3) Special Regulations in the 65-70 dB DNL Noise Zone. The City -Navy Memorandum of Understanding (MOU) group reviewed the application and determined that it meets the requirements of Article 18 of the City Zoning Ordinance, AICUZ Overlay Ordinance, as the resulting number of units to be constructed on the parcel is lower than the number that could be constructed with the existing zoning. Planning Staff also suggested to the applicant that an avigation easement should be proffered. The easement will be consistent with the provision of Section 14 of Appendix I (Airport Noise Attenuation and Safety Ordinance) of the City Code, which notes that such an easement "shall acknowledge the right of the United States Navy to conduct military operations in the airspace above the property and shall include a covenant not to bring legal action for damages or other relief as a result of noise levels from overflights." Proffer 4 of the applicant's Conditional Zoning Agreement provides for such an avigation easement. There was no opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council as proffered. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: S Morris H. Fine & Robert F. Hagans Cwwo(joli ZCM;S chil:Jge 1,011.11,-i ry(ri K -; .N W.'(- I 15 January 13, 2010 Public Hearing APPLICANTS (FOR PROPERTY OWNERS): MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS STAFF PLANNER: Faith Christie REQUEST: Conditional Change of Zoning (R-15 Residential and AGA and AG -2 Agricultural to Conditional R-15 Residential) ADDRESS / DESCRIPTION: 3807 & 3809 Indian River Road GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14748071780000; CENTERVILLE 30.67 ACRES 65-70 and 70-75 d6 DNL; 14749041460000; Sub -Area 3 14749073140000 APPLICATION HISTORY: This request was deferred on November 12, 2009 to provide time for the City -Navy MOU Committee to review the proposal due to its location within Sub -Area 3 of the 65-70 AICUZ. The request was deferred again on December 9, 2009 to provide the applicant an opportunity to revise the proffers in response to the findings of the City -Navy MOU Committee. SUMMARY OF REQUEST The applicants request a Conditional Change of Zoning for the subject site, which consists of four parcels, zoned R-15 Residential and AGA and AG -2 Agricultural Districts, to Conditional R-15 Residential District. The purpose of the request is to develop the site with 35 single-family dwellings. The total acreage consists of 8.47 acres of AGA Agricultural zoning and 0.50 acre of AG -2 Agricultural zoning on three parcels, and 21.70 acres of R-15 Residential zoning on one parcel. With the existing zoning, a total of 52 dwellings are possible: three dwellings on the Agricultural zoning and 49 dwellings on the Residential zoning. The applicants, however, are proposing the development of 35 single-family residential lots, which is equivalent to a density of 1.63 units to the acre. Such density is consistent with the surrounding MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 1 residential subdivisions, and is well below the 2.25 units to the acre possible in the R-15 Residential District. The purpose of the proposed rezoning is to consolidate all of the parcels under one Conditional Zoning, rather than developing the parcels as they currently exist. This will result in a higher quality neighborhood design and quality dwelling design, consistent with the adjacent subdivisions. The submitted conceptual site layout plan depicts the 35 lots, varying in size of 15,000 square feet to 1.3 acres, with an average lot size of 22,540 square feet. The plan shows one access point aligned with Morgan's Point Drive across Indian River Road, to the east, and a second connection via Peachtree Lane to the River Oaks subdivision to the south. Additionally, the plan depicts one acre of open space around a proposed stormwater management facility, which will be dedicated to the homeowner's association. At the rear of the site, approximately three acres of wetlands will be dedicated to the City of Virginia Beach and will become part of the North Landing River Greenway. As proffered, the proposed dwellings will be consistent with those in the surrounding subdivisions in regard to size, design, and building materials. LAND USE AND ZONING INFORMATION EXISTING LAND USE: The site is a mix of zoning districts that include AG -1 and AG -2 Agricultural and R-15 Residential. A single-family dwelling and accessory buildings occupy the sites. SURROUNDING LAND North: . Indian River Farms (single-family residential) / R-15 Residential USE AND ZONING: (OP Open Space Promotion) South: . River Oaks (single-family residential) / Conditional R-15 Residential East: . Indian River Road Across Indian River Road is Morgan's Walk (single-family residential) / R-15 Residential West: . Gum Swamp City of Chesapeake NATURAL RESOURCE AND Along the western portion of the site is an extensive wetland area (Gum CULTURAL FEATURES: Swamp) that is part of the North Landing River Greenway. The applicants will be dedicating this to the City of Virginia Beach. The upper limits of the floodplain (elevation 5) and the Southern Watersheds Management Area buffer are also delineated on the submitted plan. Clearing or alteration of this buffer area is prohibited under the Southern Watershed Management Ordinance. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): This segment of Indian River Road is an undivided, two-lane suburban minor arterial. It is shown on the Master Transportation Plan Map as a divided controlled -access facility with a bikeway within a 150 -foot wide right-of-way with a MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 2 scenic buffer. There is currently no Capital Improvement Program project (CIP) project to widen this segment of Indian River Road. However, the Virginia Department of Transportation (VDOT) Final Environmental Impact Statement for the proposed Southeastern Parkway and Greenbelt, CIP project #2.089, depicts an interchange with Indian River Road approximately 1,000 feet northwest of this site. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume —10 Indian River Road 5,100 ADT 15,000 ADT Existing Land Use ADT Proposed Land Use 3— 350 ADT 71 PM Peak Average Daily Trips I as defined by an existing single-family dwelling and agricultural uses Sas defined by 35 single-family dwellings WATER: City water is available to the site. There are eight -inch City water mains located in Indian River Road and Peachtree Lane. The site must connect to City water. SEWER: City sanitary sewer is available to the site. The applicant / developer must provide an analysis of Pump Station # 585 and the sanitary sewer collection system to ensure future flows can be accommodated. There is an eight -inch City sanitary sewer gravity main in Indian River Road. The site must connect to City sewer. $GHOULS: 2 School Current Capacity Generation' Change Enrollment New Castle Elementary 776 803 10 9 Landstown Middle 1,536 1,621 6 5 Landstown High 2,404 2,064 8 8 "generation' represents the number of students that the development will add to the school 2 "change" represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be positive additional students or negative fewer students). Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of the request to rezone the sites from R-15 Residential and AGA and AG -2 Agricultural to Conditional R-15 Residential and to develop the overall site with 35 single-family dwellings. Comprehensive Plan: The Comprehensive Plan Map identifies this area as part of the Suburban Area. The land use planning policies and principles for the Suburban Area focus strongly on preserving and protecting the overall character, economic value, and aesthetic quality of the stable neighborhoods located in this area. MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 3 Evaluation: This proposal is an infill development between an existing R-15 Residential Open Space Promotion subdivision, Indian River Farms, and a Conditional R-15 Residential subdivision, River Oaks. The lot sizes and density proposed by the applicants are consistent with the surrounding neighborhoods, as are the proposed size and design of the dwellings. A single access point from Indian River Road and a connection via Peachtree Lane at River Oaks are consistent with the previous rezoning and development of the River Oaks subdivision to the south. The site is located within the 65 to 70 dB Ldn AICUZ, Sub -Area 3, where residential uses are considered not compatible. If this entire site was zoned Agricultural and the request was for a rezoning to Residential, a recommendation to not approve the rezoning would be made. In this case, however, the vast majority of the site is already zoned Residential and 49 dwellings can be constructed by -right. The development proposed by the applicants consists of only 35 units; thus, the result of this change of zoning request is fewer dwelling units than what can be built by -right. The applicant met with the Joint City -Navy MOU Committee on November 19, 2009. The Committee staff reviewed the application against the requirements of Section 1804(a) Discretionary Development Applications and Section 1804(c)(3) Special Regulations in the 65-70 dB DNL Noise Zone. The City -Navy Memorandum of Understanding (MOU) group reviewed the application and determined that it meets the requirements of Article 18 of the City Zoning Ordinance, AICUZ Overlay Ordinance, as the resulting number of units to be constructed on the parcel is lower than the number that could be constructed with the existing zoning. Planning Staff also suggested to the applicant that an avigation easement should be proffered. The easement will be consistent with the provision of Section 14 of Appendix I (Airport Noise Attenuation and Safety Ordinance) of the City Code, which notes that such and easement "shall acknowledge the right of the United States Navy to conduct military operations in the airspace above the property and shall include a covenant not to bring legal action for damages or other relief as a result of noise levels from overflights." Proffer 4, below, provides for such an avigation easement. Staff, therefore, recommends approval of the request subject to the proffers listed below. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h) (1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the Property is developed, it shall be developed substantially as shown on the exhibit entitled "Conceptual Site Layout of Davis Estates, Indian River Road, Virginia Beach, Virginia", dated June 30, 2009, prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Site Plan"). PROFFER 2: MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 4 The use of the Property shall be single-family residential dwellings. PROFFER 3: The proposed single-family residential dwellings will be consistent with surrounding neighborhoods, both in design, size and building materials. PROFFER 4: The property shall be subject to an avigation easement, which shall acknowledge the right of the United States Navy to conduct military operations in the airspace about the property and shall include a covenant not to bring legal action for damages or other relief as a result of noise levels from overflights. The avigation easement shall be in a form recommended by the Director of Planning and approved by the City Attorney and shall be recorded with the final subdivision plat. STAFF COMMENTS: The proffers listed above are acceptable as they dictate the proposed layout of the subdivision, the proposed use of the property, and the type of structures to be developed. The City Attorney's Office has reviewed the proffer agreement dated October 23, 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 and Standards. Any site plan submitted with this change of zoning 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 change of zoning are valid. 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. MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 5 AERIAL OF SITE LOCATION MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 6 PROPOSED SITE PLAN MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item, 15 Page 7 � y a R_ g x u � APIR I�G ii V lt! lLJ� a 1 14 ol o u l)y 1 r', fl T %s 1 iA 4141 ti4f ll PROPOSED SITE PLAN MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item, 15 Page 7 � y a R_ g x h APIR I�G ii ol 1 r', fl T %s 1 _ i 3; U' k � i , g z PROPOSED SITE PLAN MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item, 15 Page 7 -W 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) Morris H. Fine and Robert F. Hagan, Special Commissioners by virtue of Order entered by the Virginia Beach Circuit Court on March 27, 2009 and May 8, 2009, attached hereto and made a part hereof. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) n/a ✓❑ 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: i. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Moms H. Fine and Robert F. Hagans, Special Commissioners by virtue of Order entered by the Virginia Beach Circuit Court on March 27, 2009 and May 8, 2009 attached hereto and made a part hereof. 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) n/a ❑✓ 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 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? Conditional Rezoning Application Page 11 of 12 Revised 11/1612006 MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 9 11 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Mike Perry, MSA, P.C., 5033 Rouse Drive, Virginia Beach, VA 23462 (490-9264) (engineering) Gregory R. McCracken, 2101 Parks Avenue, #601, Virginia Beach, VA 23451 (legal) ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. �/ ! . � •�--' Morris H. Fine/Robert F. Hagans d Applicant's Signature Print Name Morris H. Fine/Robert F. Hagans Property Owner's Signature (if different than applicant) Print Name Conditional Rezoning Application Page 12 of 12 Revised 71312007 MORRIS H. FINE & ROBERT F. HAGANS, SPECIAL COMMISSIONERS Agenda Item 15 Page 10 Item #15 Morris H. Fine & Robert F. Hagans, Special Commissioners Change of Zoning District Classification South side of Indian River Road east of Morgans Point Drive 3807 and 3809 Indian River Road District 1 Centerville January 13, 2010 REGULAR Joseph Strange: We're going to move on with the next item. Al Henley: Okay. The next item is item 15, Morris H. Fine & Robert F. Hagans, Special Commissioners. An application of Morris H. Fine and Robert F. Hagans for a Change of Zoning District Classification from R-15 Residential District, AG -1 and AG -2 Agricultural Districts to Conditional R-15 Residential District on property located on the south side of Indian River Road, east of Morgans Point Drive, 3807 and 3809 Indian River Road, Centerville District. Morris Fine: I'm Morris Fine. I am one of the Special Commissioners that is involved in this rezoning. This has been in the Circuit Court for something like five years now, and it finally ended up that Mr. Hagans and I were appointed as Special Commissioners to sell the property. In order to better develop the property, we hired MSA, who has done a plan. As you can see the property is already zoned R-15, and we would have a right to 49 lots. There are two places in the property that is zoned agriculture. And we are encompassing that agricultural into the residential zoning, and that is why we need the rezoning. We think that this plan which ends up with only 35 lots rather than, if you added the two agricultures with the 49 of right lots, we would be able to put 52 lots, we think that this 35 lot is a much better plan. There is interest in the development community to purchase the property. It would all be subject to what the court would approve. We think it would be your pleasure to approve this plan. There is someone from the Davis Family here, who I think opposes it. He's opposed the entire process and the court as well. He would have his say. Joseph Strange: Does anyone have any questions? If you would stand by we will call you back. Al Henley: I do not have any speakers in opposition. Is there anyone here in opposition who would like to speak? Joseph Strange: I will open it up to the Commissioners. This was pretty much on consent until we thought we had opposition. Ronald Ripley: A motion to approve. Janice Anderson: Second. ( Joseph Strange: A motion has been made by Ron and seconded by Jan. We lost our vote keeper. Item #15 Morris H. Fine & Robert F. Hagans, Special Commissioners Page 2 Henry Livas: He didn't think we would be ready that quick. Ed Weeden: What was the recommendation, approval? Janice Anderson: Yes. Ed Weeden: By whom? Joseph Strange: A motion by Ron and seconded by Jan. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved the application of Morris H. Fine and Robert F. Hagans, Special Commissioners. In Reply Refer To Our File No. DF -7578 TO: Mark D. Stiles FROM: B. Kay Wilson CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: February 11, 2010 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Morris H. Fine and Robert F. Hagans, Special Commissioners The above -referenced conditional zoning application is scheduled to be heard by the City Council on February 23, 2010. 1 have reviewed the subject proffer agreement, dated October 23, 2009 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen This Document Prepared by: Fine, Fine, Legum & McCracken, LLP THIS AGREEMENT made this 23`d day of October, 2009 by and between MORRIS H. FINE and ROBERT F. HAGANS SPECIAL COMMISSIONERS o/b/o CLIFTON S. DAVIS CLINTON T. DAVIS JEAN A. WILSON MILDRED L. DAVIS FORBES and LONNIE L. DAVIS. JR., Property Owner, herein referred to as Grantor, party of the first part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the second part. WITNESSETH: WHEREAS, Property Owner is the owner of certain parcels of property located in the Centerville District of the City of Virginia Beach, more particularly described as follows: See Exhibit "A" said parcels hereinafter collectively referred to as the "Property"; and WHEREAS, by Order entered by the Circuit Court of the City of Virginia Beach, Virginia on March 27, 2009, in the matter of Lonnie L. Davis Jr et al v Clifton S Davis Sr et al., Case Nos. CH02001625 and CH03002559, Morris H. Fine and Robert F. Hagans were duly appointed as Special Commissioners, to sell the aforesaid property and to explore rezoning; and WHEREAS, by Order entered by the Circuit Court of the City of Virginia Beach, Virginia on October 16, 2009, the Special Commissioners were granted the authority to proceed with the filing of an Application for Rezoning of the aforesaid property; and WHEREAS, the Grantor has initiated a conditional amendment to the zoning map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning GPIN 1474-80-7178;1474-90-4146 &1474-90-7314 Classification of the Property from R-15, AG -1 and AG -2 to Conditional R-15; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit different types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the Grantor's proposed rezoning, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to resolve the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map with respect to the Property, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, its successors, personal representatives, assigns, Grantee, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion oruid pro qj o for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, Grantee, and other successors in interest or title: When the Property is developed, it shall be developed substantially as shown on the exhibit entitled "Conceptual Site Layout of Davis Estates, Indian River Road, Virginia Beach, Virginia", dated June 30, 2009, prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Site Plan"). The use of the Property shall be single family residential dwellings. 3. The proposed single-family residential dwellings will be consistent with surrounding neighbors, both in design, size and building materials. 4. The property shall be subject to an avigation easement, which shall acknowledge the right of the United States Navy to conduct military operations in the airspace about the property and shall include a covenant not to bring legal action for damages or other relief as a result of noise levels from overflights. The avigation easement shall be in a form recommended by the Director of Planning and approved by the City Attorney and shall be recorded with the final subdivision plat. All references hereinabove to the AG -1, AG -2 and R-15 Zoning District and to therequirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that such instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantors covenant and agree that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied, and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding, (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantors and the Grantee. WITNESS the following signat�esand se Is*, �� r Morris H. Fine, Special Commissioner Robert F. Hagans, Special r'mmissioner STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: I, Arlene A. Kilgore, a Notary Public in and for the City and State aforesaid, do hereby certify that Morris H. Fine, Special Commissioner, whose name is signed to the foregoing instrument dated the 23`d day of October, 2009 did personally appear before me in my City and State aforesaid and acknowledge the same before me. GIVEN under my hand and seal this " J day of October, 2009 ARLENE A. KILGORE Notary Public commonwealth of Virginia Notary Public; Registration T4W 212162 212162 t,mty Commission Expires Sep 30, 2011 M commission expires: September 30, 2011 STATE OF VIRGINIA,' , 7 1, , 4 CITY OF NKK, to-�vit: a Notary Public in and for the City and State aforesaid, do hereby certiiry that Robert F. Hagans, Special Commissioner, whose name is signed to the foregoing instrument dated the 23`d day of October, 2009 did personally appear before me in my City and State aforesaid and acknowledge the same before me. GIVEN under my hand and seal this � day of October, 2009 Notary Public; Registration Nor'. My commission expires: ARLENE A. KILGORE Notary Public into commonwealth of Virg 212162 c 30.2011 MY commission Expi`PS o -P Exhibit "A" FIRST: One certain piece or lot of land, containing 25-3/4 acres lying in the County of Princess Anne, Virginia bounded by the lands of Lycurgus Ward and others, beginning at a post on the New Turnpike Road leading from North Landing to Norfolk, North 47-1/2 degrees West 6.00 to a post; thence along a line of marked trees to the center of a swamp; thence down the center of said swamp to a gum a corner of Ward and Davis; thence North 78 degrees East 4.71 chains to a maple, North 69 degrees East 4.12 chains, North 68 degrees East, 70 chains, North 69 degrees East .50 chains North 1 degree East 1.00 chains, North 40 degrees East 1.54 chains, North 67 degrees East 2.26 chains, North 64-1/2 degrees East 4.36 chains, North 39 degrees East 2.33 chains, North 24 degrees East 1.3 chains to a polar, North 63 degrees East 5.82 chains to an oak, North 56-1/2 degrees East 7.51 chains to the beginning containing 25-3/4 acres. SECOND: All that certain tract of land, containing 6 acres, more or less, situate in Kempsville Magisterial District, Princess Anne County, Virginia, on the New Turnpike Road, beginning at the Turnpike Road and running back within 47 yards of the fence to a chopped beech tree adjoining the lands now or formerly Lycurgus Ward; thence on East course to the Turnpike Road; thence up the said road to the point of beginning, the same being on the front and westward side of the road or upgoing leading to the house now or formerly Duren F. Murden's. LESS and EXCEPT that portion of the property conveyed out May 29, 1974 in Deed Book 1423, page 10. Deed of Clarification recorded February 4, 1982 in Deed Book 2189 page 98 and in Deed Book 1942, page 48 (in Chesapeake). LESS and EXCEPT that portion of the property conveyed to the City of Virginia Beach by certificate of take recorded in Deed Book 4356, page 777 and confirmed in Order recorded August 28, 29002 as Instrument Number 200208283024548. Oct 15 09 10:19a LAW OFICES 7577-7858 9 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH LONNIE L. DAVIS, JR., et al Plaintiff, V. CLIFTON S. DAVIS, SR., et al Defendant. Case Nos. CH02001625-00, and CH03002559-00 ORDER THIS CAUSE came to be hcard on the motion of the Morris H. Fine, Co -Special Commissioner for permission to proceed and file Application for Rezoning and was argued by counsel. UPON CONSIDERATION WHEREOF and for good cause shown, it is ADJUDGED, ORDERED and DECREED that the Special Commissioners, on behalf of the owners of the real estate herein, be and hereby are authorized to proceed with the filing of an Application for Rezoning pursuant to the previous orders of this Court. ENTER: /.L) l v^ A ;ask for this: / ri . Fine, Special Commissioner gtl� 4. Robert F. Hagans, Special Co k . ssioner p.l VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH LONNIE L. DAVIS, JR., et al Plaintiff, V. Case Nos. CH02001625-00, and CLIFTON S. DAVIS, SR., et al CH03002559-00 Defendant. ORDER THIS CAUSE came to be heard on the petition of the Morris 1-1. Fine, Co -Special Commissioner for permission to hire an engineering firm and was argued by counsel UPON CONSIDERATION WHEREOF and for good cause shown, it is ADJUDGED, ORDERED and DECREED that the Special Commissioners be and hereby are authorized to retain the services of MSA, P.C., Civil Engineers, for purposes of a re -zoning application. It is further ADJUDGED, ORDERED and DECREED that the terms and condition of hiring shall be left with the Special Commissioners discretion and approval and that the fees associated therewith shall be deferred until such time as the property is sold. ENTER: S --a-09 oe Judge I ask for this: Morris H. Fine, Special Commissioner Robert F. Hagans, Special Commissioner CERTIFIED TO BE A TIRUE Cop, OF RECORD IN Wy CUSTODY TIW CBA VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH LONNIE L. DAVIS, JR., et al Plaintiff, V. CLIFTON S. DAVIS, SR., et al Defendant. Case Nos. CH02001625-00, and CH03002559-00 THIS CAUSE came to be heard on January 12, 2009, before the Honorable Thomas Padrick, Judge, upon the pleadings formerly filed; the Answer by counsel for Clifton S. Davis; Clinton T. Davis appearing in person and pro se; the Report of the Commissioner in Chancery to whom this matter was duly referred; the Commissioner in Chancery having.taken evidence ore tenus on January 17, 2008; the Exceptions to the Commissioner's Report by Clifton S. Davis and Clinton T. Davis; the notice that the Exceptions be heard to counsel for Clifton S. Davis and served upon Clinton T. Davis pursuant to previous orders of Court; the evidence heard ore tenus and was argued by counsel. UPON CONSIDERATION WHEREOF and it appearing to the Court for and for good cause shown that the Report of the Commissioner in Chancery should be confirmed, it is ADJUDGED, ORDERED and DECREED that the Report of the Commissioner in Chancery be and hereby is ratified, confirmed and incorporated herein as if fully set forth and the exceptions by Clifton S. Davis, Sr. and Clinton T. Davis are denied.. It is further ADJUDGED, ORDERED and DECREED that the findings of the Court set forth in the transcript attached hereto of January 12, 2009 are hereby incorporated herein as if tl fully set forth. UPON FURTHER CONSIDERATION and the Court having confirmed the Commissioner's Report, it is ADJUDGED, ORDERED and DECREED that the last will and testament of Lonnie L. Davis, Sr. of October 25, 1994 be and hereby is declared to be the last will and testament of Lonnie L. Davis, Sr., it appearing that the Statute of Limitations bars the attack on the will and factually the will is a proper will. And it further appearing to the Court pursuant to Article II of the will that 9.5 acres were to be sold and divided, which was previously done by order of this court in the matter of Lonnie L. Davis. Jr.. et al. v. Clifton S. Davis and Clinton T. Davis. Case No.CH99-3314 and the funds were distributed and divided in accordance with that article of the will. And it further appearing to the Court that Article III requires that each person receive "road frontage" and it appearing to the Court that it is impossible to divide up the road frontage in compliance with the zoning and planning statutes of. the City of Virginia Beach. And it further appearing to the Court that pursuant to Article III of the will where the will identifies 25 acres, that the Report of the Commissioner correctly states that the amount of the acreage is 25.48 acres and where the will says 6 acres, the Report of the Commissioner correctly sets forth 4.8 acres; And it further appearing to the Court that Doris M. Davis having predeceased and leaving no spouse or children, her share is to be divided equally amongst the remaindermmen who are parties to this suit and her siblings; it is therefore ADJUDGED, ORDERED and DECREED that the 25.48 acres and the 4.8 acres be sold and divided in accordance with the following devises in accordance with the will and the Report of the Commissioner in Chancery: -2- 0 Clifton S. Davis 7.2% Clinton T. Davis 12.2% Jean A. Wilson 12.2% Mildred L. Davis Forbes 12.2% Lonnie L. Davis, Jr. 56.2% And it further appearing to the Court that the will in Article III, sets forth that Clifton S. Davis shall receive 1.5 acres adjoining his existing 1.5 acres and it appearing to the Court from the Commissioner's Report and the evidence, specifically the survey, that Clifton S. Davis owns .702 acres instead of 1.5 acres and that the .6 acres which he received from his sister, Doris M. Davis, should be added to the 1.5 acres he receives from the will so that he receives a total of 2.1 acres and this devise does not exceed the acreage as set forth in the will and it further appearing to the Court that his existing .702 acres shall remain his property and that the 2.1 acres shall be sold and he shall receive his pro -rata share as previously recited herein. le Vk— It is further ADJUDGED, ORDERED and DECREED that Clifton S. Davis hast 1.6 days to present present a new survey by a surveyor licensed and in good standing, proving that the survey introduced into evidence at the trial of this matter showing he owns a .702 acre parcel and not 1.5 acres as stated by the will is incorrect, this order shall be modified to reflect the correct acreage he owns. It is further ADJUDGED, ORDERED and DECREED that Morris H. Fine and Robert Hagans, be and hereby are appointed as Special Commissioners to sell, publicly or privately, said property; the Special Commissioners being given wide authority to obtain the highest sum for the property and shall explore rezoning the property and the Special Commissioners shall report back to the Court regarding these matters and that when a contract of sale is made, before executing a deed and receiving the funds, the Special Commissioners shall report to the Court and post an appropriate bond at that time. And the Court further finds that the plaintiffs have incurred litigation costs to date in prosecuting this suit in the sum of $18,791.93 pursuant to the attached Exhibit "A" - Detail Cost Transaction File List. It is further ADJUDGED, ORDERED and DECREED that these costs as well as the remaining costs including the Special Commissioners' fee be paid from the proceeds of sale prior to any distribution to the parties. It is further ADJUDGED, ORDERED and DECREED that the Motion for Sanctions of the plaintiff be and hereby is denied and the Motions for Referral and Injunction of the defendants, be and hereby are denied. ENTER: 3 -Aa scr Judge I ask for this: 14 � p•q• Morris H. Fine Seen and object to SOL1�-- Seen and objected to as to costs awarded plaintiffs; PV f+y es .turn rip - i +DQ I Gn "`� tyA 14 c"�A, rr 'w p. d.ovt.S- Robert F. Hagans, Jr. Clinton T. Davis, pro se CERTIFIED TO BE A TRUE CCPV OF RECORD IN MY CUSTODY Ja ,LP:PV DEPUTY CLERK Item V -J. 7. PLANNING -37 - ITEM # 46436 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED the Ordinance upon application of TROYA. TITUS for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF TROY A. TITUS FOR A CHANGE OF ZONING DISTRICT CLASSIFICATIONFROMB-2 and R- 7.5 TO CONDITIONAL B-2 Z03001162 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Troy A. Titus for a Change of Zoning District Classification from B-2 Community Business District on property located 210 feet more or less south of Indian River Road, beginning at a point 573.68 feet east of Kempsville Road (GPIN #1465-37-0414). The proposed zoning classification change to Conditional B-2 is for commercial land use. The Comprehensive Plan recommends use of this parcel for retail, service, office and other compatible uses within commercial centers in accordance with other plan policies. Said parcel is located at 521 Indian River Road and contains 1.474 acres. CENTER VILLE - DISTRICT 1. The following condition shall be required: Agreement encompassing proffer shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the proceedings. This Ordinance shall be effective in accordance with Section 107 (9 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty -eighth of March. Two Thousand Voting: 11-0 (By Consent) Council Members Voting Aye: John A. Baum, Linwood O. Branch, 111, Margaret L. Eure, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don " Weeks -36 - Item 36 - Item K3. PLANNING ITEM # 53991 The following spoke in SUPPORT of the application: William Verebely, Verebely & Associates Architects, 2200 Dunbarton Drive, Chesapeake, Phone: 424-4351, represented the applicant. Mr. Verebely met with Councilman Dyer and City staff to discuss issues regarding traffic impacts. Mr. Verebely advised because of the nature of his client's business, he prefers to have a strip retail center rather than 3 -story office building. The applicant has provided a revised plan addressing the concerns (access to the rear lot, and thus access to Kempsville Road has been eliminated). Mitchell Dunbar, 1234 E. Ocean View Avenue, Norfolk, Phone: 620-1823, represented the applicant. Mr. Dunbar and his son plan to develop this property. At the present time, there is an easement through the Golden Corral. However, they wish to scale the application to a retail complex and possibly close the easement. Mr. Dunbar envisions a Pawn shop similar to his other operation in Virginia Beach. The next phase will be the design of the building. If the application is approved, the easement through Golden Corral will be closed. Upon motion by Councilman Dyer, seconded by Councilman Diezel, City Council MODIFIED, AS PROFFERED, Ordinance upon application of LAND & BUILDING IV. L.C. re Modification of Proffer Number 1 on a Conditional Change oiZoning (approved by City Council on March 28, 2000 Troy A. Titus), re access to a strip retail center. ORDINANCE UPON APPLICATION OF LAND & BUILDING IV. L. C. FOR THE MODIFICATION OF PROFFERS FOR A CONDITIONAL CHANGE OF ZONING A PPLICA TION APPRO VED BY CITY COUNCIL ON MARCH 28, 2000 (TROY A. TITUS) Z05051224 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Land & Building IV. L. C. for the Modification oLEroffers for a Conditional Change of Zoning application approved by City Council on March 28, 2000 (Troy A. Titus). Property is located at 5221 Indian River Road (GPIN 14654704140000). The Comprehensive Plan designates this site as being part of the Primary Residential Area, suitable for appropriately located suburban residential and non-residential uses consistent with the policies of the Comprehensive Plan. The purpose of the requested modification is to develop the site for a strip retail center rather than the previously approved office building. DISTRICT 1 - CENTERVILLE The following condition shall be required: 1. A Modified Agreement encompassing modified proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record. The traffic engineers shall be involved in any discussions re maximizing the quality of the traff c flow in this area (i.e. traffic signalization). May 24, 2005 - J/ - Item K.3. PLANNING ITEM # 53991 (Continued) This Ordinance shall be effective in accordance with Section 107 (0 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of May, Two Thousand Five Voting: 8-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Abstaining: Vice Mayor Louis R. Jones Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood Vice Mayor Jones ABSTAINED as he owns three (3) properties directly across from the application May 24, 2005 .D C- 10 A A r -N IF -Ilk a A A-1 Map Not to Scale AutoZone Development torn. a / B B2 �� ( PD 132 PD' I, B2 //Al2 B2 Al2 02 Z/ 0 V.!r` 91?',',-,,-,-e?Modification of Conditions ter •� iFs� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Modification of Conditions, approved by City Council on March 28, 2000 and May 24, 2005, 5221 Indian River Road. CENTERVILLE DISTRICT. MEETING DATE: February 23, 2010 ■ Background: A Conditional Change of Zoning from B-2 Community Business District and R-7.5 Residential District to Conditional B-2 Community Business District was approved by City Council on March 28, 2000. The proffers of that rezoning were later modified by City Council on May 24, 2005, and that modified Conditional Change of Zoning has three proffers. The first proffer requires that the site layout, landscape, and building design be substantially in compliance with the proffered site plan and elevations. The applicant desires to modify the proffer to allow the construction of an alternative 7,381 square foot retail store (Autozone automobile parts). The proposed retail facility is slightly smaller than what was approved in 2005, and the site layout and building are different than what was previously approved. The applicant also requests modification of the third proffer to allow signage in accordance with regulations as established within the City of Virginia Zoning Ordinance rather than as originally proffered. ■ Considerations: Similar to the 2005 approval, the site is designed with the building situated close to Indian River Road. This layout aligns the front of the building with the other buildings to the west and away from the adjacent multifamily dwellings. As with the original rezoning, one full -access driveway is provided on Indian River Road. Parking is situated along the northeast, southeast, and south sides of building and an open grass field with retention pond and perimeter landscaping is located near the rear of the site. The building facade consists of tan -toned split -face block and white exterior insulation finish system (EIFS) with orange trim and black decorative lights. Architectural shingles and circular faux vents are incorporated into the pediment features located at the corner of the building at the entrance. The entrance to the store is located on the south side of the building and large storefront windows are located on the southeast corners of building. Autozone Development Corporation Page 2of3 The mass of the proposed building is smaller than what was previously approved by City Council, and as a result, the proposed building will have a reduced visual impact. The proposed exterior building materials will be an upgrade to what is currently on the site. The proposed building design complements the surrounding business community, and the proposed perimeter landscaping softens the view of site as seen from the right-of-way and surrounding properties. Additionally, as a result of the smaller building size, the projected level of generated traffic is slightly less than that generated by the currently proffered plan. There was no opposition to the request. ■ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval of this request to the City Council as proffered. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager. . AutoZone Development l,or . Me;� M1rrt !o S.e�e iy B2 B2 Ri`e PDH1 82 82 Al2 Al2 Modilicadon of Conditiom February 10, 2010 Public Hearing APPLICANT: AUTOZONE DEVELOPMENT CORPORATION PROPERTY OWNER: LAND & BUILDING IV, L.C. STAFF PLANNER: Leslie Bonilla REQUEST: Modification of a Conditional Change of Zoning from B-2 Community Business District and R-7.5 Residential District to Conditional B-2 Community Business District approved by the City Council on May 24, 2005 ADDRESS / DESCRIPTION: 5221 Indian River Road GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14654704140000 CENTERVILLE 1.474 acres Less than 65 dB DNL The Conditional Change of Zoning from B-2 Community SUMMARY OF REQUEST Business District and R-7.5 Residential District to Conditional B-2 Community Business District was approved by City Council on March 28, 2000. The conditions of the 2000 rezoning were later modified by City Council on May 24, 2005, and that modified Conditional Change of Zoning has three proffers, which are listed on the following page. The first proffer requires that the site layout, landscape, and building design be substantially in compliance with the proffered site plan and elevations. The applicant desires to modify the proffer to allow the construction of an alternative 7,381 square foot retail store. The proposed retail facility is slightly smaller than what was approved in 2005, and the site layout and building are different than what was previously approved. The applicant also requests modification of the third proffer to allow signage in accordance with regulations as established within the City of Virginia Zoning Ordinance rather than as originally proffered. AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 1 The proposed building is centered near the front property line and one full access point is provided on Indian River Road. Parking is situated along the northeast, southeast, and south sides of building and an open grass field with retention pond and perimeter landscaping is located near the rear of the site. The building facade consists of tan -toned split -face block and white exterior insulation finish system (EIFS) with orange trim and black decorative lights. Architectural shingles and circular faux vents are incorporated into the pediment features located at the corner of the building at the entrance. The entrance to the store is located on the south side of the building and large storefront windows are located on the southeast corners of building. 2005 Proffers 1. When the Property is developed, the site plan, landscape plan and building elevation shall be developed substantially as shown on the site plan entitled "PROPOSED RETAIL CENTER FOR LAND & BUILDING IV, L.C. 5221 INDIAN RIVER ROAD VIRGINIA BEACH, VA," dated November 5, 2004, made by Verebely & Associates, Architects, Chesapeake, Virginia (Site Plan), which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. 2. In addition to those uses which are prohibited by law, the following uses shall be prohibited on the Property: a. Eating and drinking establishments with drive-through windows; b. Greenhouses and plant nurseries; and c. Grocery stores, carry -out food stores and convenience stores, any of which are not freestanding. 3. Grantor covenants and agrees that a monument sign shall be located as shown on the site Plan. Grantor further covenants and agrees that tenant signs shall be installed adjacent to or above tenant entrance doors, and will be box type, lighted signs. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Vacant retail building/office building with associated parking (most recently used for a pawn shop) SURROUNDING LAND North: . Indian River Road USE AND ZONING: . Auto repair & retail establishments / B-2 Community Business District South: . Office buildings and restaurants / B-2 Community Business District • Multi -family dwelling / PD -H2 Planned Development District East: . Car wash / B-2 Community Business District • Multi -family dwelling / PD -H2 Planned Development District West: . Auto repair and restaurants / B-2 Community Business District AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 2 NATURAL RESOURCE AND There are no significant natural resources or cultural features associated CULTURAL FEATURES: with this site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Indian River Road is considered a six -lane divided urban arterial. The MTP proposes an access -controlled, divided facility with scenic buffer within a 155 -foot right-of-way. Currently this segment of roadway is functioning over capacity at a LOS F. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Indian River Road 64,288 ADT 42,100 ADT (Level of Previous Land Use — 344 Service "D") ADT 2005 Proffered Land Use 3 — 452 ADT Proposed Land Use 4— 447 ADT; (Peak Hour Vehicles: 16 morning and 43 afternoon Average Daily Trips Y as defined by 2,200 square foot pawn shop/loan acceptance 3 as defined by 10,000 square foot retail center ° as defined by 7,381 square foot auto parts store WATER: This site is currently connected to City water. The existing 1 -inch meter (City ID # 95087543) may be used or upgraded to accommodate the proposed development. SEWER: City sanitary sewer is not available as there is no sanitary sewer in the vicinity of this site. Private grinder pumps and force main are an option. There is a 42 -inch Hampton Roads Sanitary District sanitary force main on Indian River. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request as proffered. The proffers are provided below. Evaluation: The proposed modifications will not change the uses that are allowed on the site by the proffers of the 2005 Change of Zoning modification. The primary purpose of the current proposal is to modify the site layout and building elevations. AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 3 The mass of the proposed building is smaller than what was previously approved by City Council, and as a result, the proposed building will have a reduced visual impact. The proposed exterior building materials will be an upgrade to what is currently on the site. The proposed building design complements the surrounding business community, and the proposed perimeter landscaping softens the view of site as seen from the right-of-way and surrounding properties. Similar to the 2005 approval, the site is designed with the building situated close to Indian River Road. This layout places the building similar to the other buildings to the west and away from the adjacent multifamily dwellings. Additionally, such a layout places the majority of the parking at the rear of the site, behind the building. 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: Any prior proffered conditions, including the Original Proffers and Amended Proffers are hereby superseded in their entirety. PROFFER 2: When developed, the improvements and landscaping on the Property shall be developed in substantial conformance with the site plan entitled "Site Layout Plan, AutoZone #4916 Virginia Beach, Virginia", dated September 2009, and prepared by Burgess & Niple (the "Site Plan"), which site plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. PROFFER 3: When developed, the building located on the Property shall be developed in substantial conformance with the colors, materials, and architectural features depicted on the rendering entitled "Drawing CE -1, Color Elevation, AutoZone Store #4916, Virginia Beach, VA," dated January 19, 2010 (the "Building Rendering"), which rendering has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. PROFFER 4: In addition to those uses prohibited by applicable laws, the following uses shall be prohibited on the Property: (a) Eating and drinking establishments with drive-through windows; (b) Greenhouses and Plant nurseries; and (c) Grocery stores, carry -out food stores and convenience stores, any of which are not freestanding. PROFFER 5: Signage installed on the Property shall comply with the requirements set forth in the Virginia Beach Zoning Ordinance and other applicable codes, subject to variances approved by the appropriate authority. PROFFER 6: Further conditions lawfully imposed by applicable development ordinances may be required by the Grantee AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 4 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. STAFF COMMENTS: The proffers listed above are acceptable as they dictate the level of quality of the project. Decorative lighting, variations in roof lines, and display windows enhance the quality of this project. The proffered plan also ensures that the existing multifamily dwellings are protected by situating the retail toward Indian River Road and away from the multifamily dwellings. The City Attorney's Office has reviewed the proffer agreement dated December 1, 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 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 Change of Zoning are valid. 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. AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 5 AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 6 All PROPOSED SITE PLAN AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Itern 1 Page 7 2005 APPROVED PLANS AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Itehn 1 Page 8 PROPOSED BUILDING ELEVATION AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 9 # DATE DESCRIPTION ACTION 1 05/24/05 03/28/00 Modification of Proffers Change of Zoning B-2 & R-7.5 to Conditional B-2 Granted Granted 2 07/13/04 Modification of Conditions Granted 3 08/08/00 Change of Zoning (R-7.5 to A-12 with PD -H2 overlay) Granted ZONING HISTORY AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 1 t) C> 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) AutoZone Development 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) AutoZone, Inc. ❑ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only ff 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 ff necessary) Please see attached sheet. 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Please see attached sheet ❑ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 8 See next page for footnotes �y Does an official or employee of the City of Virginia Beach have an interest in the F�subject land? Yes No X If yes, what is the name of the official or employee and the nature of their interest? A 0 MocifaApp Pape 10 11 Revived 7/313 100 7 AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 11 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: tNAttach list If necessarryy) Burgess & iple — Engineering Servi6ds MclMied DIDiano & Mox, LLC — Surveying Services Troutman Sanders LLP — Legal Services Commercial Real Estate Services — Real Estate Services ' "Parent -subsidiary relationship" means "a reiadonship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation.' See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent - subsidiary relationship, that exists when (1) one business entity has a controlling ownership Interest in the other business entity, (Il) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship Include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there Is otherwise a close working relationship between the entities.* See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that upon receipt of notMcation (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. r t'g Signatu Print Name ?us Cp►+ssnuu+o►. rte L�INC! q f3u� ftp h 1�, L. Fol �u�oza & : `1"1G ,t°�►. M4naW' �ICAe// Zee l P Owner's Signa iure (if different than applicant) ✓ Print Name - I -,r 1.. rl...L-_ „�_--_--- Aanaccr Modmoason of cwWftm Appkadw Pape 11 of 11 P&AW 7/312007 AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 12 CERTIFIED RESOLUTION OF BOARD OF DIRECTORS OF AITOz.ONE DIEVELOPMEtiT CORPORATION L 11ARRY L. Crl1LDS),IH ft do hereby cernh' that I dill the Secretary' of Auto/.on_ Developnient Corporation a Corporaon organized under the law s of the State of Nevada the "Compare"), and that at a meeuu,_ of the Board of Duector, ,lf the Company comcned and held In accordance with thu laws of the State of Nevada and the Bylaw's of the Company nn the l lith day of December. 2(1114. tate Board of Directors of the Cunlpany adoptees the tidloa'ing resolunons, wtuch are curiently in !till force ane! Utica wlthuut amendment RESOLVED, that any two officers of the Company arc• hereby authorized and empowered, fur and on behalf of the Company. to cxceute any and all agreemcuts, contracts, deeds, notes. deeds of trust, leases and other Instruments in connection with anv and all purchases. sales. transfers, leases. or other uses of teai property ur personal ptupeity tuil on ccrealiei owned or used by the Company. in the normal course of business. without further authorization by the Board of Dire•_tors. BE l I Fl_'R HIER RESOLVED, that ally two otlicers of the Company are hcrehy authorized and empowered, for and on behalf of the Company, front nine to time to designate specific corporate employees who Lite authorized to withdraw funds fruni designated connneiclal banks on su:.h tenus as nu% be deemed advisable by said utflcers, to make short term uttestments, and to make. execute and deliver checks. notes, renewal notes and exlen,tun,, asslenmcuts, endorsements. morwages, deeds of a ust, guarantees. and other Instntments or uisnllctions as: niav he deemed advisable by said officers, to the normal course of business without other authomarlon by the Board of Directors BI: CT 1•H R I IILp. RE1t 1I.1,11:1, th,lt .In tesolunrn; Ic luucd w be Idupted b', 111%. Faruk ur other mitt_; transaclim_ huanes, wnh the t'nn,pan; tin the normm a; :our,e of htlsmess shall he deemed it, have beet, adopted by the Board of Dilecnn's rtf the I oll•.panc a, hlil•, as If set I',nth vethalun herem, and the Secretor': or the Assistant set ietaryof the C'umpam' a herehc awhort._ed to certify to the adoption ret an• such reytitl d t esollltluni 1 further reins: that the duh' electees and cuahfied >fticat; -It IT: t nnlpan: air as hallow. V.illlanit' Rhode., Ill I'te,ldenr . Chief, srcull : Ltliiccr Bradley 11'. Harrill I- %ecutl%C \ Ice I're,idem I!afr\ 1. (lull I:�IT11Ill LYC.:llll\'c' \�ll l' I'IC,Ideltt. �i �t'!'tarl' S' (1Clleral 1. �t111:1sel Roheit D t)Len hsc'Awl"k: Vice Prc,ld_ni tam., ;\ .thea p�crun',e \1:c Pr:•ul_a; i.:.a R Kraus I I:noih•: \1 Fcler.. , +crud 1'I,,. Ple,ldclo t:eheLiJ l\'. ItaiL:u \ Ir Pr.• -:Iden•. ,\-.st to^,,:nal!-ntul:a•I \ A,,, :rcr<•t:1�•. ( lal_S` Hlal lie, lie• pic,let ll' )ail Bar,,' I \Iii PI: •.d%'n. 11111\::1:1�m \I,c' {'1'e',id:•ti; Iieli,V111 !al_ lie Prv,ldoly K'oiled: ;. it:atril: \ l::' Pl�,ldt'I it M!Aiael 1 . Blo"'.11A :,r Prr nJeia Haan I Canlphell \ r_c Prc.ldeci Jami,.% 1, ,L ll; 1'I,C Plvr ld:11 & I lrnuu'I Phlllp B. Omilc•lc 'll Ci' Pic,I&Ilt Blcn It Hasa , \'l, r I'rr Iden: \\:I'oani R I.. nc%ar,i- it Hark A, i;rel ;t„ue \ I.': Pre Idem Ll.nl;itiilnllrr \':,ci'rr;Ident \,,IUt.1•'. t n_'; i enud \'L c Prr.Iaant DISCLOSURE STATEMENT AUTOZONE DEVELOPMENT CORPORATION 1 LAND & BUILDING IV, L.C. Agenda Item 1 Page 13 Willrtnt \\ . oravc, \ i-. President \\ilham R. Ilackner Vice President Lan} J I{ardc Vt:c• President U:aua I1 Hull \ ice Pre.,Acni. A i r It 111:1.11 CUWnel & Asst Scatetar% J,Jferc f.aFges \ ice Prestdenr Richard NIJ)Afic \1ce President tirantland F McGee Jr. Vice President Jnse F MaTTero \ ice President Phomas Ne%%bern \ ice President C.'hcrhe Pleas Ill \ ice President l l unuolhr Fivaheth Rahun \'ice Pre;idenr ,'Whonv Dean Rose Jr \ ice President Brelt Shanaman Vice President Michael Shadrach Vlce President Richard C. Smith bice President Scull A. Webb Vice Presuieni IN 'J YFNFSS WHEREOF, 1 hereunto affix my sienanue as M this --- da} of 200 • Harn [ lioltfenuth, Fxc.uu._ Vic,- Presikii, Senetal% k f ieneral Cnun el DISCLOSURE STATEMENT AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 14 Modification of Conditions Application of AutoZone Development Corporation Property, Located at 5221 Indian River Road Property Owner: Land & Building IV, L.C. Members of Property Owner: Mitchell Dunbar Managers of Property Owner: Mitchell; Ryan Dunbar Related Entities to Property Owner: Superior Pawn Company Land & Building. L.C. Land & Building 11, L.C. Land & Building 111. L.C. Land & Building V. L.C. Land & Building VI, LC Land & Buildings. VII, L.L.C. DISCLOSURE STATEMENT AUTOZONE DEVELOPMENT CORPORATION / LAND & BUILDING IV, L.C. Agenda Item 1 Page 15 Item #1 Autozone Development Modification of Conditions 5221 Indian River Road District 1 Centerville February 10, 2010 CONSENT Joseph Strange: The next items we will address are those that are placed on the consent agenda. The Vice Chair will handle this portion of the agenda, and at the end of the consent agenda, we will be looking for a motion. Jay Bernas: Thank you Mr. Chairman. This afternoon we have three items on the consent agenda. The first matter is agenda item 1. This is the application of Autozone Development Corporation /Land & Building IV, L.C. An application of Autozone Development Corporation for a Modification of Conditions approved by City Council on March 28, 2000, and May 24, 2005, on property located at 5221 Indian River Road, District 1, Centerville. Is there a representative here on this application? Welcome. Robert Beamon: Thank you. Mr. Chairman, Mr. Vice Chairman, and members of the Commission, for the record, my name is Robert Beaman. I'm an attorney for the application Autozone Development Corporation. We've had a chance to look at the proposed conditions. They are acceptable and we appreciate being on the consent agenda. Jay Bernas: Thank you. Is there any opposition to this matter being placed on the consent agenda? Hearing none, the Chairman has asked Commissioner Livas to please review this item. Henry Livas: Thank you. The Conditional Change of Zoning from B-2 Community Business District and R-7.5 Residential District to Conditional B-2 Community Business District was approved by City Council on March 28, 2000. The conditions of the 2000 rezoning were later modification by City Council on May 24, 2005, and that modified Conditional Change of Zoning has three proffers. The first proffer required that the site layout, landscaping, and building design be substantially in compliance with the proffered site plan and elevations. The applicant now desires to modify the proffer to allow the construction of an alternative 7,381 square foot retail store. The applicant also requests modification of the third proffer to allow signage in accordance with regulations as established by the City of Virginia Beach's Zoning Ordinance rather than originally proffered. The proposed modifications will not change the uses allowed on the site by the proffers of 2005 Change of Zoning modification. The primary purpose of the current proposal is to modify the site layout and building elevations. This request is approved by staff. Therefore, we have included it on our consent agenda. Jay Bernas: Thank you. I would like to make a motion to approve consent agenda item 1 Item #1 Autozone Development Page 2 Joseph Strange: Do I have a second? Kathy Katsias: Second. Joseph Strange: A motion has been made by Jay Bernas and seconded by Kathy Katsias to put item 1 on the consent agenda. AYE 10 NAY 0 ABS 0 ABSENT 1 ANDERSON ABSENT BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 10-0, the Board has approved item 1 for consent. Joseph Strange: Thank you. In Reply Refer To Our File No. DF -7621 TO: Mark D. Stiles FROM: B. Kay Wilso CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: February 11, 2010 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Autozone Development Corporation The above -referenced conditional zoning application is scheduled to be heard by the City Council on February 23, 2010. 1 have reviewed the subject proffer agreement, dated January 20, 2010 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen Prepared by: Troutman Sanders LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, Virginia 23462 MODIFICATION OF COVENANTS, RESTRICTIONS AND CONDITIONS PROFFERED TO CITY OF VIRGINIA BEACH THIS MODIFICATION OF COVENANTS, RESTRICTIONS AND CONDITIONS PROFFERED TO CITY OF VIRGINIA BEACH (this "Agreement"), made this 7 day of 5""afY , 20g0, between LAND & BUILDING IV, L.C. a Virginia limited liability company, the owner of the subject property ("Grantor"); AUTOZONE DEVELOPMENT CORPORATION, a Nevada corporation, the proposed lessee of the subject property ("AutoZone"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia ("Grantee"); WITNESSETH: WHEREAS, Grantor is the owner of the real property described on Exhibit A attached hereto (the "Property"), which Property is currently zoned Conditional B-2, and is subject to certain recorded covenants, restrictions, and conditions; and WHEREAS, in February of 2000, Grantor's predecessors in interest (The Titus Family Revocable Living Trust) proffered certain covenants, restrictions, and conditions as part of a conditional rezoning, as set forth in the "Proffered Covenants, Restrictions, and Conditions from the Titus Family Revocable Living Trust", dated February 2, 2000, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia (the "Clerk's Office") in Deed Book 4223 at page 1176 (the "Original Proffers"); and WHEREAS, in February of 2005, Grantor amended the Original Proffers as set forth in the "Proffered Covenants, Restrictions and Conditions From Land & Building IV, L.C. to The City of Virginia Beach, a municipal corporation", dated February 14, 2005, and recorded in the Clerk's Office as instrument number 200506080085711 (the "Amended Proffers"). WHEREAS, Grantor desires to develop the Property in a manner that differs from the terms specified in the Original Proffers and the Amended Proffers; and WHEREAS, Grantor desires to replace the covenants, restrictions, and conditions set forth in the Original Proffers and the Amended Proffers with those set forth in this Agreement; and WHEREAS, the conditions set forth in the Original Proffers and Amended Proffers may only be amended or varied by written instrument recorded in the Clerk's Office and executed by the record owner of the Property, provided that said instrument is consented to by the Grantee in writing as GPIN: 1465-47-0414-0000 evidenced by a certified copy of an ordinance or resolution adopted by the governing body of the Grantee, after a public hearing properly advertised pursuant to Section 15.2-2204 of the Code of Virginia, 1950 (as amended), which said ordinance or resolution shall be recorded along with the amendment 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 extraction from the Grantee or its governing body and without any element of compulsion or uid pro �o for zoning, rezoning, site plan, building permit or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property, and hereby covenants and agrees that the terms of this declaration shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. Any prior proffered conditions, including the Original Proffers and Amended Proffers are hereby superseded in their entirety. 2. When developed, the improvements and landscaping on the Property shall be developed in substantial conformance with the site plan entitled "Site Layout Plan, AutoZone #4916, Virginia Beach, Virginia," dated September 2009, and prepared by Burgess & Niple (the "Site Plan"), which site plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 3. When developed, the building located on the Property shall developed in substantial conformance with the colors, materials, and architectural features depicted on the rendering entitled "Drawing CE -1, Color Elevation, AutoZone Store #4916, Virginia Beach, VA," dated January 19, 2010 (the `Building Rendering"), which rendering has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 4. In addition to those uses prohibited by applicable laws, the following uses shall be prohibited on the Property: (a) Eating and drinking establishments with drive-through windows; (b) Greenhouses and plant nurseries; and (c) Grocery stores, carry -out food stores and convenience stores, any of which are not freestanding. 5. Signage installed on the Property shall comply with the requirements set forth in the Virginia Beach Zoning Ordinance and other applicable codes, subject to variances approved by the appropriate authority. 6. 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. Page 2 All references herein 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 modification of proffered covenants, restrictions and conditions is approved by the Grantee. AutoZone joins as a party to this Agreement for the sole purpose of consenting to the terms contained herein to the extent that they are applicable during the term of AutoZone's lease of the Property. The covenants, restrictions and conditions set forth above, having been proffered by the Grantor and allowed and accepted by the Grantee, shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided further that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an 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. 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 Zoning Ordinance or this Agreement, the Grantor shall petition to 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 the foregoing conditions attaching to the zoning of the Subject Property on the map and that the ordinance and the foregoing conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. [Remainder of page intentionally left blank. Separate signature page to follow.] Page 3 LAND & BUILDING IV, L.C., a Virginia limited liability company: /,W-111,220, ism Title:Q� City/County ofV If N&Ib ; Commonwealth/St a of I r The undersigned Notary Public, being duly authorized to acknowledge documents in the aforesaid jurisdiction, hereby certifies and affirms that, on this ZZnd day of �anwtr, 2010 , �t�7-%��t l �- • �(�h b in his/her capacity as of Land & Building IV, L.C., a Virginia limited liability company, executed th foregoing instrument on behalf of the company. He/she is either personally known to me or, if not, produced N 1A as identification. -- iA'r�. Notary Public My commission expires: ?'0,...... , was commissioned as R. Lene' Vosler (p I I 1 � Registration Number: Iq t� 2 '•.•`•'' �N 0���`•L S • Seal: Jim 194254 •'i1 f�VIFKs`' �O , Page 4 AUTOZONE DEVELOPMENT CORPORATION, a Nevada corporation: By:�o Title: Vice •resi y T'-i/e:, Vice President City/County of SA C ; Commonwealth/State of Tj f The undersigned Notary Public, being duly authorized to acl owledge documents in the aforesaid �nsdi ti , hereby certifies and,affirms that, on this �� day of , 20�, Brian L. M R � Wo BI OU in his/her capacity as Vice of WWI AutoZone Development Corporation, a Nevada corporation, executed the foregoing i strument on behalf of the company. He/she is either personally known to me or, if not, produced as identification. Public My commission expires: / j O /,3 Registration Number: Seal: @-..° STATE if OF '. TENNESSEF g N MY B FM Ic ,rl `0`",�`� f rt. Page 5 EXHIBIT A ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND, WITH THE BUILDINGS AND IMPROVEMENTS THEREON, LYING, SITUATE AND BEING IN THE CITY OF VIRGINIA BEACH, VIRGINIA, AND BEING KNOWN, NUMBERED AND DESIGNATED AS PARCEL 3, AS SHOWN ON THAT CERTAIN PLAT ENTITLED, "RESUBDIVISION OF PARCEL `2' (M.B. 96, PAGE 7, SHEET 2) AND PROPERTY OF TROY A. TITUS (M.B. 131 PAGE, 29), KEMPSVILLE BOROUGH, VIRGINIA BEACH, VIRGINIA," WHICH SAID PLAT IS DULY RECORDED IN THE CLERK'S OFFICE OF THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, VIRGINIA, IN MAP BOOK 258, AT PAGES 23 AND 24. IT BEING THE SAME PROPERTY CONVEYED TO GRANTOR BY DEED OF A.J.R. LIMITED PARTNERSHIP, L.L.P., DATED NOVEMBER 5, 2003, AND DULY OF RECORD IN THE CLERK'S OFFICE AFORESAID AS INSTRUMENT NUMBER 200312160208002. 392679v3 Page 6 L. APPOINTMENTS HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION SENIOR SERVICES OF SOUTHEASTERN VIRGINIA THE PLANNING COUNCIL SOCIAL SERVICES BOARD VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT ■ ■ FY 2010-2011 Budget Schedule ' Date Time Event Location ■ Mar. 23 6:00 PM City Manager Presents Budget City Council Chamber ■ ■ Apr. 8 tba Workshop City Council Conference Room Apr. 13 tba Workshop City Council Conference Room ■ ■ Apr. 20 tba Workshop City Council Conference Room Apr. 22 6:OOPM Public Hearing Tallwood High School ■ Apr. 27 tba Workshop City Council Conference Room ■ Apr. 27 6:00 PM Public Hearing City Council Chamber May 4 tba Reconciliation Workshop City Council Conference Room ■ ■ May 11 6:00 PM Adoption City Council Chamber ■ (tba: Where not indicated, time will be announced) 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 02/23/2010gw www.vb og_v.com CITY OF VIRGINIA BEACH CITY COUNCIL BRIEFING: SUMMARY OF COUNCIL ACTIONS Philip Shucet, DATE: 2/9/2010 HAMPTON ROADS TRANSIT — Interim PAGE: 1 D S Federal Grant and Right -of -Way President/CEO, E D H E V W AGENDA D S 1 E J S U A I ITEM # SUBJECT MOTION VOTE A T E D N O S H C L W V E Z Y L N O R A S O 1 P E E E E M I N O O S H L R Y S S N T N D I/A CITY COUNCIL BRIEFING: Philip Shucet, HAMPTON ROADS TRANSIT — Interim Federal Grant and Right -of -Way President/CEO, Acquisition HRT B STATE BUDGET ISSUES Dr. James Merrill, School Superintendent II/A CITY MANAGER'S BRIEFINGS PRINCESS ANNE COUNTY TRAINING Mark Reed, SCHOOL/Union Kempsville High School Historical Museum Resources Coordinator, Museums and Cultural Arts B 2009 CRIME STATISTICS Chief A.M. Jacocks, Police C CITY CODE SECTION 23-50 — Andrew Enforcement re Hazardous Friedman, Trees/Overgrown Grass Director, Housing and Neighborhood Preservation III/IVNNI CERTIFICATE OF CLOSED SESSION CERTIFIED 10-0 Y Y Y Y Y Y Y Y - Y Y E F-1 MINUTES — January 26, 2010 APPROVED 10-0 Y Y Y Y Y Y Y Y - Y Y February 2, 2010 G/H/I/I PUBLIC HEARINGS: 2 CONVEYANCE OF EXCESS NO SPEAKERS PROPERTY Arctic Avenue near 29g' Street 3 ELECTION POLLING LOCATION NO SPEAKERS CHANGE Windsor Oaks Precinct CITY OF VIRGINIA BEACH Ordinances to AMEND the City Code: ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y SUMMARY OF COUNCIL ACTIONS Y Y CONSENT DATE: 2/9/2010 § 10-1 re Polling location of Windsor Oaks PAGE: 2 Precinct D S AGENDA § 2346.2 re hazardous substance E D Y H Y E Y V W Y ITEM # SUBJECT MOTION VOTE D S I E J S U A I A T E D N O S H C L W Y V E Z Y L N O R A S O I P E E E E M 1 N O O S H L R Y S S N T N D J/La Ordinances to AMEND the City Code: ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y Y Y CONSENT § 10-1 re Polling location of Windsor Oaks Precinct b § 2346.2 re hazardous substance ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y - Y Y CONSENT 2/a Ordinance to CONFIRM Declaration of ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y - Y Y a Local Emergency the January 2010 CONSENT winter storm 3 Resolution to EXECUTE Memo of ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y Y Y Agreement between City/School Board re CONSENT Princess Anne County Training School Museum. 4 Ordinance DECLARING City property on ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y Y Y Arctic Ave EXCESS/AUTHORIZING CONSENT documents to convey same to HRSD 5 Resolution REQUESTING Governor to ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y - Y Y activate emergency/relief resources for CONSENT homeowners impacted by "Chinese Drywall' 6 Ordinance to AUTHORIZE encroachment ADOPTED, 10-0 Y Y Y Y Y Y Y Y Y Y into a portion of City -owned r -o -w for CONDITIONED, STEVEN G. ROSE into Pike Inlet at 325 BY CONSENT Teal Crescent (DISTRICT 7 — PRINCESS ANNE) 7/a Ordinances to ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y Y Y ACCEPT/APPROPRIATE: CONSENT $115,079 in excess Four -tor -Life program funds for EMS b $997,400 from Special Revenue / $173,200 ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y Y Y for Fire Training Center improvements — CONSENT Phase III c $162,482 to Fire Training Center ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y - Y Y Improvements — Phase III CONSENT CITY OF VIRGINIA BEACH $1,500,000 from Homeland Security of ADOPTED, BY 10-0 Y Y Y Y Y Y SUMMARY OF COUNCIL ACTIONS Y - Y Y FEMA VA -TF 2 Urban Search and Rescue CONSENT DATE: 2/9/2010 PAGE: 3 Team to Haiti D S E D H Resolution by City/School Bd E 10-0 V AGENDA D S I Y E J S U A ITEM # SUBJECT MOTION VOTE A T E D N O S H C V E Z Y L N O R A I P E E E E M I N K/1 S H L R Y S S N T d $1,500,000 from Homeland Security of ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y - Y Y FEMA VA -TF 2 Urban Search and Rescue CONSENT Team to Haiti ADDED Resolution by City/School Bd ADDED/ 10-0 Y Y Y Y Y Y Y Y Y Y SUPPORTING freeze of Local Composite ADOPTED BY Index FY2011 CONSENT K/1 MARK W. /LAUREL N. LLOBELL for APPROVED/ 9-0 Y Y Y Y Y Y A Y - Y Y Nonconforming Structure garage CONDITIONED, B apartment at 112 69'J' Street DISTRICT 5 - BY CONSENT S LYNNHAVEN DISTRICT T A I N E D 2 LAURIE RICHARDS — GREEN DENIED 10-0 Y Y Y Y Y Y Y Y Y Y PARROT GRILLE/KAY BURTON Expansion of a Nonconforming Structure to allow outdoor patio dining at 4494 Lookout Road DISTRICT 4 — BAYSIDE DISTRICT 3 BRUCE/VIRGINIA RADER Expansion APPROVED/ 10-0 Y Y Y Y Y Y Y Y Y Y of a Nonconforming addition at 307 55T" CONDITIONED, Street DISTRICT 5 - LYNNHAVEN BY CONSENT DISTRICT 4 THE REBKEE COMPANY/JONES DEFERRED BY 10-0 Y Y Y Y Y Y Y Y Y Y REAL ESTATE INVESTMENT CONSENT TO COMPANY, LLC for Modification of 2/23/10 Proffers (approved September 8, 2009) for change in building site layout at 2236- 2240 General Booth Boulevard DISTRICT 7 — PRINCESS ANNE 5/a. REED ENTERPRISES auto repair shop APPROVED AS 10-0 Y Y Y Y Y Y Y Y Y Y at Princess Anne Road/South Plaza Trail PROFFERED/ DISTRICT 2 — KEMPSVILLE CONDITIONED Modification of Proffers/adding conditions (approved February 23, 1999) b CUP CITY OF VIRGINIA BEACH BONNEY G. BRIGHT at Princess APPROVED/ 9-0 Y Y Y Y Y Y A Y SUMMARY OF COUNCIL ACTIONS Y Y Anne/Pocahontas Club Roads DISTRICT 7 CONDITIONED, DATE: 2/9/2010 B — PRINCESS ANNE BY CONSENT PAGE: 4 S D S AGENDA Closure of portion of Pocahontas Club E D H E V W ITEM # SUBJECT MOTION VOTE D S I Road E J S U A I A T E D N O S H C L W V E Z Y L N O R A S O I P E E E E M I N O O S H L R Y S S N T N D 6/a BONNEY G. BRIGHT at Princess APPROVED/ 9-0 Y Y Y Y Y Y A Y - Y Y Anne/Pocahontas Club Roads DISTRICT 7 CONDITIONED, B — PRINCESS ANNE BY CONSENT S T Closure of portion of Pocahontas Club A Road I N b CUP expand excavation at borrow pit E D 7 TUEE KNOW HIM NEW BIRTH FULL ALLOWED 10-0 Y Y Y Y Y Y Y Y - Y Y GOSPEL MINISTRIES/J.G. HORTON WITHDRAWAL, & SON CONST CUP re church at BY CONSENT 5109-5111 Witchduck Court DISTRICT 4 — BAYSIDE DISTRICT 8 JC'S PLACED. E. BONNEY CUP re APPROVED/ 10-0 Y Y Y Y Y Y Y Y Y Y indoor Teen Club at 596 Princess Anne CONDITIONED, Road DISTRICT 7 — PRINCESS BY CONSENT ANNE 9/a CITY re CZO: ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y Y Y CONSENT AMEND §111 re definition of adult bookstores b AMEND §1I1/§40I/ADD §209.1 re ADOPTED, BY 10-0 Y Y Y Y Y Y Y Y Y Y "Farm Winery" CONSENT c MEND § l I l/ADD §217 re monument DEFERRED 10-0 Y Y Y Y Y Y Y Y - Y Y /electronic display signs INDEFINITELY, BY CONSENT M APPOINTMENTS RESCHEDULED B Y C O N S E N S U S HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION THE PLANNING COUNCIL VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) ADDED DEFERRED COMPENSATION BOARD Appointed 10-0 Y Y Y Y Y Y Y Y Y Y Ken Stolle, 3 Year Term 1/1/10-12/31/12 N/O/P ADJOURNMENT: 7:OOPM PUBLIC COMMENTS EIGHT Non -Agenda Items SPEAKERS 1•n127•1nn?,r