No preview available
HomeMy WebLinkAboutDECEMBER 13, 2011 AGENDACITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR WILLIAM D. SESSOMS, JR., At -Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 GLENN R. DA VIS, Rose Hall - District 3 WILLIAM R. DeST EPH, At -Large HARRY E. DIE7.EL, Kempsville - District 2 ROBERT M DYER, Centerville - District 1 BARBARA M HENLEY, Princess Anne - District 7 JOHN D. MOSS, At -Large 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 A7TORNI, Y- MARK D. STILES CITY ASSESSOR - JERALD D. BANAGAN CITYAUDITOR-LYNDONS. REMIAS CITY CLERK - RUTH HODGES FRASER, MMC CITY COUNCIL AGENDA 13 DECEMBER 2011 I. CITY COUNCIL BRIEFING -Conference Room - A. PROCESS IMPROVEMENT STEERING COMMITTEE Tuck Bowie, Chairman II. CITY MANAGER'S BRIEFINGS CITY HALL BUILD 2401 COURTHOUSE DF VIRGINIA BEACH, VIRGINIA 234564 PHONE: (757) 385-5 FAX (75 7) 385-_ E- MAIL: Ctycncl@vbgov. A. LYNNHAVEN SGA MASTER PLAN Paul Ostergaard, Urban Design Associates B. INDEPENDENT AUDITOR REPORT OF FY 2012 FINANCIAL RESULTS Patricia Phillips, Director — Finance C. INTERIM FINANCIAL STATEMENT Patricia Phillips, Director — Finance 2:30 PM III. CITY and SCHOOL REVENUE SHARING — (City Council Discussion and Direction) IV. CITY COUNCIL COMMENTS V. CITY COUNCIL AGENDA REVIEW VI. INFORMAL SESSION -Conference Room - A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION 5:00 PM VII. FORMAL SESSION - City Council Chamber - 6:00 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. INVOCATION: Chaplain David Cochran Virginia Beach Police Department C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS G. FORMAL SESSION AGENDA H. BID OPENING 1. Navigational Aid Tower at Rudee Inlet ("Jetty Light 4") December 6, 2011 I. PUBLIC HEARING 1. Lease of City Property - Murden's Corner — Telecommunications facilities J. PUBLIC COMMENT 1. CONVENTION CENTER HEADQUARTERS HOTEL K. CONSENT AGENDA L. ORDINANCES/RESOLUTION 1. Ordinance to RE -ADOPT the Southside Hampton Roads Hazard Mitigation Plan to reduce monitoring natural disaster losses M. 2. Ordinances to AUTHORIZE the City Manager to EXECUTE Leases: a. Richmond 20MHz, LLC, d/b/a/ NTELOS re wireless telecommunications at Murden's Corner b. WeatherFlow, Inc. re navigational aid tower ("Jetty Light 4") at Rudee Inlet 3. Resolution to DIRECT the City Manager and the Consolidated Benefits Office Staff to implement the Health Risk Incentive program as part of the Health Plan offered to City employees for Plan Year 2013 PLANNING Variance to §4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for KEITH P. and CHERI N. CARL re an existing lot at 4824 Lake Bradford Lane. DISTRICT 4 - BAYSIDE DISTRICT RECOMMENDATION APPROVAL 2. Application of the CITY OF VIRGINIA BEACH for a Street Closure at 408 Laskin Road. DISTRICT 6 - BEACH DISTRICT RECOMMENDATION DEFERRAL 3. Application of ATLANTIC DEVELOPMENT ASSOCIATES, LLC for a Nonconforming Use re a second single-family dwelling at 8004 Atlantic Avenue. DISTRICT 5 - LYNNHAVEN DISTRICT RECOMMENDATION APPROVAL 4. Application of ASHVILLE PARK, LLC/ATC REALTY SIXTEEN, INC. for the Modification of Proffers 11, 18,19 and 30 (approved on a Conditional Change of Zoning by City Council on May 10, 2005) at Princess Anne Road Ashville Park, Village B. DISTRICT 7 - PRINCESS ANNE DISTRICT RECOMMENDATION :":• Application of SENTARA VILLAGE — VIRGINIA BEACH/SENTARA LIFE CARE CORPORATION for a Modification of Conditional Use Permit (approved by City Council on November 13, 1990 and August 25, 1992) to ADD hospice services at 3751 Sentara Way. DISTRICT 3 - ROSE HALL DISTRICT RECOMMENDATION APPROVAL 6. Application of NEW TODAY BUS, INC./NEWTOWN BAKER SC for a Conditional Use Permit re a bus terminal at 649 Newtown Road, Suite 101. DISTRICT 2 - KEMPSVILLE DISTRICT RECOMMENDATION APPROVAL 7. Applications of AUTO PROPERTIES, LLC/KH REAL ESTATE, LLC at 326 and 330 Malibu Drive: LYNNHAVEN DISTRICT a. Conditional Change of Zoning from R-7.5 to Conditional B-2 b. Conditional Use Permit re motor vehicle sales and service expansion RECOMMENDATION N. APPOINTMENTS BIKEWAYS AND TRAILS ADVISORY COMMITTEE COMMUNITY SERVICES BOARD DEFERRD COMPENSATION BOARD HEALTH SERVICES ADVISORY BOARD PARKS AND RECREATION COMMISSION PLANNING COMMISSION O. UNFINISHED BUSINESS P. NEW BUSINESS Q. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 CITY COUNCIL SESSION SCHEDULE Date Time January 3, 2012 TBA Agenda 12/13/2011 gw Meetin_g Back to the usual schedule DENIAL I. CITY COUNCIL BRIEFING -Conference Room- 2:30 PM A. PROCESS IMPROVEMENT STEERING COMMITTEE Tuck Bowie, Chairman II. CITY MANAGER'S BRIEFINGS A. LYNNHAVEN SGA MASTER PLAN Paul Ostergaard, Urban Design Associates B. INDEPENDENT AUDITOR REPORT OF FY 2012 FINANCIAL RESULTS Patricia Phillips, Director — Finance C. INTERIM FINANCIAL STATEMENT Patricia Phillips, Director — Finance III. CITY and SCHOOL REVENUE SHARING — (City Council Discussion and Direction) IV. CITY COUNCIL COMMENTS V. CITY COUNCIL AGENDA REVIEW VI. INFORMAL SESSION -Conference Room- 5:00 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VII. FORMAL SESSION - City Council Chamber - 6:00 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. INVOCATION: Chaplain David Cochran Virginia Beach Police Department 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 December 6, 2011 G. FORMAL SESSION AGENDA H. BID OPENING 1. Navigational Aid Tower at Rudee Inlet ("Jetty Light 4") I. PUBLIC HEARING Lease of City Property - Murden's Corner — Telecommunications facilities PUBLIC COMMENT CONVENTION CENTER HEADQUARTERS HOTEL PUBLIC HEARING LEASE OF CITY PROPERTY The Virginia Beach City Council will hold a PUBLIC HEARING on the proposed leasing of City -owned property on Tuesday, December 13, 2011 at 6:00 p.m. in the Council Chamber of the City Hall Building (Building #1) at the Virginia Beach Municipal Center. The purpose of this hearing will be to obtain public comment on the City's proposal to lease the following property:. Space on a City -Owned Navigational Aid Tower ("Jetty Light 4") Located on the North Side of Rudee Inlet Any questions concerning this matter should be directed to the Department of Public Works - Facilities Management Office, Room 228, Building 18, at the Municipal Center. The Facilities Management Office telephone number is (757) 385-5659. If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385- 4303; 864303; Hearing impaired, call TDD 711 (TDD - Telephone Device for the Deaf). Qyl Ruth Hodges Fraser, MMC City Clerk BEACON: Dec. 4, 2011 NOTICE OF PUBLIC HEARING LEASE OF CITY PROPERTY On Tuesday, December 13, 2011, at 6:00 p.m., in the Council Chamber of the City Hall Building, 2401 Courthouse Drive, Virginia Beach, Virginia, the Virginia Beach City Council will hold a PUBLIC HEARING concerning the proposed lease of a portion of City property at Murden's Corner (GPIN 1494-69-9058) for the purpose of constructing, maintaining and operating wireless telecommunications facilities operated by Richmond 20MHz, LLC, d/b/a NTelos. If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303. Hearing Impaired call Virginia Relay at 1-800-828-1120. Any questions concerning this matter should be directed to the Cit Attorney's Office at (757) 5-4531. Ruth Hodges Fras City Clerk K. CONSENT AGENDA L. ORDINANCES/RESOLUTION 1. Ordinance to RE -ADOPT the Southside Hampton Roads Hazard Mitigation Plan to reduce monitoring natural disaster losses 2. Ordinances to AUTHORIZE the City Manager to EXECUTE Leases: a. Richmond 20MHz, LLC, d/b/a/ NTELOS re wireless telecommunications at Murden's Corner b. WeatherFlow, Inc. re navigational aid tower ("Jetty Light 4") at Rudee Inlet 3. Resolution to DIRECT the City Manager and the Consolidated Benefits Office Staff to implement the Health Risk Incentive program as part of the Health Plan offered to City employees for Plan Year 2013 « el :.1 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Re -Adopt the Southside Hampton Roads Hazard Mitigation Plan MEETING DATE: December 13, 2011 ■ Background: The Federal Emergency Management Agency (FEMA) requires jurisdictions to have an approved and adopted Hazard Mitigation Plan, which must be updated on a five-year cycle in order to continue grant assistance eligibility under the Hazard Mitigation Program (HMGP). In 2006, the City of Virginia Beach and several other South Hampton Roads jurisdictions obtained a grant to fund the development of the Southside Hazard Mitigation Plan which is currently due for re -adoption. In 2011 the City, along with the other jurisdictions associated with this plan, obtained a grant administered by the Hampton Roads Planning District Commission (HRPDC) to update the South Hampton Roads Hazard Mitigation Plan. The plan has been updated and deemed approvable by the Virginia Department of Emergency Management (VDEM) and FEMA. The final step is the formal adoption of the plan by City Council. ■ Considerations: The intent of the South Hampton Roads Hazard Mitigation Plan is to provide planning information to assist the City in understanding its vulnerability to natural hazards and to out outline strategies that might be used locally and regionally to mitigate the impacts of natural disasters. This plan also serves to meet eligibility requirements for the City to seek certain types of grant support for mitigation projects. Without an approved plan, there is no access to HMGP grant monies. ■ Public Information: Public information will be provided through the normal Council agenda process. ■ Recommendations: Adopt Ordinance ■ Attachments: Ordinance and Hazard Mitigation Plan Abstract Recommended Action: Approval Submitting Department/Agency: Fire Department/Emergency Management Office 7KC P, City Manager: 5 1 AN ORDINANCE TO RE -ADOPT THE SOUTHSIDE 2 HAMPTON ROADS HAZARD MITIGATION PLAN 3 4 WHEREAS, in an effort to reduce the Nation's mounting natural disaster losses, the 5 U.S. Congress passed the Disaster Mitigation Act of 2000 that requires, in part, that state 6 and local governments develop a hazard mitigation plan in order to remain eligible for pre - 7 and post -disaster mitigation funding; 8 9 WHEREAS, the City of Virginia Beach sponsored the development of a regional 10 hazard mitigation plan in 2006; 11 12 WHEREAS, the regional mitigation plan will meet all applicable Federal regulations 13 per the Disaster Mitigation Act of 2000 and local planning requirements established by the 14 Federal Emergency Management Agency (FEMA), as well as local planning requirements 15 for hazard mitigation required by the Virginia Department of Emergency Management; 16 17 WHEREAS, a FEMA -approved mitigation plan must be re -adopted by the local 18 governing bodies every five years for local communities to remain eligible for future grant 19 funds made available through FEMA's Pre -Disaster Mitigation (PDM) program and Hazard 20 Mitigation Grant Program (HMGP); 21 22 WHEREAS, in a letter dated November 15, 2011, FEMA provided notice that the 23 Southside Hampton Roads Hazard Mitigation Plan is "approvable" pending each 24 participating jurisdiction's approval of that portion of the overall plan that affects them. 25 26 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 27 VIRGINIA BEACH, VIRGINIA: 28 29 That after the required five (5) year review, the Southside Hampton Roads Hazard 30 Mitigation Plan is hereby approved and re -adopted for the City of Virginia Beach. Adopted by the Council of the City of Virginia Beach, Virginia this day of 2011. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: G Emergency Management Office CA12086 R-1 December 2, 2011 �� k7FIR - . City of Virginia Beach Hazard Mitigation Plan — Abstract INTRODUCTION The following is an abstract of the 2011 update of the Southside Hampton Roads Hazard Mitigation Plan. It provides a brief overview of the basic components of the plan and the supporting analsyis of our community's vulnerability to natural hazards. The plan also features potential mitigation strategies the City may want to explore to mediate the impacts of diasters. PURPOSE This plan satisfies the requirements of the Disaster Mitigation Act (DMA) 2000, and is a collective effort between Isle of Wight County, Norfolk, Portsmouth, Smithfield, Suffolk, Virginia Beach, and Windsor. It identifies the region's risk of natural hazards (i.e., hurricanes, tornados, lightning storms, etc.), highlights each jurisdiction's capabilities and vulnerabilities, and details strategies to remedy shortfalls and further prepare the community. This plan is a required for future mitigation funding eligibility. The spirit of the DMA 2000 is not to impose a federal mandate on state and local governments, but rather to encourage proactive steps toward protecting communities — not only through post -disaster mitigation activities, but more importantly, through pre -disaster mitigation planning in all areas of government. Funding is provided by FEMA and VDEM through Hazard Mitigation Grant Program (HMGP) funds. PLANNING METHODOLOGY The methodology for this plan is defined by FEMA requirements and is meant to provide a comprehenive and quantitative assessment of mitigation issues. A key element of the planning process is the establishment of a planning team. The planning team then identifies those hazards that might impact the community. The history and relative risks from these hazards are quantified in relation to frequency, impact, and criticality. The planning team then looks at community vulnerability in terms of the physical properties at risk, as well as the population. From this analysis the hazards are ranked and defined. Additional steps include looking at the capabilities for the management of risk, as well as mitigation strategies that the community may want to consider. South Hamtpon Roads Hazard Rankings CRITICAL HAZARDS - HIGH RISK CRITICAL HAZARDS — MODERATE RISK CRITICAL HAZARDS - LOW RISK Sea Level Rise and Land Subsidence Hazardous Materials Incidents Urban Fires Flood (100 -Year) Tornadoes Wildfires Hurricanes and Tropical Storms Severe Thunderstorms and Hail Drought Winter Storms and Nor'easters Lightning Dam Failures Floods (Storm Surge) Shoreline Erosion Earthquake Extreme Heat Radiolocial Threats Mosquito Borne Disease Terrorism Biological Threats MITIGATION GOALS The analysis and consideration of the risk associated with those hazards became the basis for the development of various mitigation goals for the region and the City of Virginia Beach. The following are the regional strategies that are identifed to create jurisdiction -specific goals. 2011 South Hampton Roads Mitigation Goals Goal 1: Protect critical facilities and infrastructure, including bridges, utilities, and evacuation routes, from high risk hazards. Goal 2: Conduct public education programs to protect lives and property. Goal 3: Protect property, including neighborhoods, homes, and businesses. Goal 4: Integrate mitigation concepts into local and regional government actions. Goal 5: Identify opportunities to implement green environmental -friendly and energy- efficient technologies as part of the mitigation strategy. SUMMARY This plan has been developed to meet FEMA requirements for mitigation plan development and is required in order to allow the City to seek assistance under the Hazard Mitigation Grant Program after major disasters. Beyond this requirement, the plan ensures the City's comprehensive emergency planning and considers mitigation opportunities to prepare for and lessen the impact of disasters. These materials further provide an analysis of the relative risks and potential impacts associated with natural disasters and serve as a planning reference in understanding Virginia Beach's specific risks and hazards. Of note in this update is the inclusion of Sea Level Rising as a new hazard to integrate into our planning efforts. This plan will provide a focal point for the integration of mitigation strategies into the overall City emergency preparedness program. r��eeic rS y �c. F taj CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Ordinance Authorizing The City Manager To Execute a Lease Between Richmond 20MHz, LLC, d/b/a NTELOS and the City for Certain Property to be Used for Wireless Telecommunications Facilities MEETING DATE: December 13, 2011 ■ Background: On October 11, 2011, the City Council adopted an ordinance seeking bids for the lease of a portion of City property located at Murden's Corner, near the 2500 block of Holland Road, for purposes of constructing, operating and maintaining wireless telecommunications facilities. The property has no street address. The site is currently occupied by a Dominion Power high-voltage transmission line. One bid, that of Richmond 20MHz, LLC, d/b/a NTELOS, was received. The subject ordinance awards the lease to NTELOS. ■ Considerations: The proposed lease is for a small (20' X 35) area of the property to house necessary equipment, together with necessary access and maintenance easements. The antenna array itself will be located on an existing Dominion Power high-voltage transmission tower, such that no separate communications tower need be constructed. No conditional use permit would be required, as the proposed equipment would meet all requirements of City Zoning Ordinance Section 232 Q), which allows wireless equipment to be located on electrical transmission towers without a use permit under certain conditions. The proposed lease is for a term of ten years, with two five-year renewal terms, and therefore was required to be the subject of a bid process. The first year's rent is $6,955.64, with annual increases of 3%. Other of the material terms are set forth in the attached Summary of Material Terms. ■ Public Information: The public hearing on the proposed lease has been advertised in accordance with applicable requirements of law. ■ Alternatives: The City Council may either approve or disapprove the proposed lease. Given that the proposed wireless facilities would not significantly change the overall appearance of the site and the fact that the rent would provide income from the property not otherwise possible, the Staff recommends approval of the lease. ■ Recommendations: Adoption of ordinance. ■ Attachments: Ordinance, Summary of Material Terms and Location Map. A full copy of the lease is available in the City Attorney's Office. Recommended Action: Approval Submitting Department/Agency: Public Works/ YK City Manager: %k-,-bQeol FaciliAlanagement 1 AN ORDINANCE TO AWARD A LEASE OF A PORTION OF 2 THE CITY PROPERTY LOCATED AT MURDEN'S CORNER 3 (GPIN 1494-69-9058) FOR THE PURPOSE OF 4 CONSTRUCTING, MAINTAINING AND OPERATING 5 WIRELESS TELECOMMUNICATIONS FACILITIES 6 7 WHEREAS, the Clerk has laid before the City Council an ordinance adopted 8 October 11, 2011, providing for bids for a lease of a portion of the City property located at 9 Murden's Corner (GPIN 1494-69-9058), in the Princess Anne District, for the purpose of 10 constructing, maintaining and operating wireless telecommunications facilities, together 11 with a certificate of due publication of the same once per week for two successive weeks in 12 a newspaper of general circulation in the City, in the manner prescribed by law; and 13 14 WHEREAS, Richmond 20MHz, d/b/a NTelos Wireless, has submitted the highest 15 bid for the award of such lease, which bid was delivered to the Mayor in open session on 16 the day and hour named in the advertisement and was read aloud; and 17 18 WHEREAS, the Mayor then and there inquired for any further bids, and none were 19 submitted; and 20 21 WHEREAS, in the opinion of the City Council, it is expedient and in the best 22 interests of the City that the said lease should be granted to Richmond 20MHz, d/b/a 23 NTelos Wireless, 24 25 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 26 VIRGINIA BEACH, VIRGINIA: 27 28 1. That the bid of Richmond 20MHz, d/b/a NTelos Wireless be, and hereby is, 29 accepted, and that the aforesaid lease be, and hereby is, awarded to Richmond 20MHz, 30 d/b/a NTelos Wireless, upon the conditions set forth in such lease. 31 32 2. That the name of Richmond 20MHz, d/b/a NTelos Wireless shall be inserted 33 in the aforesaid lease, and that the City Manager shall execute, on behalf of the City, the 34 aforesaid lease entitled "Ground Lease Agreement (Murden's Corner)), City of Virginia 35 Beach, Lessor and Richmond 20MHz, d/b/a NTelos (Lessee) a summary of the material 36 terms of which is hereto attached and a copy of which is on file in the Office of the City 37 Attorney. 38 39 40 Adopted by the Council of the City of Virginia Beach, Virginia, on the day of 41 .2011. APPROVED AS TO CONTENT Public Works -acilities anagement CA -12060 R-1 November 28, 2011 APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office NTELOS LEASE AGREEMENT Summary of Material Terms Location: Murden's Corner, near 2500 Block of Holland Road (Princess Anne District) Use: Personal wireless telecommunications facilities consisting of antenna array on existing high-voltage transmission tower and equipment cabinet housing associated equipment Lessee: Richmond 20MHz, LLC, d/b/a/ NTELOS Leased Area: 20'x 35' leased area, together with necessary ingress/egress easements Term: Ten years with two 5 -year options to renew Rent: $6,955.64 for the first year; 3% annual increase after 1st year Other: Lessee's operation not to interfere with City functions; Lessee must correct interference immediately or, if not correctable, lease may be terminated within 30 days Lessee may expand, etc. building only with City's consent Lessee required to comply with all terms of conditional use permit Lessee required to carry $1,000,000 comprehensive insurance, plus other insurances Lessee required to indemnify City for injuries, etc., caused by Lessee's negligence, etc. Lessee must remove antennas and building and restore premises to original condition within 90 days of expiration or termination of lease Lease terminable if property is taken for public use; City not liable for any compensation to lessee 11/30/2011 Location Map CITY OF VIRGINIA BEACH AGENDA ITEM Item: An Ordinance Authorizing the City Manager to Execute a 40 -Year Lease with WeatherFlow, Inc. for City -Owned Navigational Aid Tower ("Jetty Light 4") Located on the North Side of Rudee Inlet Meeting Date: December 13, 2011 ■ Background: The City of Virginia Beach (the "City") owns the walkway, jetty, platform and tower, commonly known as "Jetty Light 4", located on the North Side of Rudee Inlet and extending 25' from the end of the breakwater. Subject to a lease between the City and the U.S. Coast Guard ("USCG"), the USCG owns and maintains the lighting, power supply equipment and dayboard located on Jetty Light 4. WeatherFlow, Inc. ("WeatherFlow") is a California-based company that owns and maintains weather stations throughout the U.S., and provides the data it collects to the USCG and various other businesses and government entities. WeatherFlow desires to attach weather data collection equipment onto the City -owned tower portion of Jetty Light 4. ■ Considerations: The USCG endorses this project and has encouraged the City to cooperate. The City will benefit by having access to the data collected. Either party may terminate on 30 days' advance written notice to the other party. Because this proposed lease is for a term longer than five (5) years, a request for bids was advertised on November 27, 2011 and December 4, 2011, with responses due on December 12, 2011. The bids will be opened on December 13, 2011, and if there are multiple bids, the Council action will be deferred until the bids can be evaluated and the lease will be awarded at a later date. ■ Public Information: The bid request was advertised in the newspaper once per week for two successive weeks, and the public hearing to award the bid was advertised once. ■ Recommendations: Adoption of Ordinance ■ Attachments: Ordinance, Summary of Terms, Location Maps (2) Recommended Action: Adoption of Ordinance Submitting Department/Agency: Public Works / Operations Management City Manager. 5 . 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A 40 -YEAR LEASE 3 WITH WEATHERFLOW, INC. FOR CITY - 4 OWNED NAVIGATIONAL AID TOWER ("JETTY 5 LIGHT 4") LOCATED ON THE NORTH SIDE OF 6 RUDEE INLET 7 8 WHEREAS, the City of Virginia Beach (the "City") owns a navigational aid tower 9 commonly known as "Jetty Light 4" located on the North Side of Rudee Inlet; 10 11 WHEREAS, WeatherFlow, Inc. ("WeatherFlow") desires to enter into a lease 12 agreement for use of Jetty Light 4 for the purpose of attaching, maintaining and operating 13 weather data gathering equipment; and 14 15 WHEREAS, WeatherFlow will allow the City access to its weather collection data at 16 no charge, which will provide a useful resource to the City. 17 18 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 21 That the City Manager is hereby authorized to execute a lease for a term of forty 22 (40) years, between WeatherFlow, Inc. and the City of Virginia Beach, in accordance with 23 the Summary of Terms attached hereto as Exhibit A, and made a part hereof, and such 24 other terms and conditions deemed necessary and sufficient by the City Manager and in a 25 form deemed satisfactory to the City Attorney. 26 27 Adopted by the Council of the City of Virginia Beach, Virginia, on the day of 28 , 2011. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Public Wor /Operations City Attorney Manageme f,.i CA11960 \\vbgov.com\DFS1 Applications\CityLawProd\cycom32\W pdocs\D028\P013\00049091.DOC R-1 December 2, 2011 EXHIBIT A SUMMARY OF TERMS LEASE TO WEATHERFLOW, INC. LESSOR: City of Virginia Beach ("City") LESSEE: WeatherFlow, Inc. ("WeatherFlow") PROPERTY: Space on the navigational aid tower, commonly known as "Jetty Light 4", owned by the City and located on the North Side of Rudee Inlet TERM: Forty (40) years RENT: None. WeatherFlow will provide the City with access to its weather data at no charge to the City RIGHTS AND RESPONSIBILITIES OF LESSEE: • Provide City with access to WeatherFlow's data using WeatherFlow's web -based applications at no charge to the City. • Purchase and maintain workers' compensation and employers liability insurance in the minimum amount of $500,000 each accident, commercial general liability and professional liability insurance in the minimum amount of $2,000,000 each. • Indemnify City from liability for injury, loss, accident or actual damage to any person or property. RIGHTS AND RESPONSIBILITIES OF LESSOR: • Allow WeatherFlow access to the site upon 24 -hours' advance written notice from WeatherFlow. WeatherFlow data is for City use only; City may not republish or redistribute data without WeatherFlow's written consent. TERMINATION: • Either party may terminate the lease upon thirty (30) days' advance written notice to the other party. �v <s � CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Offering Direction to the City Manager Regarding the City's Health Care Offerings for Plan Year 2013 MEETING DATE: December 13, 2011 ■ Background: The City provides access to health insurance coverage to its employees and retirees who retire under the Virginia Retirement System. The cost of providing health insurance coverage has continued to rise and is expected to significantly increase in the upcoming years. Our costs are impacted by the health of City employees. It is the City's goal to improve the health of City employees, improve workplace productivity and reduce the rising cost of health insurance coverage. To that end, City and School staff have recommended implementation of a health risk incentive program in coordination with the health insurance coverage to achieve these goals. This resolution directs the City Manager to work with Consolidated Benefits Office staff to implement the health risk incentive program as part of the health insurance plan offered to City employees. ■ Considerations: City Council has been briefed on the scope of the health risk incentive program. This program offers employees an incentive if they voluntarily undergo a health risk assessment to review the following risk factors: (1) tobacco use; (2) exercise frequency; (3) blood pressure; (4) cholesterol; and (5) body mass index, and follow up with a health coach as recommended. ■ Public Information: Public information will be provided through normal Council agenda process. ■ Attachment: Resolution Recommended Action: Approval Submitting Department/Agency: Consolidated Benefits Office�M City Manager: � , dam, 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 A RESOLUTION OFFERING DIRECTION TO THE CITY MANAGER REGARDING THE CITY'S HEALTH CARE OFFERINGS FOR PLAN YEAR 2013 WHEREAS, the City provides access to health insurance coverage to its employees and retirees who retire under the Virginia Retirement System; WHEREAS, the cost of providing health insurance coverage has continued to rise and is expected to significantly increase in the upcoming years; WHEREAS, it is the desire of the City Council to improve the health of City employees, workplace productivity and reduce the rising cost of health care; WHEREAS, City and School staff have recommended implementation of a health risk incentive program in coordination with the health insurance coverage to achieve these goals; WHEREAS, City Council was briefed on the health risk incentive program in which employees would receive an incentive for voluntarily undergoing a health risk assessment reviewing the following risk factors: (1) tobacco use; (2) exercise frequency; (3) blood pressure; (4) cholesterol; and (5) body mass index and consulting with a health coach; and WHEREAS, City Council, as recommended by City and School staff, supports the implementation of the health risk incentive program in coordination with the health insurance coverage to meet these goals. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: The City Manager is hereby directed to work with Consolidated Benefits Office staff to implement the health risk incentive program as part of the health insurance plan offered to City employees. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2011. APPROVED AS TO CONTENT: Consolidated Benefits Office CA12089 R-3 December 1, 2011 APPROVED AS TO LEGAL SUFFICIENCY: City A orney's Office M. PLANNING 1. Variance to §4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for KEITH P. and CHERI N. CARL re an existing lot at 4824 Lake Bradford Lane. DISTRICT 4 - BAYSIDE DISTRICT RECOMMENDATION APPROVAL 2. Application of the CITY OF VIRGINIA BEACH for a Street Closure at 408 Laskin Road. DISTRICT 6 - BEACH DISTRICT RECOMMENDATION DEFERRAL 3. Application of ATLANTIC DEVELOPMENT ASSOCIATES, LLC for a Nonconforming Use re a second single-family dwelling at 8004 Atlantic Avenue. DISTRICT 5 - LYNNHAVEN DISTRICT RECOMMENDATION APPROVAL 4. Application of ASHVILLE PARK, LLC/ATC REALTY SIXTEEN, INC. for the Modification of Proffers 11, 18, 19 and 30 (approved on a Conditional Change of Zoning by City Council on May 10, 2005) at Princess Anne Road Ashville Park, Village B. DISTRICT 7 - PRINCESS ANNE DISTRICT RECOMMENDATION APPROVAL Application of SENTARA VILLAGE — VIRGINIA BEACH/SENTARA LIFE CARE CORPORATION for a Modification of Conditional Use Permit (approved by City Council on November 13, 1990 and August 25, 1992) to ADD hospice services at 3751 Sentara Way. DISTRICT 3 - ROSE HALL DISTRICT RECOMMENDATION APPROVAL 6. Application of NEW TODAY BUS, INC./NEWTOWN BAKER SC for a Conditional Use Permit re a bus terminal at 649 Newtown Road, Suite 101. DISTRICT 2 - KEMPSVILLE DISTRICT RECOMMENDATION APPROVAL 7. Applications of AUTO PROPERTIES, LLC/KH REAL ESTATE, LLC at 326 and 330 Malibu Drive: LYNNHAVEN DISTRICT a. Conditional Change of Zoning from R-7.5 to Conditional B-2 b. Conditional Use Permit re motor vehicle sales and service expansion RECOMMENDATION DENIAL NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the Chamber at City Hall, Municipal Center. 2401 Courthouse Drive, Tuesday, December 13, 2011, at 6:00 p.m. The following applications will be heard: PRINCESS ANNE DISTRICT Ashville Park, LLC/ATC Realty Sixteen, Inc. Application: Modification of Conditional Change of Z nin at the East side of Princess Anne Road Village B, South side of Ashville Park (GPIN 2413165292). KEMIPSVILLE DISTRICT New Today Bus, Inc./Newtown Baker SC Application: Conditional Use Permi for a bus terminal at 649 Newtown Road, Suite 101 (GPIN 1468313784). ROSE HALL DISTRICT Sentara Village - Virginia Beach/Sentara Life Care Corporation Application: Modification of Conditional Use Permit at 3751 Sentara Way (GPIN 1487423567). BAYSIDE DISTRICT Keith P. and Cheri N. Carl Application: Subdivision Variance at 4824 Lake Bradford Lane (GPIN 1479398383). LYNNHAVEN DISTRICT Atlantic Development Associates, LLC Application: Nonconforming Use at 8004 Atlantic Avenue (GPIN 24195878902200). BEACH DISTRICT CITY OF VIRGINIA BEACH Street Closure for a portion of right-of-way west of property at 408 Laskin Road (GPIN 2418926002). All interested citizens 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 Planning or online at httn://www.VbgoV.com/oc For information call 385-4621. If you are physically disabled or visually Impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385- 4303. BEACON Nov 27 & Dec 4, 2011 22754204 (F,, f 11 I lij IJ LJt�j F�r POEM I -A PLO -A Lj C 1;7 93 AL I POOR 11P �i Lj 0 POM 1E Aq Ll L:�� lJ LD I" If L C-11, Vj POO L.- u Z, L-1 LJ LJ 9Ll L 1, C -_j 1:j j 1:j CD C. D L! IJ c') V) iJ R) R VO)B cl L i-- Lj -j CL j_ u Cj j�j t:I Cj 03 C: C, U-1 0 0 fS LI IJ Cl QV1 U) V� If) G, L-�l L ul k") 61) V, CA6.0 0 Vl V) 0 u) !;l u" f, G", f; . () C) Ca ci I C-1 0 0) Vi (Y) V, CV i 40 u 1 E - .rycj C) u ..-1j C� Q C) a n m n fq lz� C? Qv, i:ivi -ro *4 by) �fj i,•}ff, .1 NCI- s Nu fillo a CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: KEITH P. & CHERI N. CARL, Subdivision Variance, 4824 Lake Bradford Lane (GPIN 1479398383). BAYSIDE DISTRICT MEETING DATE: December 13, 2011 ■ Background: This request is to subdivide the existing lot into two parcels. The applicant obtained a building permit in June 1991 to make additions and alterations to an existing shed on the site. The applicant's intent was to convert the shed into a pool house. The addition was for a second floor of less than 7 feet in height, technically considered an attic. Additional permits were issued to upgrade the plumbing and electrical systems for both the main structure as well as the shed, or pool house. The applicant obtained a second electrical meter from Virginia Electric and Power Company, now know as Virginia Dominion Power, for the pool house. All of the permits were inspected and granted final approval in January 1992.The applicant states a propane stove was added to the pool house in 1996. With the addition of the stove, the pool house technically became a second dwelling unit in the site. Staff has worked with the applicant to resolve the issues associated with the site by exploring the possibility of rezoning the site to R-40 Residential and classifying the structure as a "guest house"; however the structure exceeds the allowed square footage of a guest house and also has a kitchen. Additionally, staff was not supportive of a spot zoning in the neighborhood. Staff also considered the definition of servants' quarters, but the structure is not occupied by servants. Existing Lot: The existing lot is 42,760 square feet in area and 51.92 feet in width at the right of way line. The lot is nonconforming with regard to lot width. Proposed Lots: It is the intent of the applicant to subdivide the existing lot into two lots to accommodate the existing single-family dwellings. Item Required Lot E-1 Lot E-2 Lot Width in feet 80 16.80* 35.12* Lot Area insquare feet 10,000 29,953.82 13,655.12 *Variance required ■ Considerations: The request is in keeping with the Comprehensive Plan recommendations for the area, and is compatible with the surrounding uses, particularly with the conditions recommended below. Keith P. and Cheri N. Carl Page 2of2 The request is not a detriment to the neighborhood, as the resulting lot widths are consistent with those in the surrounding area. A review of the recorded plat for the immediate area reveals none of the existing lots meet the required lot width for the R-10 Residential district and are considered nonconforming with regard the width. There was opposition to the request. ■ Recommendations: Staff recommended approval of this request with conditions. The Planning Commission, passing a motion by a recorded vote of 10-0, recommended approval of this request to the City Council with the following conditions: Any additions or alterations to the existing structure on proposed Lot E-2 shall meet the required setbacks, height, and lot coverage requirements of the zoning district in effect at the time of construction. No further encroachments shall be approved. 2. If and when the existing structure on proposed Lot E-2 is demolished future residential development shall meet all the requirements of the zoning district in effect at the time of construction. No other encroachments shall be permitted. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommended approval. Planning Commission recommended approval. Submitting Department/Agency: Planning Department City Manager: I�- .4b�N-;-t SAYSI DE .1..1,s c.. .v,.n.,.. O. SubdlvW— Ver1— SO. $M D" 0-1.y 19 November 9, 2011 Public Hearing APPLICANT & PROPERTY OWNER: KEITH P. & CHERIE N. CARL STAFF PLANNER: Faith Christie REQUEST: Subdivision Variance to Section 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance ADDRESS / DESCRIPTION: 4824 Lake Bradford Lane GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 1479983830000 BAYSIDE 42,760 square feet Less than 65 dB DNL SUMMARY OF REQUEST The request is to subdivide the existing lot into two parcels. The applicant obtained a building permit in June 1991 to make additions and alterations to an existing shed on the site. The applicant's intent was to convert the shed into a pool house. The addition was for a second floor of less than 7 feet in height, technically considered an attic. Additional permits were issued to upgrade the plumbing and electrical systems for both the main structure as well as the shed, or pool house. The applicant obtained a second electrical meter from Virginia Electric and Power Company, now know as Virginia Dominion Power, for the pool house. All of the permits were inspected and granted final approval in January 1992.The applicant states a propane stove was added to the pool house in 1996. With the addition of the stove, the pool house technically became a second dwelling unit in the site. The applicant obtained an encroachment agreement with the City of Virginia Beach for the existing fence, fixed pier, gravel walking path and parking area, and the small portion of the deck attached to the pool house. Staff has worked with the applicant to resolve the issues associated with the site by exploring the possibility of rezoning the site to R-40 Residential and classifying the structure as a "guest house"; however the structure exceeds the allowed square footage of a guest house and also has a kitchen. Additionally, staff was not supportive of a spot zoning in the neighborhood. Staff also considered the definition of servants' quarters, but the structure is not occupied by servants. KEITH P. AND CHERI N. CARL Agenda Item 19 Page 1 Existing Lot: The existing lot is 42,760 square feet in area and 51.92 feet in width at the right of way line. The lot is nonconforming with regard to lot width. Proposed Lots: It is the intent of the applicant to subdivide the existing lot into two lots to accommodate the existing single-family dwellings. Item Required Lot E-1 Lot E_2 Lot Width in feet 80 16.80" 35.12" Lot Area insquare feet 10,000 29,953.82 13,655.12 "Variance required LAND USE AND PLAN INFORMATION EXISTING LAND USE: Two single-family dwelllings occupy the site, R-10 Residential SURROUNDING LAND North: USE AND ZONING: South: East: West: NATURAL RESOURCE AND CULTURAL FEATURES: • Lake Bradford • Lake Bradford Lane • Single-family dwelling / R-10 Residential • Single-family dwelling / R-10 Residential The site is landscaped and wooded. The site is located in the Chesapeake Bay Preservation Area — Resource Management Area. COMPREHENSIVE PLAN: The Comprehensive Plan designates this area of the City as Suburban Area. The overriding objective of the Suburban Area policies is to protect the predominantly suburban character defined by the stable neighborhoods of our community. IMPACT ON CITY SERVICES City services are not impacted by this request. Section 9.3 of the Subdivision Ordinance states: No variance shall be authorized by the Council unless it finds that: A. Strict application of the ordinance would produce undue hardship. B. The authorization of the variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. C. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. KEITH P. AND CHERI N. CARL Agenda Item 19 Page 2 D. The hardship is created by the physical character of the property, including dimensions and topography, or by other extraordinary situation or condition of such property, or by the use or development of property immediately adjacent thereto. Personal or self- inflicted hardship shall not be considered as grounds for the issuance of a variance. E. The hardship is created by the requirements of the zoning district in which the property is located at the time the variance is authorized whenever such variance pertains to provisions of the Zoning Ordinance incorporated by reference in this ordinance. EVALUATION AND RECOMMENDATION Staff recommends approval of this request with conditions. The request is in keeping with the Comprehensive Plan recommendations for the area, and is compatible with the surrounding uses, particularly with the conditions recommended below. The request is not a detriment to the neighborhood, as the resulting lot widths are consistent with those in the surrounding area. A review of the recorded plat for the immediate area reveals none of the existing lots meet the required lot width for the R-10 Residential district and are considered nonconforming with regard the width. Staff therefore finds the request acceptable. CONDITIONS 1. Any additions or alterations to the existing structure on proposed Lot E-2 shall meet the required setbacks, height, and lot coverage requirements of the zoning district in effect at the time of construction. No further encroachments shall be approved. 2. If and when the existing structure on proposed Lot E-2 is demolished future residential development shall meet all the requirements of the zoning district in effect at the time of construction. No other encroachments shall be permitted. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. KEITH P. AND CHERI N. CARL Agenda Item 19 Page 3 Lake Bradford 1 ake B r a _ aaf rd Lane4 Q sum w* tee" Y �ou LS p i Ywv sum w* tee" yy� tlyy i N 3 Y .v 3 LS i n R p1gy4�1�wa•0� 7y,pYty yy� tlyy i N 3 R YAR �d a lit t r\�� a PROPOSED SUBDIVISION PLAN KEITH P. AND CHERI N. CARL = Agenda Item 19 Page 5 .s Y .v 3 LS i R YAR �d a lit t r\�� a PROPOSED SUBDIVISION PLAN KEITH P. AND CHERI N. CARL = Agenda Item 19 Page 5 .s ZONING HISTORY # DATE REQUEST ACTION 1 4/14/92 Subdivision Variance Approved KEITH P. AND CHERI N. CARL Agenda Item 19 Page 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) 0004 nla ]�04- 2. List all businesses that have a parent -subsidiary' or affiliated business entity relationship with the applicant: (Attach list ff necessary) rile © Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this if section only 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) Ga Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 6 See next page for footnotes O 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? RezmhV Applicedw Po9e 9 d 10 Revised 1111 MAN DISCLOSURE STATEMENT KEITH P. AND CHERI N. CARL Agenda Item 19 Page 7 DISCLOSURE STATEMENT C) 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. i '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, (in) a controlling owner in one entity is also a controlling owner in the other entity, or (ti) 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 some person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entitles share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a dose working relationship between the entkies' See State and Local Government Conflict of interests Act, Va. Code § 2.2-3101. CERTFICATION: 1 certify that the information contained herein is true and aocarate. I nrxlerstand that. upon receipt of notikation (posteard) that the am*ca#on has been scheduled for public (rearing, l am responsible for obtaining and posW9 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 Pi�arm�kjjjng to photograph and New tfne site for p AjJ( of process�yin�/g and evaluating this appli(c/atition. ` ; tel/ Wl 1 `¢' 1 1 karts Signature Print Name Properly Owner's Signature (if difteranl than applicant) Print Name ft*Z hV AppFwum DISCLOSURE STATEMENT KEITH P. AND CHERI N. CARL Agenda Item 19 Page 8 Item # 19 Keith P. & Cherie N. Carl Subdivision Variance 4824 Lake Bradford Drive District 4 Bayside November 9, 2011 REGULAR An application of Keith P. & Cherie N. Carl for a Subdivision Variance to Section 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance, District 4, Bayside. GPIN: 1479-98-3830-0000. CONDITIONS 1. Any additions or alterations to the existing structure on proposed Lot E-2 shall meet the required setbacks, height, and lot coverage requirements of the zoning district in effect at the time of construction. No further encroachments shall be approved. 2. If and when the existing structure on proposed Lot E-2 is demolished future residential development shall meet all the requirements of the zoning district in effect at the time of construction. No other encroachments shall be permitted. By a vote 10-0, the Commission approved item 19. Les Watson appeared before the Commission on behalf of the applicant. Dr. Ed Absar appeared in opposition. AYE 10 NAY 0 ABS 0 ABSENT 1 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE HORSLEY AYE LIVAS AYE REDMOND AYE RIPLEY ABSENT RUSSO AYE STRANGE AYE THORNTON AYE By a vote 10-0, the Commission approved item 19. Les Watson appeared before the Commission on behalf of the applicant. Dr. Ed Absar appeared in opposition. �Nu'BF;c�. r hy,7 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Ordinance Approving Application of the CITY OF VIRGINIA BEACH for the Closure of an unimproved portion of Holly Road DISTRICT 6 - BEACH MEETING DATE: December 13, 2011 It was anticipated that this item would be completed by December 13, 2011 and the item was advertised for this date. The item, however, is not ready and therefore staff recommends indefinite deferral at this time. Recommended Action: Deferral Submitting Department/Agenc : Planning Department City Manager: S si CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Authorizing the Conversion of a Nonconforming Use on Property Owned by Atlantic Development Associates, LLC and located at 8004 Atlantic Avenue (GPIN 24195878902200). LYNNHAVEN DISTRICT MEETING DATE: December 13, 2011 ■ Background: The lot was developed in 1945 with a garage apartment. In 1957, a second dwelling and utility shed was placed on the property. In 1957, both the single- family dwelling and garage apartment were permitted uses in the R -D 2 Residence Duplex District of the Master Zoning Plan of Princess Anne County. The Comprehensive Zoning Ordinance was adopted in November 1973 and garage apartments were removed from the ordinance. The current City Zoning Ordinance, adopted on April 1988, does not permit garage apartments in the R -5R Residential District. Thus the existing garage apartment is nonconforming. The applicant proposed to demolish the existing two-story garage apartment and replace it with a two and one-half story, single-family dwelling with an attached 170 square foot garage. Thus, converting the nonconforming garage apartment into a use not allowed in the Zoning Ordinance, a second single-family dwelling on the same lot. The proposed 2,000 square foot cottage will be shifted to the north and will be setback 14 feet from the south side property line and eight feet from the north side property line while maintaining the 10 foot rear setback. A porch extends five feet into the eastern yard area and the proposed dwelling will be 33 feet in height. The proposed attached garage is smaller than a standard garage and the angle of the proposed driveway does not allow an average -sized car to fit into the garage. The existing lot coverage is 36 percent and will not change. The impervious cover will be reduced from existing 64 percent to 62 percent and the floor area will be significantly below the 5,250 square feet allowed. ■ Considerations: Section 105(e) of the City Zoning Ordinance states that no nonconforming use shall be converted to another use which does not conform to this ordinance unless the City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity." The proposed conversion is reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non -conforming use. The new single-family dwelling conforms, or is in greater conformity to the provisions of the Zoning Ordinance in each respect that the garage apartment conforms. The request is also in keeping with the vision of the North End residents to permit two single-family dwellings on a site, as permitted in the Old Beach district, as opposed to a duplex. Atlantic Development Assoc., LLC & 8004 Atlantic Avenue A Condominium Page 2 of 2 ■ Recommendations: Staff recommended approval with the following conditions: 1. The alterations shall substantially adhere to the submitted site plan entitled, "Conceptual Site Plan; 8004 "A" & 8004 "B" Atlantic Avenue", prepared by WPL and dated June 30, 2011. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 2. The proposed alterations shall substantially adhere to the submitted elevations entitled, "Site Plan; 8004 "A" & 8004 "B" Atlantic Avenue", prepared by WPL and dated June 30, 2011. Said elevations have been exhibited to the City of Virginia Beach City Council and are on file in the Planning Department. 3. All required permits for the proposed additions and alterations shall be obtained from the Planning Department/Permits and Inspections Division. ■ Attachments: Staff Review and Disclosure Statements Resolution Location Map Recommended Action: Staff recommended approval. Submitting Department/Agency: Planning Department City Manager: I< cat /t 1 A RESOLUTION AUTHORIZING THE 2 CONVERSION OF A NONCONFORMING 3 USE ON PROPERTY OWNED BY ATLANTIC 4 DEVELOPMENT ASSOCIATES, LLC AND 5 LOCATED AT 8004 ATLANTIC AVENUE 6 7 WHEREAS, Atlantic Development Associates, LLC and 8004 Atlantic Avenue a 8 Condominium, (hereinafter the "Applicants") have made application to the City Council 9 for authorization to convert a nonconforming use located at 8004 Atlantic Avenue, in the 10 R -5R, Residential Zoning District, by demolishing a garage apartment and replacing it 11 with a single-family dwelling on the same lot; and 12 13 WHEREAS, the garage apartment is nonconforming as it was built prior to the 14 adoption of the applicable zoning regulations, and the additional single-family dwelling 15 on a single lot is not allowed in the R -5R Residential Zoning District, so this demolition 16 and construction is a conversion of the nonconforming use; and 17 18 WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the 19 conversion of a nonconforming use is unlawful in the absence of a resolution of the City 20 Council authorizing such action upon a finding that the proposed use, as converted, will 21 be equally appropriate or more appropriate to the zoning district than is the existing use; 22 23 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 24 VIRGINIA BEACH, VIRGINIA: 25 26 That the City Council hereby finds that the proposed use, as converted, will be 27 equally appropriate to the district as is the existing nonconforming use under the 28 conditions of approval set forth hereinbelow. 29 30 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 31 BEACH, VIRGINIA: 32 33 That the conversion of the nonconforming use is hereby authorized, upon the 34 following conditions: 35 36 1. The alterations shall substantially adhere to the submitted site plan entitled, 37 "Conceptual Site Plan; 8004 "A" & 8004 "B" Atlantic Avenue", prepared by 38 WPL and dated June 30, 2011. Said plan has been exhibited to the City of 39 Virginia Beach City Council and is on file in the Planning Department. 40 41 2. The proposed alterations shall substantially adhere to the submitted elevations 42 entitled, "Site Plan; 8004 "A" & 8004 "B" Atlantic Avenue", prepared by WPL 43 and dated June 30, 2011. Said elevations have been exhibited to the City of 44 Virginia Beach City Council and are on file in the Planning Department. 45 46 3. All required permits for the proposed additions and alterations shall be 47 obtained from the Planning Department/Permits and Inspections Division. 48 49 50 Adopted by the Council of the City of Virginia Beach, Virginia, on the day of )2011. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: -M AAX-17-1 I ning DepartmentCity Attorney's CA12091 R-1 November 30, 2011 jj�IJJA 4, l �li'� Office LYNNHAVEN X Atlantic Development Associates, LLl- RSR R5R-,% Wt Non -Conforming Use REQUEST: Conversion of a Nonconforming Use ADDRESS /DESCRIPTION: 8004 Atlantic Avenue December 13, 2011 Public Hearing APPLICANT: ATLANTIC DEVELOPMENT ASSOCIATES, LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM PROPERTY OWNER: ATLANTIC DEVELOPMENT ASSOCIATES, LLC STAFF PLANNER: Leslie Bonilla GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 2419587890-2200 LYNNHAVEN 7,500 square feet Less than 65 dB DNL SUMMARY OF REQUEST The applicant requests a conversion of a nonconforming use, a garage apartment, to another use which does not conform to the City Zoning Ordinance, asingle-family dwelling on the same lot. The lot was developed in 1945 with a garage apartment. In 1957, a second dwelling and utility shed was placed on the property. In 1957, both the single-family dwelling and garage apartment were permitted uses in the R -D 2 Residence Duplex zoning district of the Master Zoning Plan of Princess Anne County. The Comprehensive Zoning Ordinance was adopted in November 1973 and garage apartments were removed from the ordinance. The current City Zoning Ordinance, adopted on April 1988, does not permit garage apart ments or a second single-family dwelling in the R -5R Residential zoning district. Thus the existing garage apartment is nonconforming, and any conversion to asingle-family dwelling must be approved by the City Council. ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 1 The applicant proposes to demolish the existing two-story garage apartment and replace it with a two and one-half story, single-family dwelling with an attached 170 square foot garage. The existing garage apartment is 1,440 square feet and is situated 19.34 feet from the northern property line, 10.37 feet from the western property line, and 6.59 feet from the southern property line. The proposed 2,000 square foot cottage will be shifted to the north and will be setback 14 feet from the south side property line and eight feet from the north side property line while maintaining the 10 foot rear setback. A porch extends five feet into the eastern yard area and the proposed dwelling is 33 feet in height. The proposed attached garage is smaller than a standard garage and the angle of the proposed driveway does not allow an average - sized car to fit into the garage. The existing lot coverage (i.e. both units on lot) is 36 percent and will not change. The impervious cover will be reduced from existing 64 percent to 62 percent and the floor area will be significantly below the 5,250 square feet allowed. The submitted building elevations depict a two and one-half story cottage with a gable roof and a front porch entrance feature. The exterior walls of the building consist of siding. LAND USE AND PLAN INFORMATION EXISTING LAND USE: Two detached dwellings with associated parking SURROUNDING LAND North: . Single-family homes / R -5R Residential Duplex District USE AND ZONING: South: . Single-family homes / R -5R Residential Duplex District East: . Single-family & duplex homes / R -5R Residential Duplex District West: . Single-family & duplex homes / R -5R Residential Duplex District NATURAL RESOURCE AND There are no known natural resources or cultural features associated CULTURAL FEATURES: with this site. COMPREHENSIVE PLAN: The Comprehensive Plan designates this site as being in the Suburban Area, Suburban Focus Area 7 -North Beach Area. North Beach, located on both sides of Atlantic Avenue from 42nd Street to 89th Street, is characterized by a compact arrangement of single-family and duplex units with much of the land zoned Residential Resort District (R -5R). CITY SERVICES City services are not affected by this request. EVALUATION AND RECOMMENDATION ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 2 Section 105(e) of the City Zoning Ordinance states that no nonconforming use shall be converted to another use which does not conform to this ordinance unless the City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity." The proposed conversion is reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non -conforming use. The new single-family dwelling conforms, or is in greater conformity to the provisions of the Zoning Ordinance in each respect that the garage apartment conforms. The request is also in keeping with the vision of the North End residents to permit two single-family dwellings on a site, as permitted in the Old Beach district, as opposed to a duplex. Staff recommends approval of this proposal as submitted and conditioned below. CONDITIONS 1. The alterations shall substantially adhere to the submitted site plan entitled, "Conceptual Site Plan; 8004 "A" & 8004 "B" Atlantic Avenue", prepared by WPL and dated June 30, 2011. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 2. The proposed alterations shall substantially adhere to the submitted elevations entitled, "Site Plan; 8004 "A" & 8004 "B" Atlantic Avenue", prepared by WPL and dated June 30, 2011. Said elevations have been exhibited to the City of Virginia Beach City Council and are on file in the Planning Department. 3. All required permits for the proposed additions and alterations shall be obtained from the Planning Department/Permits and Inspections Division. 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. ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 3 AERIAL OF SITE LOCATION ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 4 RS W C� m FF I + Yo w• ^� ILn ANN; I3 R ` I Y I i ,01 LEO I N1111tiuuuuu , sem' N UI''r 1a73H1 S mOO w Qoz U c5 Z ' Q HO Q � W z aC G a C w 00 i � Co < Q v u F- U a a z C ? o C ¢ J > u00>3 K D U Z N w PROPOSED SITE PLAN ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 5 m �l I I < 9W I !� ! s.n+sarrrirwx rN g�Y 8 Rh o 5 u Is Al j .00091 3.00.9* -V N + �Y Q - I ,00-09+ M .00.9>aa s � r c 0001 •00¢9 I 1 1 O m RS W C� m FF I + Yo w• ^� ILn ANN; I3 R ` I Y I i ,01 LEO I N1111tiuuuuu , sem' N UI''r 1a73H1 S mOO w Qoz U c5 Z ' Q HO Q � W z aC G a C w 00 i � Co < Q v u F- U a a z C ? o C ¢ J > u00>3 K D U Z N w PROPOSED SITE PLAN ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 5 m �l I I < 9W u Is Al �Y Z ,00-09+ M .00.9>aa s FF StA N 4 -s+>rrxr�J ' O N YS .,• w t� l w• t 9') f o W 133H19 moo �J W RS W C� m FF I + Yo w• ^� ILn ANN; I3 R ` I Y I i ,01 LEO I N1111tiuuuuu , sem' N UI''r 1a73H1 S mOO w Qoz U c5 Z ' Q HO Q � W z aC G a C w 00 i � Co < Q v u F- U a a z C ? o C ¢ J > u00>3 K D U Z N w PROPOSED SITE PLAN ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 5 PHOTOGRAPH OF EXISTING GARAGE APARTMENT (TO BE REMOVED) ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 6 LYNNHAVEN Ir I Alap L-3 Ma ;) Not to R5 P1 First Lan in State Park ' Zoning with Cofiditions. Proffers. Open Space Promotion or PDH•2 Overlays AllanTIC VCVC10j)111C11L.,-X5NUk;1dtVNq ZONING HISTORY r Non -Conforming Us # DATE REQUEST ACTION 1 12/11/2007 Nonconforming Use Approved 2 10/11/2011 Nonconforming Use Approved ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 7 DISCLOSURE STATEMENT O z 0 z 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) Atlantic Development Associates, LLC: Brian C. Large, Sole Member 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Atlantic Development Associates, LLC: Brian C. Large, Sole Member Margaret M. Gilman 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 Non -Conforming Use Application Page 8 of 9 Revised 9/1/2004 DISCLOSURE STATEMENT ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 8 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Sykes, Bourdon, Ahern & Levy, P.C. WPL 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 (1) 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: 1 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. Atlantic erftAs LLC B y: Brian C. Large, sole member gn,tur> Print Name h'1c+�-+•c�rr.�t caw... Margaret M. Gilman Property ohm is Signature (if different than applicant) Print Name Non -Conforming Use Application Page 9 of 9 Revised 9/1/2004 0r: Ali Be6B DISCLOSURE STATEMENT ATLANTIC DEVELOPMENT ASSOC., LLC & 8004 ATLANTIC AVENUE A CONDOMINIUM December 13, 2011 CITY COUNCIL Page 9 -51 - Item J.S. PLANNING ITEM # 53951 (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 Tenth of May, Two Thousand Five Voting: 9-2 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Reba S. McClanan and Mayor Meyera E. Oberndorf Council Members Absent: None May 10, 2005 -50 - Item J. S. PLANNING ITEM # 53951 Attorney R. J. Nutter, 222 Central Park Avenue, Phone: 687-7500, represented Sandler at Ashville Park Attorney Nutter advised as per the request of Steven R. Berman and Jack Keenan, adjacent property owners, the berms have been raised, one 4 to 6 -foot and the other 6 to 8 -foot, both landscaped. Katherine Holder, represented Sandler Steven R. Berman, 1685 Flanagan's Lane, Phone: 426-2077, spoke in OPPOSITION. Mr. Berman had requested the road be placed, at a minimum 225 feet away from his property. Mr. Berman will also have a multi -trail equestrian trail in front of his home. Mr. Berman requested Village B remain where designed. Mr. Berman distributed a copy of the plat of the location of his property and copy of meetings with the previous developer (Richard Browner). Said information is hereby made a part of the record. Upon motion by Councilman Reeve, seconded by Councilman Maddox, City Council ADOPTED an Ordinance upon application of SANDLER AT ASH VILLE PARK, LLC for a Change of Zoning District Classi ication from Conditional R-30 Residential and P-1 Preservation District with a PDH -2 Overlay. The purpose of the zoning change is to modify a previously approved development plan (February 24, 2004): ORDINANCE UPON APPLICATION OF SANDLER AT ASHVILLE PARK, L.L.C. FOR A CHANGE OF ZONING DISTRICT CIA SSIFICA TION FR OM CONDITIONAL R-30 AND P-1 WITHA PD - H2 OVERLAY TO CONDITIONAL R-30 AND P-1 WITH A PD -H2 OVERLAYZO5051221 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Sandler at Ashville Park, L.L.C. for a Change of Zoning District Classification from Conditional R-30 Residential District and P -I Preservation District with a PD -H2 Overlay to Conditional R-30 Residential District and P-1 Preservation District with a PD -H2 Overlay on property located on the east side of Princess Anne Road, abutting the north and south sides of Flanagan Lane to its intersection with Sandbridge Road (GPINs 24130719600000; 24130662590000; 24131678130000; 24133638620000; 24134643370000; 24134795080000; 24135552520000; 24137544010000). The Comprehensive Plan designates this site as beingpart ofPrincess Anne (Transition Area). Thepurposeofthezoning change is to modify a previously approved development plan. DISTRICT 7 — PRINCESS ANNE The following condition shall be required.• An Amended Agreement encompassingproffers shall be recorded with the Clerk of Circuit Court and is hereby made apart of the record.. May 10, 2005 F? I 4� v w j 5 0 LL -1 LL C4 k 2�� s CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: ASHVILLE PARK, LLC/ATC REALTY SIXTEEN, INC., Modification of Conditional Change of Zoning, east side of Princess Anne Road Village B, South side of Ashville Park (GPIN 2413165292). PRINCESS ANNE DISTRICT. MEETING DATE: December 13, 2011 ■ Background: The applicant proposes modifications to proffers in order to make adjustments to a previously approved land use plan for the proposed development. The proposed development plan is approved for 499 dwellings, of which 169 are designated as age restricted, on 452.8 acres of land. The dwellings are dispersed throughout the site in five residential villages. Lot sizes vary from 20,000 square feet in Villages A and C, 12,000 square feet in Villages D and F, and 7,200 square feet in the Village B, the age restricted area. The overall density is 1.1 units per acre, and the overall open space is 52% of the land area. The basic concept of the proposed development will not change. High quality dwellings as well as extensive landscaping and berming are still proposed. The Conditional Rezoning from Conditional R-30 Residential District and P-1 Preservation District with a PD -H2 Planned Unit Development District to Conditional R-30 Residential District and P-1 Preservation District with a PD -H2 Planned Unit Development District was approved by the City Council on May 10, 2005. The Conditional Rezoning has 36 proffers: The aiWicant is requestinq modifications to Proffers 11, 18, 19, and 30: PROFFER 11: The Grantor shall record a Master Deed of Covenants, Conditions and Restrictions ("Restrictions") governing the Property. All landowners within the PD -H2 District shall be members of a Home Owners Association responsible for maintaining collectively all common areas on the Property. The Restrictions shall be enforced by one or more Home Owners Association, which Restrictions, shall among other things, restrict the use of the open space areas for any purpose, but recreation and open space use. Such covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. These covenants shall become part of the deed of each lot or parcel within the development. Such covenants shall be approved by the City Attorney and recorded before the first building permit in the project is issued. Ashville Park, LLC Page 2of4 The Restrictions shall among other things require that every residential unit within Village B as shown on the Master Plan will be occupied, on a full-time basis, by at least one (1) adult resident of fifty-five (55) years of age or older. The Restrictions shall also prohibit persons less than eighteen (18) years of age from residing in any residential unit within Village B for more than one hundred twenty (120) days in any calendar year. The applicant desires to remove the age restrictions for Village B. PROFFER 18: Two Recreational Activity Areas shall be designed, constructed and built on the Property substantially where indicated on the Master Plan. Both facilities shall provide indoor amenities, meeting rooms and active outdoor recreational amenities. No outside recreational fields or sporting areas shall be lighted to permit sporting events at night. This restriction shall not prohibit lighted outdoor swimming pools or lighted outdoor tennis courts provided that any such lighted tennis courts must be setback a minimum of 150' from a residential property line. Outdoor lighting installed for the swimming pools or outdoors tennis courts shall be directed downward toward the swimming pool or tennis courts play area. PROFFER 19: The recreational facilities shall be substantially similar in quality, design and character to the exhibits entitled "Community Amenities" as contained in Section VI in the Manual. It is recognized that with a development of this size, detailed building plans may change as the development of Ashville Park progresses. The intent of the renderings is to demonstrate the architectural style and building quality of these facilities. Final elevations for these structures shall be submitted to the Planning Director to assure compliance with this proffer. The applicant desires the elimination of the Active Adult center proposed in Village B. The area shall be left green and developed with shade and flowering trees, concrete walks and benches, a paver plaza and gazebo or fountain. PROFFER 30: All residential dwellings constructed within Villages B shall contain no less than 1,800 square feet of enclosed living area, excluding garage area, for any one-story dwelling and shall contain no less than 2,400 square feet of enclosed living area, excluding garage area, for any two-story dwelling. The applicant wishes to reduce the minimum required square footage of the two- story dwellings from 2,400 square of enclosed living area to 2,100 square feet of living area. All other proffers will remain the same as proffered on May 2005. Ashville Park, LLC Page 3 of 4 ■ Considerations: The proposed modifications to the proffers do not change the layout design of the village, provide more open space in the village, and do not change the overall density previously approved for the entire subdivision. The reduction of the square footage of the two-story dwellings is minimal and should not affect the quality of the built product. There was opposition to the request. ■ Recommendations: Staff recommended approval of this request with the submitted proffers. The Planning Commission, passing a motion by a recorded vote of 9-2, recommended approval of this request to the City Council with the following 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: 11. The Grantor shall record a Master Deed of Covenants, Conditions and Restrictions ("Restrictions") governing the Property. All landowners within the PD -H2 District shall be members of a Home Owners Association responsible for maintaining collectively all common areas on the Property. The Restrictions shall be enforced by one or more Home Owners Association, which Restrictions, shall among other things, restrict the use of the open space areas for any purpose, but recreation and open space use. Such covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. These covenants shall become part of the deed of each lot or parcel within the development. Such covenants shall be approved by the City Attorney and recorded before the first building permit in the project is issued. PROFFER 2: 18. One Recreational Activity Area shall be designed, constructed and built on the Property between Village "A: and Village "C", substantially where indicated on the Master Plan. The facility shall provide indoor amenities, meeting rooms and active outdoor recreational amenities. No outside recreational fields or sporting areas shall be lighted to permit sporting events at night. This restriction shall not prohibit lighted outdoor swimming pools or lighted outdoor tennis courts provided that any such lighted tennis courts must be setback a minimum of 150' from a residential property line. Outdoor lighting installed for the swimming pools or outdoors tennis courts shall be directed downward toward the swimming pool or tennis courts play area. PROFFER 3: 19. The recreational facility referenced in Proffer number 18 shall be substantially similar Ashville Park, LLC Page 4 of 4 in quality, design and character to the exhibit entitled "Community Amenities" as contained in Section VI in the Manual. It is recognized that with a development of this size, detailed building plans may change as the development of Ashville Park progresses. The intent of the renderings is to demonstrate the architectural style and building quality of these facilities. Final elevations for these structures shall be submitted to the Planning Director to assure compliance with this proffer. PROFFER 4: 19. All residential dwellings constructed within Villages B shall contain no less than 1,800 square feet of enclosed living area, excluding garage area, for any one-story dwelling and shall contain no less than 2,100 square feet of enclosed living area, excluding garage area, for any two-story dwelling. PROFFER 5: Except for the modification by replacement of Proffers number 11", 18", "19" and "30" the remaining thirty-three (33) proffered covenants, restrictions and conditions as set forth in the "2005 Proffers" are hereby ratified and affirmed. STAFF COMMENTS: The proffers listed above are acceptable. The City Attorney's Office has reviewed the proffer agreement dated September 1, 2011, and found it to be legally sufficient and in acceptable legal form. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommended approval. Planning Commission recommended approval. Submitting Department/Agency: City Manager: � Planning Department kwe, PRINCESS ANNE Modiflcadon of Proffers 2 November 9, 2011 Public Hearing APPLICANT: ASHVILLE PARK, L.L.C. PROPERTY OWNER: ATC REALTY SIXTEEN, INC. STAFF PLANNER: Faith Christie REQUEST: Modification of Conditional Change of Zoning approved by the City Council on May 10, 2005 ADDRESS / DESCRIPTION: Village B — Ashville Park GPIN: ELECTION DISTRICT: SITE SIZE: AshviVe Park 24131652920000 PRINCESS ANNE 196.52 ACRES 65-70 dB DNL, Sub Area 2 � ,n.. �ee�i fr• a� � ate::. sa►. �'� Y l 1Kya4 - ���� �9►�f1iYyPi! ra!a . �/ •1'P1! •q� .app Modiflcadon of Proffers 2 November 9, 2011 Public Hearing APPLICANT: ASHVILLE PARK, L.L.C. PROPERTY OWNER: ATC REALTY SIXTEEN, INC. STAFF PLANNER: Faith Christie REQUEST: Modification of Conditional Change of Zoning approved by the City Council on May 10, 2005 ADDRESS / DESCRIPTION: Village B — Ashville Park GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 24131652920000 PRINCESS ANNE 196.52 ACRES 65-70 dB DNL, Sub Area 2 SUMMARY OF REQUEST The applicant proposes modifications to several proffers in order to make adjustments to the previously approved land use plan for the proposed development. The proposed development plan is approved for 499 dwellings, of which 169 are designated as age restricted, on 452.8 acres of land. The dwellings are dispersed throughout the site in five residential villages. Lot sizes vary from 20,000 square feet in Villages A and C, 12,000 square feet in Villages D and F, and 7,200 square feet in the Village B, the age restricted area. The overall density is 1.1 units per acre, and the overall open space is 52% of the land area. The basic concept of the proposed development will not change. There will still be meandering pedestrian trails, equestrian trails, pocket and linear parks, and recreational amenities in the form of a clubhouse, pool, tennis courts, playing fields, and tot lots. These recreation areas are located within the open space between the villages High quality dwellings as well as extensive landscaping and berming are still proposed. Another unique feature of the subdivision design is the "linear park". These areas line segments of the internal streets and are intended to create the appearance of more open space. Setting the sidewalk back a considerable distance from the street creates the linear parks. As a result, the dwellings are set very close to the sidewalks (the specific distance has not been specified in the plans). The green space between the street and the sidewalk is the linear park. The width of the linear parks varies. The linear parks are actually privately owned but will be subject to an easement allowing public access through the area. The Homeowners Association will maintain them. ASHVILLE PARK L.L.C. Agenda Item 2 Pae 1 The Conditional Rezoning from Conditional R-30 Residential District and P-1 Preservation District with a PD -H2 Planned Unit Development District to Conditional R-30 Residential District and P-1 Preservation District with a PD -H2 Planned Unit Development District was approved by the City Council on May 10, 2005. The Conditional Rezoning has 36 proffers: The applicant is requesting modiffcations to Proffers 11. 18. 19. and 30: PROFFER 11: The Grantor shall record a Master Deed of Covenants, Conditions and Restrictions ("Restrictions") governing the Property. All landowners within the PD -H2 District shall be members of a Home Owners Association responsible for maintaining collectively all common areas on the Property. The Restrictions shall be enforced by one or more Home Owners Association, which Restrictions, shall among other things, restrict the use of the open space areas for any purpose, but recreation and open space use. Such covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. These covenants shall become part of the deed of each lot or parcel within the development. Such covenants shall be approved by the City Attorney and recorded before the first building permit in the project is issued. The Restrictions shall among other things require that every residential unit within Village B as shown on the Master Plan will be occupied, on a full-time basis, by at least one (1) adult resident of fifty-five (55) years of age or older. The Restrictions shall also prohibit persons under eighteen (18) years of age from residing in any residential unit within Village B for more than one hundred twenty (120) days in any calendar year. The applicant_ desires to remove the age restrictions for Villaae B. PROFFER 18: Two Recreational Activity Areas shall be designed, constructed and built on the Property substantially where indicated on the Master Plan. Both facilities shall provide indoor amenities, meeting rooms and active outdoor recreational amenities. No outside recreational fields or sporting areas shall be lighted to permit sporting events at night. This restriction shall not prohibit lighted outdoor swimming pools or lighted outdoor tennis courts provided that any such lighted tennis courts must be setback a minimum of 150' from a residential property line. Outdoor lighting installed for the swimming pools or outdoors tennis courts shall be directed downward toward the swimming pool or tennis courts play area. PROFFER 19: The recreational facilities shall be substantially similar in quality, design and character to the exhibits entitled "Community Amenities" as contained in Section VI in the Manual. It is recognized that with a development of this size, detailed building plans may change as the development of Ashville Park progresses. The intent of the renderings is to demonstrate the architectural style and building quality of these facilities. Final elevations for these structures shall be submitted to the Planning Director to assure compliance with this proffer. The applicant desires the elimination of the Active Adult center proposed in Village B. The area shall be left preen and developed with shade and flowerinq trees concrete walks and benches a paver plaza and gazebo or fountain. PROFFER 30: All residential dwellings constructed within Villages B shall contain no less than 1,800 square feet of enclosed living area, excluding garage area, for any one-story dwelling and shall contain no less than 2,400 square feet of enclosed living area, excluding garage area, for any two-story dwelling. ASHVILLE"PARK L.L.C. Agenda Item 2 Page 2 The applicant wishes to reduce the minimum required square footage of the two-story dwellings from 2,400 square of enclosed living area to 2.100 square feet of living area. All other proffers will remain the same as proffered on May 2005. LAND USE AND PLAN INFORMATION EXISTING LAND USE: This village is undeveloped. SURROUNDING LAND North: . Ashville Boulevard USE AND ZONING: . Across Ashville Boulevard are single-family dwellings / Conditional R-30 Residential District and P-1 Preservation District with a PD -H2 Planned Unit Development District South: . Several single-family dwellings, United States Coast Guard facility and an abandoned airfield / AG -1 and AG -2 Agricultural East: . Single-family dwellings, wooded areas and cultivated fields / • AG -1 and AG -2 Agricultural West: . Princess Anne Road • Across Princess Anne Road are cultivated fields and single family / AG -1 and AG -2 Agricultural • dwellings / AG -1 and AG -2 Agricultural NATURAL RESOURCE AND Portions of the site are open fields, and other areas are wooded. The site CULTURAL FEATURES: drains either to the north toward Scopus Marsh or eastward to Ashville Bridge Creek and Back Bay. There are areas of non -tidal wetlands as defined by the U.S. Corps of Engineers (but not by the City) that will be preserved. From a cultural perspective, it appears that the City's most infamous character, the "Witch of Pungo" Grace Sherwood, owned a portion of the site during her lifetime. According to City records, John White, Grace's father, received a land patent of 195 acres at Ashville Creek at the east end of Muddy Creek in 1674. At his death, the property conveyed to James and Grace Sherwood. COMPREHENSIVE PLAN: Transition Area The Transition Area lies between the more densely developed Suburban Area and low density Rural Area of the City. The Comprehensive Plan states that these areas are not to become part of the urban area north of the Green Line nor limited to very low densities for rural growth. These areas will continue to be well-planned with clustered development, protected open space, and densities averaging no more than one dwelling unit per acre. While there are some Special Areas identified within the Transition Area, the Transition Area as a whole is characterized by many high quality residential neighborhoods with significant open space areas. CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Ashville Park has access to Flanagan's Lane and Princess Anne Road; however, the location of the proposed modifications ASHVILLE PARK L:L.C. Agenda Item 2 Page 3 should ultimately affect the Princess Anne Road access point only. In the vicinity of this site, Princess Anne Road is a two-lane minor suburban arterial with a variable (80 feet to 100 feet) right-of-way width. There are currently no CIP projects planned for this portion of Princess Anne Road. The proposed modification to the original plans is expected to generate approximately 1060 additional daily vehicular trips, with approximately 125 occurring in the afternoon peak hour. Although this trip generation increase is significant, it does not invalidate the original Traffic Impact Study (TIS), or require it to be updated. The approved original TIS analysis found that a traffic signal for the intersection of Ashville Park Boulevard and Princess Anne Road would be required at approximately 70% build -out of the entire Ashville Park development. The additional trips resulting from the currently proposed modification will likely impact this projection, causing the signal to be warranted at an earlier date. Traffic Engineering will continue to monitor the intersection, and will require the traffic signal to be installed when it becomes warranted, regardless of the previously approved projections. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Princess Anne Elementary Princess Anne 12,280 ADT 15,000 ADT Existing Land Use — 594 Princess Anne Middle Road 1,299 27 ADT (42 PM Peak Hour) Kellam High 1,843 1,762 36 Proposed Land Use 3- "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). 1,690 ADT (169 PM Peak Hour Average Daily Trips 2 as defined by 169 age restricted units Sas defined by 169 single family units WATER and SEWER: This site must connect to City water. This site must connect to City sanitary sewer. The site is located within two pump station service areas. The applicant shall provide analysis of Pump Station #645 and the sanitary sewer collection system to insure future flow can be accommodated. A service boundary has been established for the purposed Pump Station #646. Construction plans for water and sewer services are required. PARKS and RECREATION: With the removal of the active adult recreation club and the age restriction from this section, the perimeter trail (suitable for equestrian use) becomes a more important amenity. Therefore, the trail section must be built as shown in the connectivity section of the master plan. Also, a trail easement must be recorded where the perimeter trail crosses Homeowner Owner Association open space. SCHOOLS: School Current Enrollment Capacity Generation Change 2 Princess Anne Elementary 529 635 41 41 Princess Anne Middle 1,365 1,299 27 27 Kellam High 1,843 1,762 36 36 "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). ASHVILLE"PARK LI C. Agenda Item 2 Page 4 EVALUATION AND RECOMMENDATION The proposed modifications to the proffers do not change the layout design of the village, provide more open space in the village, and do not change the overall density previously approved for the entire subdivision. The reduction of the square footage of the two-story dwellings is minimal and should not affect the quality of the built product. Staff recommends approval of this request with the submitted proffers provided 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 11: The Grantor shall record a Master Deed of Covenants, Conditions and Restrictions ("Restrictions") governing the Property. All landowners within the PD -H2 District shall be members of a Home Owners Association responsible for maintaining collectively all common areas on the Property. The Restrictions shall be enforced by one or more Home Owners Association, which Restrictions, shall among other things, restrict the use of the open space areas for any purpose, but recreation and open space use. Such covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. These covenants shall become part of the deed of each lot or parcel within the development. Such covenants shall be approved by the City Attorney and recorded before the first building permit in the project is issued. PROFFER 18: One Recreational Activity Area shall be designed, constructed and built on the Property between Village "A: and Village "C", substantially where indicated on the Master Plan. The facility shall provide indoor amenities, meeting rooms and active outdoor recreational amenities. No outside recreational fields or sporting areas shall be lighted to permit sporting events at night. This restriction shall not prohibit lighted outdoor swimming pools or lighted outdoor tennis courts provided that any such lighted tennis courts must be setback a minimum of 150' from a residential property line. Outdoor lighting installed for the swimming pools or outdoors tennis courts shall be directed downward toward the swimming pool or tennis courts play area. PROFFER 19: The recreational facility referenced in Proffer number 18 shall be substantially similar in quality, design and character to the exhibit entitled "Community Amenities" as contained in Section VI in the Manual. It is recognized that with a development of this size, detailed building plans may change as the development of Ashville Park progresses. The intent of the renderings is to demonstrate the architectural style and building quality of these facilities. Final elevations for these structures shall be submitted to the Planning Director to assure compliance with this proffer. PROFFER 30: All residential dwellings constructed within Villages B shall contain no less than 1,800 square feet of enclosed living area, excluding garage area, for any one-story dwelling and shall contain no less than 2,100 square feet of enclosed living area, excluding garage area, for any two-story dwelling. PROFFER 5: ASHVILLE PARK L`L.C. Agenda Item 2 Page 5 Except for the modification by replacement of Proffers number" 11", "18", "19" and "30", the remaining thirty- three (33) proffered covenants, restrictions and conditions as set forth in the "2005 Proffers" are hereby ratified and affirmed. STAFF COMMENTS: The proffers listed above are acceptable. The City Attorney's Office has reviewed the proffer agreement dated September 1, 2011, 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. ASHVILLL"PARK L.Q.C. Agenda Itln 2 Pae 6 AERIAL OF SITE LOCATION .t': ASHVILLE PARK L.L.C. Agenda Item 2 Page 7 k 4 w 2 APPROVED MASTER PLAN ASHVILLE PARK L.L.C_ Agenda Item 2 Page 8 H y h 4J amp APPROVED MASTER PLAN ASHVILLE PARK L.L.C_ Agenda Item 2 Page 8 S M VILLAGES A AND B ASHVILLE PARK L.L.C. Agenda Item 2 Page 9 S ems. F �•,, :c. rl f Mow- S M VILLAGES A AND B ASHVILLE PARK L.L.C. Agenda Item 2 Page 9 S ems. F �•,, :c. I i 0 V RECREATIONAL AMENITIES ASHVILLE PARK L.L.C. Agenda Item 2 Page 10 F APPROVED SUBDIVISION PLAT IA • BFq,'"'� 'r ASHVILLE PARK L.L.C. Agenda Item 2 Page 12 9 � APPROVED SUBDIVISON PLAT r ASHVILLE PARK L.L.C. Agenda Item 2 Page 13 Conc Ben Conceptual Development Plan of Central Green Ashville Park- Ranier Village M, T\ Lawn ees Trees PROPOSED CENTER GREEN IN VILLAGE B ASHVILLE PARK L.L.C. Agenda Item 2 Page 14 low RM M DATE REQUEST ACTION 1 5/10/05 Conditional Rezoning (Conditional R-30 Approved Residential District and P-1 Preservation District with a PD -1-12 Planned Unit Development District to Conditional R-30 Residential District and P-1 Preservation District with a PD -1-12 Planned Unit 2/24/04 Development District) Approved Conditional Rezoning (AG -1 & AG -2 Agricultural 001, to Conditional R-30 Residential District and P-1 Preservation District with a PD -1-12 Planned Unit 12/10/91 Development District) Approved 8/27/86 Conditional Use Permit (Borrow Pit) Approved Rezoning (R-3 Residential to AG -1 & AG -2 2/12/73 Agricultural) Approved a Conditional Use Permit Rifle Range) 2 8/12/03 Conditional Rezoning (AG -1 & AG -2 Agricultural a to Conditional R-20 Residential and P-1>� r ZONING HISTORY # DATE REQUEST ACTION 1 5/10/05 Conditional Rezoning (Conditional R-30 Approved Residential District and P-1 Preservation District with a PD -1-12 Planned Unit Development District to Conditional R-30 Residential District and P-1 Preservation District with a PD -1-12 Planned Unit 2/24/04 Development District) Approved Conditional Rezoning (AG -1 & AG -2 Agricultural to Conditional R-30 Residential District and P-1 Preservation District with a PD -1-12 Planned Unit 12/10/91 Development District) Approved 8/27/86 Conditional Use Permit (Borrow Pit) Approved Rezoning (R-3 Residential to AG -1 & AG -2 2/12/73 Agricultural) Approved Conditional Use Permit Rifle Range) 2 8/12/03 Conditional Rezoning (AG -1 & AG -2 Agricultural Approved to Conditional R-20 Residential and P-1>� ASHVILLE PARK L.L.C. Agenda Item 2 Page 15 ASHVILLEPARK LSC, Agenda Itm 2 Pagl.16 Preservation) Conditional Use Permit Open Space Promotion 3. 6/13/95 Street Closure Approved 4. 7/7/09 Conditional Use Permit (Outdoor Recreation and Approved Mulch Facility) 8/10/93 Conditional Use Permit (Firewood Preparation) Approved 8/27/86 Reclassification (A-1 Apartment to AG -1 & AG -2 Approved Agricultural) 4/22/68/ Conditional Use Permit (fairground) Approved ASHVILLEPARK LSC, Agenda Itm 2 Pagl.16 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) Ashville Park, L.L.C.: Wayne Crosby, Member 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) ATC alty Six en Inc 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) A%l5 i�rAn , n��,A a ❑ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 8 2 See next page for footnotes Modification of Conditions Application Page 10 of 11 Revised 911/2004 DISCLOSURE STATEMENT ASHVILLE PARK L':.C. Agenda Ite�rn 2 Page 17 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Sykes, Bourdon, Ahern & Levy, P.C. 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 Gose 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. Ashville Park, L.L.C. By. Wayne Crosby, Member Applica 's Signature P t Name ATC Signature Si tee , I P Owner's Si nat i di Brent thad applicant) rint Name /PJ�rPrs Modification of Conditions Application Pape 11 of 11 Revised 9112004 DISCLOSURE STATEMENT ASHVILLE -PARK L.L.C. Agenda Item 2 Page 18 ATC REALTY SIXTEEN, INC. SECRETARY'S CERTIFICATE 1, Rafaella Carla Corona, Assistant Secretary of ATC Realty Sixteen, Inc., a corporation organized under the laws of the State of California (the "Corporation"), hereby certify as follows: 1. The following is a true and correct extract from resolutions duly adopted by unanimous written consent of the Board of Directors of the Corporation dated August 13, 2008, and no modification or other amendment, rescission or revocation of such resolution has occurred affecting such extract as of the date of this certificate: FURTHER RESOLVED, that, in addition to all authorizations to act on behalf of the Corporation provided in the Articles of Incorporation, By -Laws or other resolutions of the Board of Directors or by statute, all written instruments shall be binding upon the Corporation if signed on its behalf by (i) any two of the following officers: the Chairman of the Board, the President, any Executive Vice President, any Senior Vice President or any Vice President or (ii) any one of the foregoing officers signing jointly with any Assistant Vice President. 2. The following persons are duly appointed and acting officers of the Corporation with the titles shown opposite their respective names as of the date hereof: Adapts, Charles R. Vice President Ash, David L. Senior Vice President Banuelos, Rodger T. Vice President Barry, Brandon Huntington Assistant Vice President Bartok, Daniel C. Managing Director Bartolucci, Janii Vice President Beam, Christopher Charles Assistant Vice President Bcam, Lezlie J. Second Vice President Behrend, Deborah K. Vice President and Assistant Secretary Berg, Cathryn E. Vice President Bernard, Lisa M. Vice President Bernstein, Zachary Samuel Assistant Vice President Bomitz, Jill C. Assistant Vice President Boscoe, Courtney B. Senior Vice President Bradley, Brenda S. Assistant Secretary Briguet, Paul J. Jr. Vice President Brodkin, Dennis Assistant Vice President Burbank, Matthew Davis Vice President Carly, Paul Vice President Corona, Cnrla Assistant Secretary Coxall, Richard W. Vice President Cummings, Donna M. Vice President and Assistant Secretary Curtis, Marc G. Director Dealy, James E. Senior Vice President Deane, Thomas Baker Managing Director DeLnGnrza, Jeannette Senior Vice President Dorrian, Beth Ellen Senior Vice President Dzieweezynski, Heidi M. Senior Vice President DISCLOSURE STATEMENT ASHVILLE='PARK L.I-.C. Agenda Item 2 Page 19 981593 Edwards, Joshun Ryan Assistant Vice President Evans, Christopher Vice President Falack, Raymond Assistant Vice President Falls, Brian M. Vice President Farber, Thomas A. Assistant Vice President Fergerson, Scott David Assistant Vice President Fink, Jeffrey O. Vice President Fisher, Patrick Assistant Vice President Follis, James J. Vice President Gray, Suzanne F. Assistant Vice President Graham, Racheile M. Assistant Secretary Greathouse, James P. Vice President Greenberg, Natalie Alun Assistant Vice President Gustafson, Carolyn A. Vice President Hanson, James E. Vice President Herrington, Benjamin Assistant Vice President Hoffc, Traci L. Vice President Honaker, Bill Vice President Horton, Jnmes A. Vice President Howe, Hope A. Assistant Secretary Jackson, Beverly W. Assistant Secretary Janovsky, Rebecca Assistant Vice President Jeppsen, Stanley R. Executive Vice President Johnson, Lance Director Kasten, Kenneth Jack Senior Vice President Kennerly, Michael W. Director Kreidt, Lori L. Assistant Secretary Lacttner, Nicholas Francis Assistant Vice President Laxa, Rosana T. Vice President Lea -Kahle, Diana L. Assistant Secretary Levy, Richard D. Executive Vice President Loftin, Teresa Assistant Secretary Lozano, Cynthia M. Assistant Vice President Markari, Rovina Secretary Marker, Kathryn Z. Vice President Martin, Anthony Charles Vice President McCool, Michael T. Vice President McCulloch, A T Managing Director McKeown, Ian C. Assistant Vice President McNulty, David Vice President Menlch, Linda Vice President Messenger, Deidre A. Assistant Secretary Miller, Stephen K. Vice President Modclski, Scott R. Assistant Vice President Montgomery, Ryan Patrick Assistant Vice President Morsch, Amber H. Assistant Vice President Moon, Peter Assistant Vice President Moore, G. Elaine Vice President Moore, Susan G. Assistant Vice President Murphy, Dawn Vice President Oiler, Sherry S. Vice President 011iff, Rebecca A Assistant Vice President -2- DISCLOSURE STATEMENT ASHVILLE=PARK L.L.C. Agenda Item 2 Pagb,20 Pagliaso,John Steven Vice President Parekh, Karishmn Ashley Assistant Vice President Patel, Tarok Assistant Vice Presided Pflnum,111, George Vice President Reed, Jeffrey C. Executive Vice President Rolenberg, Ari J. Assistant Vice President Ruedenberg, Patricia A. Assistant Secretary Sadilek, Michael P. Executive Vice President Sammons, Hoilye Assistant Secretary Sartori, Nick Jr. Vice President Sauce•man, Roger J. Vice President Scott, Andrea R. Assistant Vice President Stefan, Sean Mathew Assistant Vice President Steinberg, Jared Austin Assistant Vice President Tan(, Jill Marie Officer Tatum, Mark C. Vice President Valerius, Steven G. Vice President Wniker, Joe L. Executive Vice President Wardlow, Shows) Dec Vice President Weber, David J. Chairman and President West, William L. Vice President and Trensurer Wickes-, Sarah Vice President Wieland, Kevin Vice President Wiliiard, Christopher S. Vice President Wilson, Michael Assistant Vice President Wong, Nancy Assistant Treasurer Zaray-Mizrahi, Ruth L. Senior Vice President and Assistant Secretary Ziblatt, Peter Vice President IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of August, 2011. -3- 981593 Rafadila Marla Corona Assistant Secretary ATC Realty Sixteen, Inc. DISCLOSURE STATEMENT ASHVILLE°PARK Li.C. .Agenda Itei'n 2 Page_21 Item #2 Ashville Park, L.L.C. Modification of Conditional Change of Zoning East side of Princess Anne Road, Village B South side of Ashville Park District 7 Princess Anne November 9, 2011 REGULAR Joseph Strange: Mr. Secretary, will you call the next item please. Al Henley: Yes sir, an application of Ashville Park, L.L.C. for Modification of Conditional Change of Zoning on property located on the east side of Princess Anne Road, south side of Ashville Park, District 7, Princess Anne. Eddie Bourdon: Thank you again, Mr. Secretary. Mr. Chairman, members of the Commission, Eddie Bourdon, a Virginia Beach attorney, representing the applicants Ashville Park, L.L.C. This is a community I have some personal history with as our family owned a substantial amount of the acreage that was assembled to create this community that Stephen Fuller designed, a community that was rezoned back, I believe in 2004. Mr. Nutter handled that transaction of that zoning application. And, it is truly one of the best plans that from a land use standpoint, from a design standpoint, especially, that I think I've seen in the years that I have been doing this, and I've been here all my life. It was the location of the home-a- rama a number of years. Actually, home-a-rama was right when the market collapse began, which is very, very unfortunate, but the beltman is in place, not all the infrastructure is in place. Homes have been built, homes have been sold have been sold, however, as everyone is well aware the property was foreclosed by the lender, Wells Fargo, and the community, and that is what we are here to try keep going, and if you will resurrect, not remain in limbo. The community has been in limbo, and is in limbo. The applicants here have contracted to purchase the remaining developable land from the bank, and as apart of their moving forward to close on the purchase,and bring the development back to life, they have requested three modifications to the modified proffers that were approved by the Council in 2005. Those three are summarized in your report, and you all were briefed on them this morning. The removal of the age restriction in Village B, the removal of the senior clubhouse to be constructed in village B, which will no longer a senior's village, and they will, however, will continue to construct the larger recreational Item #2 Ashville Park, L.L.C. Page 2 amenity and community center that is shown on the plans, and they will replace where the senior club house was going to be in the Village B community with a manicured open space, and some benches, but it will additional open space. This development already has an excess of 50 percent open space, beautiful linear parks that are shown on the plan. Some were put into place, not all have been developed obviously. There are changes. They are either one story or two-story units that are permitted within Village B. No change in the character or the quality of those structures as proffered. But the two-story unit, that we are requesting, is the square footage of living space be reduced from 2,400 to 2,100 square feet. But that is only in this village, on the lots that are in this village that are 7,200 square foot lots. The prices we anticipate these units selling from in Village B will between $350,000 and $470.000. The transition area provides for a target average price of $400,000 per-unit, and that will still be maintained with the continuance of this development. So, it is not going to be a situation where the average price of the $499 homes that this development has within at this point probably will be, who knows? It can be 10, 15, 20 years. We just know how quickly. Hopefully the market will come back a little sooner than that. It is what it is. And we all are dealing with that. This development plan that was approved that Mr. Fuller created is a great plan. It was a great plan, and is still a great plan, and this is a community that will be a great community. It is just going to take a lot longer than people had originally anticipated it would take. Proffers again, are extensive these changes, in my view relatively minor, but I know there was a lot of dialogue this morning regarding the age restricted community. Staff's position, we certainly agree with their position. The discussion this morning centered on Sherwood Lakes, and we heard about this yesterday for the first time, which is a bit of a peculiar position to be put in, from my standpoint , since I represented Sherwood Lakes, but staff is and has been consistent in its position with regard to Sherwood Lakes that the 60 age restricted units originally approved in that community represented two units per acre for the age restricted in the Transition Area, and in their view the Sherwood Lakes Community did not have sufficient developable acreage, that even with that credit of the two for one, they still exceeded one unit per acre by a significant margin, and when we came back and modified and removed that age restriction, in staff's view it still exceeded one unit per acre because they did not consider the borrow pits to be developable acreage, and they have been consistent in that position all along, and that is the precedent for this. And I certainly believe they have been and are consistent in their view, and their interpretation that does set a precedent for this proposal. Because unlike their interpretation of Sherwood Lakes, this property has 453 acres and 499 units or 1.11 unit per acre with the age Item #2 Ashville Park, L.L.C. Page 3 restricted. The age restriction coming off will put them at still 1.11 per developable acre per acre, so there is a difference, if you want to argue it, of 46 units if you take the age restriction out of play. The fact though is that in Ashville Park, given the type of development it is, given the amenities, and the cost, I think is unassailable that far in excess of 46 units will be occupied by individuals 55 or older, without children living there. In fact, I would predict that the amount would be upwards of 35 percent of the homes, when it is ultimately developed and completed, which again, is going to be many, many more years, but I would say 35 percent, 170 plus or minus units will be 55 and older as a matter. That is the problem that exists, and we have all come to understand it better, the market for restricted units, ones that you cannot sell to anyone other over 55 is extremely soft. It is extremely soft. The Villages at West Neck is a beautiful community for a development, but the ability of the folks who have bought homes there to sell their units, history has shown to be very, very difficult to do so. And hopefully that will change. This economy is going to change, and that situation is going to change. But the reality of it here is we got a community that has a great potential and is in distress. We have people who come to purchase the property, who have a contract to develop the property, and are seeking to move forward with the development as it was originally designed. These changes, like I said are minor, and I think the benefits far, far outweigh any perceived detriment. And I do think it is consistent with the precedent that has already been set. And with that, I will simply repeat; no change in the Stephen Fuller design layout for the project, for the community as a whole. No change in the home styles. The lot sizes, the open spaces, parks, etc, and a little bit of an increase because we're not going to build the senior clubhouse. We were proposed with the modifications not to build the senior club house. And with that I'll be happy to answer any questions that you may have. Joseph Strange: Mr. Bernas has a question or you. Jay Bernas; You heard in the informal session, I had some questions about the whole density issue, and the calculation. I think the foundation of my problem is what is this percent that has been set? I didn't get a real good answer as far as is the precedent that if you look at the age restricted housing that you should do a 10 percent density reduction, which is what Sherwood Lakes did. I mean it was 60, they dropped 6. Is that the precedent? So, in your opinion that is the precedent. Eddie Bourdon: The staff's position, and I say this not to be derogatory, but I did Item #2 Ashville Park, L.L.C. Page 4 obviously argue that the borrow pits were developable area. Okay, for Sherwood Lakes. I don't understand why I am speaking the way that I am speaking. Staff position has been consistent throughout that the borrow pits were not developable land. And when you look at it that way from day one and all the way through the removal of that restriction, Sherwood Lakes exceeds the one unit per acre today, exceeds one unit per developable acre by a considerable amount. And they have always considered the age restricted component of Sherwood Lakes at 2 for 1 but even so they still exceed the one unit per acre overall density that is permitted in the Transition Area. So, their position is that once you remove that restriction and you remove the six units, which were removed because the fact that we had the commercial development in the front that occupied six acres and shouldn't have been given credit for residential. So, the residential at Sherwood Lakes today is one unit per acre if you consider the borrow pits now lakes to be developable, which I argued were and are, and I believe that was the right decision. But I'm just simply saying that is what staff's position is, and I agree with it. So, the point there is they have always been above it. This has barely been above it. In fact, 1 tenth of the a percent above at 46 would be the difference of 456 units on a much larger development 453 acre development that is going to take, unlike Sherwood Lakes, which was developed successfully in a very short period of time. This development by the time is over with maybe two decades long before it is over with. It started in 2004 and we are at 2011 today. Joseph Strange: Did you understand what he said? Jay Bernas: It sounded like apples and oranges to me. Eddie Bourdon: We just heard aout this concern yesterday, and frankly, I understand that some of the thinking that goes into it, but I think is is comparing apples to oranges. I do think that is the case. Joseph Strange: Mr. Ripley. Ronald Ripley: And I agree with you, this Stephen Fuller plan is exceptional. When it came in it was like a whole other level of being reached. I think people are very happy with that plan. I am very sorry that it stalled, but that's the market and that is what happened. If you were starting over again and wiped the slate clean, and walking in the door and not having senior housing involved, or restricted housing, then you will be looking at 252 units. Item #2 Ashville Park, L.L.C. Page 5 Eddie Bourdon: If you were coming in. Well again, the transitionary rules at the time, and we haven't gone back and readdressed, and I'm not suggesting that it is necessary they should be, but the transitionary rules at the time, and still today are one unit per developable acre, up to 2 for 1 for age restricted, which they didn't take full advantage of this in this plan either. Okay. I don't want to get to complicated. If you take the 169 age restricted units and you back it out, they are below overall, they are not at one unit per acre plus 2 for 1 for the developable age restricted. They are well below that. Ronald Ripley: I stated this morning, and I'll state it again, I want to see this project get kick started, and I think you have people coming in or stepping in the shoes here, and they are trying to get it going, probably acquired with some anticipation of so many housing units in there and they are trying to achieve that, and I feel respectful of that. However, they are also asking to reduce major expenses to build a clubhouse, which is significant, and they haven't really started this section here. It just seems like to me that the applicant ought to be mindful of how these additional units were achieved. I think if you went up the ladder to Council, this is going to get some attention, and I would be hopeful you could find some sort of medium ground that is acceptable to them, and I don't know how the other people feel here, but from my point of view acceptable to me, just speaking for myself. I think it might make more sense and it might fit in better with the neighborhood and the whole area. Eddie Bourdon: Mr. Ripley, I certainly appreciate your perspective, as I mentioned earlier. The first that we were of this, you know, concern was yesterday. I have discussed it my clients. They will be evaluating where they might be able to make modifications to, with that intent to do whether that, and again, you start playing with the numbers, which I was doing last night, you can do it all the way to put age restrictions on few of the units and reduce a few. There is a number of ways to look at it. They are going to do that between now and us getting to City Council, and certainly it is the territory for, but we may be in a position to reduce the number of units. We may be in a position to have age restrictions on a few number of units, but 169 age restricted units. The market is not there for them. I won't be there for them. There might be the ability to put age restrictions on a lesser number of units. Those are a couple of things we are going to be looking at. They are going to be looking at between now and when we get to City Council, and we will work with the district representative and other members of council to try to bridge a gap, if the gap exists in their mind. Item #2 Ashville Park, L.L.C. Page 6 Ronald Ripley: Why can't we do that now? I don't understand. Eddie Bourdon: We may not be able to do it at all. This point, the reality is we don't believe we can, but I have encouraged them to look at it to see if there are ways that they might be able either reduce the number of units or permit age restrictions to stay in place on a certain number less than the whole that is contained within the development, which, again, there are a lot of ways to potentially get to 46, but is like a Rubik's Cube, in 24 hours or 36 hours there is no possibility of figuring that out. We're not sure that it is feasible or that is something they are going to be able to do, but they are willing to try to do it if there is an ability to do it. Ronald Ripley; Well, I think it would be prudent to try and do and do that now versus maybe getting negative votes versus maybe Council taking it all the way back to one per acre. I don't think anyone wants to do that, and I certainly don't want to see that. I am just saying I don't know why we can do that right here. Have you discussed this with the applicant? Eddie Bourdon: I have. And their response at this point is we can't do that, but they are willing to look and see if there might be a way to restructure it and do something that gets. You all talked this morning about Sherwood Lakes. They dropped six units. Again, there is no formula to that, like I said it had to do with the commercial property out there. There is no precedent other than that you drop any units which really isn't a precedent because of the whole different apples and oranges that situation versus this situation. What I am hopeful of that now knowing of this concern, and if that concern is not shared by your professional staff, if it is shared by members of City Council, that we will work with them to try and bridge any gap they perceive exists. That's the best that I can do to keep this project moving, to get that neighborhood back up and moving forward. Joseph Strange: I do want to remind everybody that we do have one person in opposition. Robert Thornton: I got a question. There are a 169 units approved that are all age restricted. Is that correct? On this Village B? Eddie Bourdon: Yes sir. Item #2 Ashville Park, L.L.C. Page 7 Robert Thornton: How much land sits underneath Village B? How many acres? Eddie Bourdon: I believe it is 190 something. Robert Thornton: So, if you do the math you are less than a unit per acre on Village B today as we speak. Eddie Bourdon: Yes sir, but I think we have to look at the entire community, because if you look at the entire community by that rationale, the rest of the community would be over one unit per acre. That is just the way the land was divided. This village just has more of the open space in it, the way the Sandlers did the division of the property. I'm not making that argument simply because I do think we do, and it is not simple, but try to keep it as simple as possible, we have to look at the whole of the project. Robert Thornton: By your own admission, you don't know long it is going to take for the rest of this to get built out. Eddie Bourdon: I don't' think by anybody's admission. Robert Thornton: What's there and what's been approved as you get into the marketing of the rest of that stuff, you may be back here for every phase because it is not practical for the market. I'm trying to get to the point where you're not using any real density credit for this piece anyway, it seems to me. Eddie Bourdon: I agree, but at the same time, my clients are hopeful, optimistic they won't have to come back again, but we don't know. Just like back in 2004, 2005, they didn't expect to come back either, but they did. But the idea at this juncture is to try and get the community because they share our views. It's a great, great potential asset, and it will be, but we need to to get it back up and running, and this provides an opportunity within the confines of the current market for it to happen and that activity we think and hopefully and with turning around of the economy and things moving forward lead to the ability for the rest of the development to be developed as it was originally proffered. That may not happen but that is certainly what we hope will happen, and that is what is an effort to engender or to facilitate. Item #2 Ashville Park, L.L.C. Page 8 Robert Thornton: Well, I am in favor of what you're doing. I think moving the age restriction off of these units is a marketing issue. You can't sell them. You already said you can't sell them. If we want help your developer to get this up and running, the first smart thing we can do is remove the age restriction and let them go to the market and see what is out there. I'm for doing this. I am not opposed to what you're doing. I'm not hung up on the density because in the grand scheme of things you're at less than one per acre anyway. Eddie Bourdon: On this piece that is correct. What I did not want to open is the Pandora's Box, if you will, we will do that but you're going to have to come back later. We hope not to do that. That is not necessarily off the table. Robert Thornton: We'll deal with that then you come back. If you want to come back, you come back. I don't think that is a problem because who knows what was done when you get ready to do it may not make any sense and you may need to come back. I'm not going to hold that against you. Eddie Bourdon: I can't rule that out. I certainly can't rule that out. Robert Thornton: I'm thinking that is a good thing to do and get the project jump started, and I don't think if we're off 20 of 30 units out of 500 plus or minus units is grossly insignificant. Eddie Bourdon: That is my view that I think it is dominimus, but that is dialogue, and that is no way to diminish this body. I appreciate teh dialogue that was had this morning and is being had now. We certainly agree with staff. We think it warrants your approval, but if the majority of Council wants to see some modification, I've at least, and my clients are aware that potential exists. I think that is the best thing we can do at this point moving forward. I hope. Al Henley: We have a speaker of opposition. Steven Berman. Stephen Berman: Good afternoon Chairman, Commissioners. My name for the record is Stephen R. Berman. I live at 1685 Flanagans Lane, Virginia Beach. I've been in the Virginia Beach area for about 35 years, and this is the first time I've been to the Planning Commission so thank you for allowing me to come and address you this afternoon. I would like to start my comments about President Reagan, and President Reagan said, "here we go again." I've been living on Item #2 Ashville Park, L.L.C. Page 9 Flanagans Lane, which runs by the property that Ashville Park is located. I had an opportunity to talk with several Flanagans Lane residents as well as Heritage Park and also people along Sandbridge Road, and even people over at the West Neck Village. I've had an opportunity to talk with them. I cannot speak for all of these other people. I'm not quite sure what their real appetite is from time to time, but I can only speak for my wife and myself, and we believe this change is not minor, and we oppose changing the Ashville Park Village B of 169 age restricted to single-family homes. Many of you may not be aware of it, but they designed this in 2004. There was one village that was at the far extreme and so when they sold it in 2004 to the next developer who came in requesting additional conditional changes, then he decided to move, that other set of homes in the village which were senior citizens or age 55 and above over to the front, and that is how that thing grew to 169, is that they moved those from the back over to the front. That was done in 2005. I had an opportunity to talk with all of the developers and as a matter of fact, I spoke with the developer this morning for this change request. I asked him two questions. The first question I asked is what is your motivation for changing this? And he said it is the values today. I said I'm sure. I don't understand what you mean by values. And he said well people at the age of 55 can't get loans. They can't buy the homes. We can't sell 55. They can't get the loans. I said I don't think that is a good answer. I said people at the age of 55 are the people who have most of the money today in our economy. I said you have not just people moving. We are not trying to attract people from West Neck or other lcoatiosn, we got people coming from all over the country that want to reside in beautiful Virginia Beach, so they are coming to this area. And these are people who have already sold their homes. When I talk to people at West Neck, they love the facility. If you driven through it is a gorgeous facility. It is not like the facility over at Sherwood Lakes and we shouldn't be comparing Sherwood Lakes with this because is a whole different project. The philosophy, the vision, the development of this that happened back in 2004 was just monumental. The City Council thought this was the greatest idea then we began to chisel away and make all of these changes. And I think the changes that you've been talking about, and the concerns that you have are the concerns that we have in terms of infrastructure issues, the school issues. As a matter of fact, and I don't know where they got this from, they said it is only going to increase a 100 students in the three different elementary, middle and high school. If you got 169 homes in there, you got to look at the statistics and the average. At least two people to a family and at least two children for every family. That is far more than 101 is that going to be going to those schools. The impact that it has on the schools. I think the age restriction Item #2 Ashville Park, L.L.C. Page 10 and the second question I asked him and then I'll be quiet. The second question is "what guarantee an you give me?" Obviously he said he couldn't give me any guarantee that you're not going to go then back to the planning Commission and back to the city when you move from B to C to D to E, in terms of the development. He said, he started thinking about some things that were going to change back in the future. So, I agree that something has to be done with that development. It has been sitting there idle. It is beautiful area, but it is not like across the street where they did away with the age restriction. This age restriction, there is a need for people at the age of 55 and above that are looking for homes today. I just like to ask you to think about it, and recommend it differently that there needs either to be more study done this, as some of you may have indicated already, or they go to the City Council. I will be at City Council, again, talking with them to encourage them not approve this change. The design was beautiful. This was a beautiful development as it was laid out by Stephen Fuller, but each developer came along and made changes. What's going to happen if this developer, when they build out this section B, then decide to sell it to another developer, who then comes back before you, and says we got to have some changes? I think the model, the vision for this particular development was critical at the time it was presented, and it is still critical today. We need the development. We just need to look at doing the right thing. So thank you. If you have any questions? Joseph Strange: Are there any questions? Jeff Hodgson: I got one Joseph Strange: Go ahead. Jeff Hodgson: I think just because you remove the age restriction doesn't mean you're not going to have 55 and older moving into community. Nobody knows. You may take away those restrictions and have of the people who buy those homes might be 55 and over or maybe 10 percent. I have no idea. But you will still have the opportunity for those who want to move in there at any age at that point. Steven Berman: I think that we find with age 55, and maybe I'm only speaking for myself, because I've gotten a lot older and that is when people begin to downsize, they don't want a lot of children around them. Okay. So, you're not going to have many 55 people moving into that area you're talking about, and another thing Item #2 Ashville Park, L.L.C. Page 11 about the recreation facility that was designed primarily for the people who were living there. For the relationship the commorodity that they have already demonstrated at West Neck. West Neck is beautiful. This was suppose to be even better than West Neck. But now we're comparing it to something less than what it is intended to start with. Joseph Strange: Mr. Redmond. David Redmond: What was your name sir. Steven Berman: My name is Steven Berman. B E R M A N. David Redmond: Thank you. Steven Berman: Thank you. Joseph Strange: That is your question? David Redmond: That was my question. I thought it was simple. I could make one up if you would like. Joseph Strange: Any other questions for Mr. Bermas? Chris Felton: I just have a comment. In agreeance, and I believe you said I yourself. I think most of us are thinking this is the jumpstart, the kick start that needs to get this land being developed. I think you said it yourself there is nothing to say. They all come back a couple of years from now and Village E could be 55 and over. That is where they move this part into that development. That is in their head also that could happen in the future. Steven Berman: Unfortunately the scheme of things is that people moved into Heritage Park, and I can't speak for them, but they bought with this concept of what this new development was going to be, so they have a major investment into that development. So, I guess if I lived there, I live right on the border on Flanagans Lane, but if I lived there I would be very much concerned about it. Now the other thing, getting back to the age of 55, I honestly believe that 55. I think there was an article in the paper just the other day that said that people over the age Item #2 Ashville Park, L.L.C. Page 12 of 55 had much more money than younger people. That is obvious. But I think there is a need for the age of 55 in that particular community. Joseph Strange: Are there any other questions for Mr. Berman? Thank you for coming Mr. Berman. Steven Berman: Thank you for your time. I appreciate it. Joseph Strange: Sure. Eddie Bourdon: Mr. Chairman, I would too like to thank Mr. Berman for his comments. I obviously wasn't privy to the conversation that he alluded to that he had with one of my clients this morning, but I think there was a misunderstanding that he came he came away from that conversation with regard to the fact. We absolutely know that he is absolutely correct that there will be a significant number of individuals in their 50s and above who reside in this community, who buy homes in this community. The problem is with the restriction on the title to the property that it can only be sold to someone 55 and older and only be resided in by people 55 and older. Again, the provision for that 120 days during the course of the year. That is the problem, from a financing standpoint it is becoming more and more difficult because of the ability to market those age restriction units is so, so soft. And we are not suggesting in anyway shape, manner or form. In fact the opposite. We think there will be a sizeable percentage of the residents in this community, at the time it is finally built out that are 55 and older. Again, and I said earlier, 35 percent is at a minimum. As we talked about he mentioned the guarantee we won't come back. The intent is not to, but there is no way anyone of us can guarantee that. The only time this has been back previously was for a modification that was totally consistent as this is with the Stephen Fuller design of this community. The Stephen Fuller design of this community wasn't predicated on the units being 55 and older and restricted as such. It is the design of the layout of the community. The design of the architecture, and the homes, none of which is changing with this proposal what so ever to the extent there is something to argue with, to disagree about. Traffic and students, those are the issues that are applied, but this is not a change in anyway of the Stephen Fuller design of this beautiful community. As I said before will be a beautiful community. It is just going to take longer to get it completed. And lastly, the experience has been, and yeah there are some folks who are 55 and older who would prefer to be in a community where there are children, but there a significant percentage that don't find that to be Item #2 Ashville Park, L.L.C. Page 13 attractive, and we had situations that I'm aware of where folks of the Village of West Neck have sold and move elsewhere in the Transition Area because they wanted to be in communities where there was more diversity of ownership. It is not for everybody and that is really the point. Thank you all. Joseph Strange: Any other questions for Mr. Bourdon? Okay. We will open it up for discussion. Donald Horsley: I guess I'll start. I guess longevity is proven in some aspects. The people that were on here remember 2004 & 2005 when Ashville Park and the plan came in, and I will just tell you what my wife told me when she saw the plan when I took it home that night. This is really nice. I wouldn't mind living here one day. It was a beautiful plan. It really was. It was something we were looking for in the Transition Area for a long time, and we got this plan and it was really, really a great thing. Ron, you were on then. He and I and Joe were probably on here all at the time it was done. I don't know if anybody else was. I don't think so when this plan was originally approved. I'm reading between the lines and it was Ron's comments, and kind of my thinking a little bit too, is that we gave in on the extra density when they put this age restricted in there. We gave extra density for that, and anybody that is in business and has made any long term plans, and things don't always work out exactly like you plan, and changes have to be made down the road, and that is where the successful ones are willing to make changes, and continue to progress. So, I guess that is kind of what we've been thinking about back in 2004, we gave extra density to put age restrictions in because that was the going thing at that time. We need to protect places for these 55 and older people to live, which according to Mr. Berman they have more money than the other folks. I don't know. I'm in that category, but I can't reach that conclusion yet, Mr. Berman. But I'm looking forward to it. So, I guess that is what Ron, and myself are wrestling with. We gave them at extra density to get this restriction, but now we may not need that restriction. Maybe we need a little bit of that density back or either maybe we need to put some of that restriction in somewhere else. I know I've been riding by for the last 4 or 5 years and seeing that property kind of desolate. And it needs a revitalization some kind of way, and we've got some investors willing to go in there. I guess I'm willing to allow some concessions myself to my original thinking to jump start that project. It is in the Transition Area, and that is what it is a Transition Area, and we need to get that area going again. We got a lot of good things in this city, and we need to continue to get things progressing again. All and all, I guess wrestling with that density thing with Item #2 Ashville Park, L.L.C. Page 14 Mr. Bourdon a little bit. I got faith in Mr. Bourdon that he will try between now and Council say "we need to do something" to help suffice this density and with his client. I got faith that he will try offer up something at Council to do that. I'm not ready to offer a deferral, because I got faith he is going to try to get something like that accomplished. We will see what happens between now and Council. Those are my comments. Mr. Berman, I sympathize with you and I know where you're coming from, but like I also understand we got a lot of opportunity out there. It hurts me to see prime farmland change use to something else. This is some prime farmland, and it has laid there doing nothing, and I don't like to see that. You know, if we decided to build it up with nice homes, lets' go ahead and get this project jump started. Let it do what is suppose to do for our city. Joseph Strange: Mr. Redmond. David Redmond: Mr. Berman, I asked your name because I'm forgetful, and I hate saying that guy from Flanagans Lane, so that is why I asked you. You make a number of good points. I think what we are faced with here is do we leave in place or do we remove a mechanism the age restricted housing that is fundamentally not working. I don't think it makes sense to leave in place a square peg that has fit into a round hole. Developments are coming and they are trying to remove the restriction because the project itself doesn't have the greatest design. Mr. Berman said there are a lot of people age 55 who are looking for just this kind of place to live, but there is not demand being recognized. So, we're getting request to remove the restriction. I don't know why I would make sense to try and force a kind of product into the market for there is very weak demand. This application in a number of ways is recognizing some changes in the marketplace that are likely to be very long lasting. For a while we sort of thought that was a spoonful of sugar with certain things. I remember when we considered Renaissance Park on the old Spence Farm many years ago, there was this same debate about density. Is the time too dense? I was kind of surprised at the time because someone said put some age restricted housing in there because that would make it somehow less dense and that was kind of the way we would kind of address the density. I don't know forcing those market distorting kinds of solutions is a good way to go, and I think we're recognizing that today when folks come to us and say we got to remove these restrictions. They just don't work forcing some sort of mechanism like that is based on market reality. So, I think it is a good thing like Bob said that we remove that age restriction, if it is simply an impediment to development going forth. I'm untroubled very frankly by the density part, and I thought about it now since Item #2 Ashville Park, L.L.C. Page 15 several hours since we met this morning. As I said this morning, this is an extraordinary high quality development whether there are people 55 and older or 25 and younger, there are going to be people coming and going from this neighborhood. I don't have as big a problem with density like this when obviously of high quality. I am untroubled by it. I don't have a problem to reducing the house sizes from 24 to 2,100 square feet. Again, that's the recognition of what people are telling us in the market. That is what people are requiring in terms of sizes of somewhat smaller sizes. So, to me it makes some sense. If others felt strongly about it and felt like we had to take some other course of action, I'm not close minded about. I don't really find anything terribly objectionable about this. Down the road, you never know. There might be something where they might want to change their plan. I am going to be very vigilant about that. And, this is as everybody says is a wonderful plan. You hate to see it change too much. It doesn't strike me as a big change. The clubhouse, by the way, it is not age restricted. The clubhouse was there to serve the age restricted community. If you don't have the age restricted community, I don't see why you need the clubhouse and the replacement of the green spaced component is a terrific addition. Unless something changes in my mind, I'm probably going to support it in the end. Joseph Strange: Mr. Ripley. Ronald Ripley: Dave, I don't think we should mess with the ordinance at the moment, because I think the market is out of balance. I think there is a place for incentive for senior housing in the future. This is a section of the property that is up front can be developed readily. I think it has a restriction on it, and it is a place in time that makes it not developable as planned, which is age restricted. And, so removing it is the logical thing to do. I made it real clear I'm very supportive of the project itself. I just disappointed that the applicant is not willing to say that we're willing to do this because we're making these changes. They are saying we're making these changes, we're not willing to do anything. That is what they've said. I going to vote against the application, and I sense it is going to pass. That is what I sense here and that is fine, and I think it should move on up to Council. I think Council will talk with the applicant. I think there will be some movement between here and there, but I think I want to emphasize my point at the bottom of the boat against it. Joseph Strange: Mr. Bernas. Item #2 Ashville Park, L.L.C. Page 16 Jay Bernas: I'm onboard with Commissioner Ripley. I think the one thing I see about this density and this whole age restriction is part of the reasons they got the increased density is that theoretically when you're over 55 you don't drive around as much, so there is less demand on the roads. With less kids in school, there is less burden on the school system. And so by now just removing this age restriction and not making any accommodations or any balance of this density argument, so now people around the city, the other taxpayers are going to have to bare that burden of paying for this additional people on the road, these additional kids in the school. That is really my bigger argument. Whether or not Mr. Bourdon is able to come to some agreement by City Council, and he probably will, today, without hearing a number, this issue to me is too big to just give a blanket approval. I'm going to vote nay as well. Joseph Strange: Is there any other discussion? Before I get a motion let me say that I was here in 2004. There was a lot of discussion about the age related part of this. Part of it was traffic. I mean, we had opposition because of traffic out there at that time, and it was soaked up because of the age restriction. That would alleviate some of the traffic problem. We're living in a different environment. Sherwood Lakes didn't come to us and say reduce the number of units that we can build and sell because they wanted to reduce the number of units, they wanted that age restriction off. Obviously because they thought it would help them sell units. In 2004, it was pretty easy to sell a house. Everybody wanted to buy a house, and we could put all kinds of restrictions on things and people would go along with it because the market was so heavy that people were willing to just about anything just to be able to build another house. That doesn't exist anymore. We live in a different environment today. I think they should voluntarily try to take some type of reduction on this, okay. Practically speaking, I'm sure they got a little bit of a deal on the land based on what they originally paid for it. Number one, I think they should take some kind of reduction, but I do agree with Mr. Horsley, that even though I hate to pass along this to City Council, I think it is something that can be taken into consideration between now and City Council. When it came to us, it was approved by the staff the way it is. So, it came to us for a recommendation for approval. So, I don't feel bad about passing this on to City Council and let them work this out with the developer, if they want some type of reduction. So, if there is a motion to approve, I will be supporting it based on what I just told you. Yes Mr. Redmond. David Redmond: I want to make one point, and then I'm going to make a motion. Item #2 Ashville Park, L.L.C. Page 17 To this point of demand that I mentioned, none of us are in the business of trying to sell houses or help people sell houses. We take serious our commitment to sound planning principals and sound land use. When I speak at least of where demand is and where demand isn't, I see demand as reflective of community needs. Demand reflects what our community is looking for. That is sort of driving me when I get at that. I agree with Ron that there is a place for senior housing. I'm not suggesting there isn't a place for senior housing but we're seeing that by virtual of lack of demand, we're trying to be pulled out of the market and that is reflective of what the community needs and doesn't need in some places; and they are showing that with their feet. I think we have an obligation to do what is in the best interest of our community, and what our community wants, and what our community needs. And, the community if there is an enormous demand for something we ought to try to do more of it, if there is not much demand for something and it is an impediment, then I think we need to do less of it. That is sort of the context which I put that. With that said, Mr. Chairman, I would move approval of the application. Donald Horsley: I'll second it. Joseph Strange: A motion by Mr. Redmond for approval and seconded by Mr. Horsley. If there is no other discussion, we're ready to vote. AYE 9 NAY 2 BERNAS NAY FELTON AYE HENLEY AYE HODGSON AYE HORSLEY AYE LI VAS AYE REDMOND AYE RIPLEY NAY RUSSO AYE STRANGE AYE THORNTON AYE ABS 0 ABSENT 0 By a vote of 9-2, the Commission has approved the application of Ashville Park, L.L.C. Item #2 Ashville Park, L.L.C. Page 18 Eddie Bourdon: Thank you very much. We will work with what we talked about. 1� i a MS S OF OUR NA" In Reply Refer To Our File No. DF -8174 TO: Mark D. Stiles FROM: B. Kay WilsonqP CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: November 29, 2011 DEPT: City Attorney DEPT: City Attorney RE: , Conditional Zoning Application; Ashville Park, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on December 13, 2011. 1 have reviewed the subject proffer agreement, dated September 1, 2011 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 FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS ASHVILLE PARK, L.L.C., a Virginia limited liability company ATC REALTY SIXTEEN, INC., a California corporation TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 1St day of September, 2011, by and between ASHVILLE PARK, L.L.C., a Virginia limited liability company, party of the first part, Grantor; ATC REALTY SIXTEEN, INC., a California corporation, 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 land which is hereinafter referred to as the "Property" located in the Princess Anne District of the City of Virginia Beach, Virginia, containing approximately 196.516 acres. The Property is more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference; and WHEREAS, the party of the first part as contract purchaser of the Property has initiated a modification to a conditional amendment to the Zoning Map of the City of Virginia Beach, by petition addressed to the Grantee so as to modify conditions to the Zoning Classification of the Property; and GPIN: 2413-16-5292 Prepared By: R. Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 WHEREAS, the Grantors have requested Grantee to permit this modification of the previously Proffered Covenants, Restrictions and Conditions dated March 1, 2005 and recorded in the Office of the Clerk of the Circuit Court of the City of Virginia Beach, Virginia as Instrument #200505120072090 (hereinafter "2005 Proffers"), to reflect an amendment applicable to the land use plan on the Property; and WHEREAS, with the exception of those original Proffers numbered "11", "18", "19" and "30", it is the Grantors' intent to reaffirm all of the covenants, restrictions and conditions set forth in the 2005 Proffers; 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 change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantors' proposed modification of conditions to the zoning gives rise; and WHEREAS, the Grantors. have voluntarily proffered, in .writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed modification to the existing zoning conditions with respect to the Property, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted, which conditions have a reasonable relation to the proposed modification and the need for which is generated by the proposed modification. NOW, THEREFORE, the 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 fro cuo. for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following, amended declaration of conditions and restrictions which, along with the unchanged covenants, conditions and restrictions set forth in the 2005 Proffers shall restrict and govern the physical development, operation, and use of the Property and hereby covenant and agree that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all OA parties and persons claiming under or through the Grantors, their successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. Proffer numbered a as set forth in the 2005 Proffers is deleted and the following covenant, restriction and condition is proffered in its place: ii. The Grantors shall record a Master Deed of Covenants, Conditions and Restrictions ("Restrictions") governing the Property. All land owners within the PDH -2 District shall be members of a Home Owners Association responsible for maintaining collectively all common areas on the Property. The Restrictions shall be enforced by one or more Home Owners Association, which Restrictions, shall among other things, restrict the use of the open space areas for any purpose, but recreation and open space use. Such covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. These covenants shall become part of the deed of each lot or parcel within the development. Such covenants shall be approved by the City Attorney and recorded before the first building permit in the project is issued. 2. Proffer numbered 18 as set forth in the 2005 Proffers is deleted and the following covenant, restriction and condition is proffered in its place: 18. One Recreational Activity Area shall be designed, constructed and built on the Property between Village "A" and Village "C", substantially where indicated on the Master Plan. The facility shall provide indoor amenities, meeting rooms and active outdoor recreational amenities. No outside recreational fields or sporting areas shall be lighted to permit sporting events at night. This restriction shall not prohibit lighted outdoor swimming pools or lighted outdoor tennis courts provided that any such lighted tennis courts must be setback a minimum of iso' from a residential property line. Outdoor lighting installed for the swimming pools or outdoor tennis courts shall be directed downward toward the swimming pool or tennis courts play area. 3. Proffer numbered 19 as set forth in the 2005 Proffers is deleted and the following covenant, restriction and condition is proffered in its place: 19. The recreational facility referenced in Proffer number 18 shall be substantially similar in quality, design and character to the exhibit entitled 3 "Community Amenities" as contained in Section VI in the Manual. It is recognized that with a development of this size, detailed building plans may change as the development of Ashville Park progresses. The intent of the renderings is to demonstrate the architectural style and building quality of this facility. Final elevations for the structure shall be submitted to the Planning Director to assure compliance with this proffer. 4. Proffer numbered 3o as set forth in the 2005 Proffers is deleted and the following covenant, restriction and condition is proffered in its place: 30. All residential dwellings constructed within Village B shall contain no less than i,800 square feet of enclosed living area, excluding garage area, for any one-story dwelling and shall contain no less than 2,100 square feet of enclosed living area, excluding garage area, for any two-story dwelling. 5. Except for the modification by replacement of Proffers numbered "11", "18", "19" and "30", the remaining thirty-three (33) proffered covenants, restrictions and conditions as set forth in the "2005 Proffers" are hereby ratified and affirmed. The above conditions, having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a 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: 11 (i) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantors and the Grantee. 5 WITNESS the following signature and seal: Grantor: Ashville Park, L.L.C„ a Virginia limited liability company By STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument w961 2oii, by Wayne Crosby, Membe of company, Grantor. Q1 My Commission Expires: Notary Registration No.:_ C:7 (SEAL) me this ist day of September, '., a Virginia limited liability -------------- JOHN M. NAPIER Notary Public Commonwealth of Virginia Reg. # 324593 My Commission Expires Oct. 31, 2015 WITNESS the following signature and seal: Grantor: ATC Realty Sixteen, Inc., a California corporation STATE OF :3: L Lz' Aj 0--c7S CITY/COUNTY OF �`d e it;-, , to -wit: The foregoing instrument was acknowled d b re me this 2 '�l day of 2011, by r' G u , .�%. of ATC Realty Six een, Inc., a California corporation, Grantor. AJACAA2L- Notary Public My Commission Expires: Q 19 I '-)--u a Notary Registration No.: 5 9 D `151 7 SEAL 'C IAL JI�I- C• BONITZ NOTARY PUBLIC, STATE OF ILLINOIS w COMMI SIO.ON E PIR`` `S WITNESS the following signature and seal: Grantor: ATC Rqalty Sixteen, Inc., a California corporation STATE OF TEXAS COUNTY OF _ QT 12 F `-I , to -wit: The foregoing instrument was acknowled ed before me this 9-4 day of CSGl3 e- ' 2011, by `� r GRRFP '3FN�C--�►A . Ni2 CC– p E 6;;nFN�T, of ATC Realty Sixteen, Inc., a California corporation, Grantor, i Notary Public My Commission Expires:2 014 - Notary -Notary Registration No.: ASISKUMAR RAMANBHAITPATEL °a°•' Notary Public, State of exas My Commission Expires July 18, 2016 11 EXHIBIT "A" Those certain pieces or parcels of land, belonging, situate, lying and being in the City of Virginia Beach, Virginia, being known, numbered and designated as "RESIDUAL PARCEL A -7-A" as shown on that certain plat entitled, "RESUBDIVISION OF RESIDUAL PARCELS A -2-A, A -3-A, A -4-A & A -5-A AND STREET CLOSURE OF PORTION OF FLANAGANS LANE AND DEDICATION OF ASHVILLE PARK BLVD. `AMENDED SUBDIVISION OF WILSHIRE VILLAGE, PHASE 2 AT ASHVILLE PARK' (INSTR. #200712140o1654730), VIRGINIA BEACH, VIRGINIA", dated December 19, 2007, made by MSA, P.C. and recorded as Instrument Number 20o8022200o198390- GPIN: 2413-16-5292 \\Sykesw2k\users\AM\Mod of Proffers\Ashville Park\ist Amendment to Proffers.doc 9 -28— Item VI—J.2.c.2 PUBLIC HEARING ITEM # 33702 (Continued) PLANNING This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Thirteenth of November, Nineteen Hundred and Ninety. Voting: 10-0 Council Members Voting Aye: John A. Baum, James W. Brazier, Jr., Robert W. Clyburn, Vice Mayor Robert E. Fentress, Harold Heischober, Paul J. Lanteigne, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: Louis R. Jones NnVPMh— 14 1QQf1 i Item VI-J.2.c.2 -27- PUBLIC HEARING ITEM # 33702 PLANNING Michael Barrett, 1829 Eden Way, Phone: 490-7373, Chief Executive Officer/Vice President - Runnymede Corporation, represented the applicant Dr. Frattalone, 3741 South Boulevard, Phone: 486-3801, represented the Windsors Woods/Forest Community. Dr. Frattalone presented a petition containing over 350 signatures in opposition to be made a part of the record; however, with the present proposal of Spruce Street not being a thru street, Dr. Frattalone advised the Civic League would be in support of this application. Upon motion by Councilman Brazier, seconded by Councilman Sessoms, City Council ADOPTED an Ordinance upon application of SENTARA LIFE CARE CORPORATION for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF SENTARA LIFE CARE CORPORATION FOR A CONDITIONAL USE PERMIT FOR A 120 -BED NURSING HOME AND AN 80 -BED HOME FOR THE AGED R011901345 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Sentara Life Care Corporation for a Conditional Use Permit for a 120 -bed nursing home and an 80 -bed home for the aged on the west side of Spruce Street, 300 feet more or less north of South Boulevard. Said parcel contains 10.38 acres. LYNNHAVEN BOROUGH. The following conditions shall be required: 1. Existing trees shall be preserved along the southern, western and northern property lines of the subject site and in open space areas. A tree preservation plan shall be submitted to the Landscape Administrator for approval. 2. Category IV landscaping is required along the southern property line. Existing trees should be utilized to meet this requirement to the maximum extent possible. Condition No. 3 shall be AMENDED to read: 3. No access to this site from that portion of South Boulevard West of Spruce Street. Condition No. 4 shall be AMENDED to read: 4. Spruce Street will not be a thru street. Access to Sentara Life Care Corporation will be via Sentara Way (part of which was formerly Fourth Street) from the Eastern Boundary of the proposed Sentara Site to Rosemont Road. 5. The facility shall have a maximum of 120 nursing beds and 80 assisted -living beds. 6. A minimum of 160 parking spaces, as shown on the submitted site plan, are required. 7. An automatic fire alarm system and an automatic sprinkler system meeting the approval of the Fire Department, Division of Plans Review and the City Fire Protection Engineer are required. PLANNING - RECONSIDERATION -22 - PLANNING 22 - ITEM #f 35985 (Continued) In addition to the 120 nursing beds and 80 assisted living beds, the following accessory uses will be permitted: Preparation and pick-up of meals for the Meals on Wheels program. An adult day health care program with up to 20 participants. A senior assessment center with up to eight evaluations conducted per week Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, Ill, James W. Brazier, Jr., Robert W. Clyburn, Robert K Dean, Louis R. Jones, Paul J. Lanteigne, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent., None August 25, 1992 PLANNING - RECONSIDERATION -21 - ITEM A 35985 Warren L. Tisdale, 1800 Nations Bank Center, Norfolk Phone: 628-5556, represented Sentara Life Care Corporation Upon motion by Councilman Brazier, seconded by Yce Mayor Sessoms, City Council APPROVED expanding the scope of operations permitted by Condition No. 5 in the application of SENTARA LIFE CARE CORPORATION for a Conditional Use Permit for a 120 -bed nursing home and an 80 -bed home for the aged (ADOPTED 11113190). ORDINANCE UPON APPLICATION OF SENTARA LIFE CARE CORPORATION FOR A CONDITIONAL USE PERMIT FOR A 120 - BED NURSING HOME AND AN 80 -BED HOME FOR THE AGED R011901345 Ordinance upon application of Sentara Life Care Corporation for a Conditional Use Permit for a 120 -bed nursing home and an 80 -bed home for the aged on the west side of Spruce Street, 300 feet more or less north of South Boulevard. Said parcel contains 10.38 acres. LYNNHAVEN BOROUGH. All of the previously adopted conditions will remain in effect. These conditions include: 1. Existing trees shall be preserved along the southern, western and northern property lines of the subject site and in open space areas. A tree preservation plan shall be submitted to the Landscape Administrator for approval. 2. Category IV landscaping is required along the southern property line. Existing trees should be utilized to meet this requirement to the maximum extent possible. 3. No access to this site from that portion of South Boulevard, west of Spruce Street, 4. Spruce Street will not be a through street. Access to Sentara LifeCare Corporation will be via Sentara Way (part of which was formerly Fourth Street) from the eastern boundary of the proposed Sentara Site to Rosemont Road 5. The facility shall have a maximum of 120 nursing beds and 50 assisted -living beds. 6 A minimum of 160 parking spaces, as shown on the submitted site plan, are required. Z An automatic fire alarm system and an automatic sprinkler system meeting the approval of the Fire Department, Division of Plans Review and the City Fire Protection Engineer are required. August 25, 1992 Ld A a W N C .0 C 0 U 0 c c q yC er CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: SENTARA VILLAGE — VIRGINIA BEACH/SENTARA LIFE CARE CORPORATION, Modification of Conditional Use Permit, 3751 Sentara Way (GPIN 1487423567). ROSE HALL DISTRICT MEETING DATE: December 13, 2011 ■ Background: This request is divided into two phases. Within Phase 1, the applicant proposes to add hospice services as a 3,500 square foot addition to the existing assisted living facility. Also planned as part of Phase 1, are an additional 7 parking spaces and an 18 foot wide service road. Phase 2 of the expansion includes a 3,400 square foot addition that will connect the Phase 1 addition to the assisted living facility with the existing nursing home, thereby providing uninterrupted internal access to both operations. The existing Conditional Use Permit sets a limit of 200 beds within the entire facility: 120 beds within the nursing home and 80 assisted living beds. Ultimately, the expansion would only net 3 additional patient rooms and 29 additional employees; therefore, the condition is requested to be modified to allow a total of 203 beds. The Conditional Use Permit authorizing the assisted living and nursing home was originally approved by the City Council on November 13, 1990, with modifications approved by City Council on August 25, 1992. The Conditional Use Permit has 7 conditions. ■ Considerations: The Comprehensive Plan recognizes the need for quality housing for our elderly and disabled communities. The addition of the hospice care facility will be an asset to the community and is consistent with the Comprehensive Plan's land use policies and the vision for the Rosemont SGA. The landscape plan, building elevations and internal connecting road detail are also consistent with the Suburban Area design guidelines. There was no opposition to the request. ■ Recommendations: Staff recommended approval of this requested modification, as conditioned. 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: Sentara Village — Virginia Beach Page 2of2 1. All conditions with the exception of Number 5 and 8 attached to the Modification of Conditions of the Conditional Use Permit granted by the City Council on August 25, 1992, shall remain in affect. 2. Condition Number 5 and 8 of the Modification of Conditions of the Conditional Use Permit identified above is modified to allow a maximum of 123 nursing beds and 80 assisted living beds. 3. The site layout, including parking, access drive and building additions, shall be constructed in substantial conformance with the plan entitled, "Sentara Hospice Center," prepared by Langley & McDonald, Inc., which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 4. The building additions shall be constructed in substantial conformance with the Elevations entitled, "Hospice Addition, Sentara Life Care," prepared by PF&A, which have been exhibited to the Virginia Beach City Council and are on file in the Planning Department. 5. The additional plant material to be added to the site shall at a minimum be as depicted on the exhibit entitled, "Landscape Concept Plan," prepared by In Sites Landscape Architecture, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommended approval. Planning Commission recommended approval. Submitting Department/Agency: Planning Department City Manager: S L '�r ROSE HALL n�:, bS Sentara Village -Virginia Beach M-1 !' ti��a -'B'9 November 9, 2011 Public Hearing B3 \� APPLICANT: SENTARA / ti ej2 , F NTARA WAY VILLAGE SEr __ VIRGINIA BEACH 82 - ' PROPERTY OWNER: SENTARA LIFE z,.. ..o�.. MaiNlcetlon o/ Condlllons CARE CORPORATION REQUEST: STAFF PLANNER: Carolyn A.K. Smith Modification of a Conditional Use Permit for an assisted living and nursing home approved by City Council in 1990 and modified in 1992. ADDRESS / DESCRIPTION: 3751 Sentara Way GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14874235670000 ROSE HALL 10.38 acres Less than 65 dB DNL SUMMARY OF REQUEST This request is divided into two phases. Within Phase 1, the applicant proposes to add hospice services as a 3,500 square foot addition to the existing assisted living facility. Also planned as part of Phase 1, are an additional 7 parking spaces and an 18 foot wide service road. Phase 2 of the expansion includes a 3,400 square foot addition that will connect the Phase 1 addition to the assisted living facility with the existing nursing home, thereby providing uninterrupted internal access to both operations. The existing Conditional Use Permit sets a limit of 200 beds within the entire facility: 120 beds within the nursing home and 80 assisted living beds. Ultimately, the expansion would only net 3 additional patient rooms and 19 additional employees; therefore, the condition is requested to be modified to allow a total of 203 beds. The Conditional Use Permit authorizing the assisted living and nursing home was originally approved by the City Council on November 13, 1990, with modifications approved by City Council on August 25, 1992. The Conditional Use Permit has 7 conditions: Sentara Village —Virginia Beach Agenda Item 6 Page 1 1. Existing trees shall be preserved along the southern, western and northern property lines of the subject site and in open space areas. A tree preservation plan shall be submitted to the Landscape Administrator for approval. 2. Category IV landscaping is required along the southern property line. Existing trees should be utilized to meet this requirement to the maximum extent possible. 3. No access to this site from that portion of South Boulevard, west of Spruce Street. 4. Spruce Street will not be a through street. Access to Sentara Life Care Corporation will be via Sentara Way (party of which was formerly Fourth Street) from the eastern boundary of the proposed Sentara site to Rosemont Road. 5. The facility shall have a maximum of 120 nursing beds and 80 assisted -living beds. 6. A minimum of 160 parking spaces, as shown on the submitted site plan, are required. 7. An automatic fire alarm system and an automatic sprinkler system meeting the approval of the Fire Department, Division of Plans Review and the City Fire Protection Engineer are required. 8. In addition to the 120 nursing beds and 80 assisted living beds, the following accessory uses will be permitted: Preparation and pick up of meals for the Meals on Wheels program, An adult day health care program with up to 20 participants, and A senior assessment center with up to 8 evaluations conducted per week. LAND USE AND PLAN INFORMATION EXISTING LAND USE: assisted living and nursing home facility SURROUNDING LAND North: • 1-264 USE AND ZONING: South: . Single family dwellings / R-7.5 Residential District East: . Sentara Way • Single family dwellings / R-7.5 Residential District • Undeveloped future office site / B-2 Community Business District West: . Single-family homes / R-7.5 Residential District NATURAL RESOURCE AND The site is within the Chesapeake Bay watershed. A portion of the CULTURAL FEATURES: property is within the Resource Protection Area, the most stringently regulated and environmentally sensitive portion of the Chesapeake Bay Preservation Area. The CBPA Board granted encroachment into the RPA on October 24, 2011. COMPREHENSIVE PLAN: The Comprehensive Plan identifies this site as being in the Suburban Area adjacent to Strategic Growth Area (SGA) 5, Rosemont. The general planning principles for the Suburban Area focus on preserving and protecting the overall character, economic value, aesthetic quality of the stable neighborhoods and reinforce the suburban characteristics of commercial centers and other non-residential areas that make up part of the Suburban Area. Achieving the goals of preserving neighborhood quality requires that all new development or redevelopment, whether residential or non-residential, either maintain or enhance the overall area. (p. 3-2). The Rosemont SGA Master Plan, adopted September 13, 2011 is one of the eight strategic growth areas within the city identified to provide opportunities for continued physical and economic growth; protect Sentara Village — Virginia Beach Agenda Item 6 Page 2 established neighborhoods from incompatible development; maximize infrastructure efficiency and create unique and exciting urban destinations (p. 2-2). The vision for the Rosemont SGA is a transit -oriented residential village with complementary mix -use and office. The Plan also presents a street network plan that proposes to extend Sentara Way over 1-264 to alleviate Sentara Way/Rosemont Road burdens, aid Rosemont Road north/south capacity issues, and establish a means for pedestrians to connect from southern neighborhoods to Virginia Beach Boulevard and the proposed transit station. CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): South Rosemont Road is a 4 -lane minor urban arterial roadway designated on the City's MTP to be improved to a 6 - lane divided arterial with a 165 foot right -of- way and a bikeway. The project is located at the terminus of Sentara Way, which is not shown on the City's MTP, and is 2 -lane local street. The only CIP project in the vicinity is CIP 2.300.731 - Flashing Yellow Arrow Demonstration - which will alter the traffic signal displays but not the geometry at the Sentara Way and Rosemont Road intersection. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Sentara Unknown 9,900 ADT (Level of Way Service "C") - 11,100 ADT' (Level of Service "E„) 35,500 ADT 22,800 ADT' (Level of Existing Land Use 2— 532 ADT South Service "C") - 27,400 Proposed Land Use 3— 540 ADT Rosemont ADT' (Level of Service Road "E") Average Daily Trips s as defined by 200 bed assisted living facility 3 as defined by the addition of 3 beds WATER & SEWER: This site is already connected to City water and sewer. The existing 4 inch water meter may be used or upgraded if necessary. Analysis of Pump Station #503 and the sanitary sewer collection system may be required to ensure future flows can be accommodated. EVALUATION AND RECOMMENDATION The Comprehensive Plan recognizes the need for quality housing for our elderly and disabled communities. The addition of the hospice care facility will be an asset to the community and is consistent with the Comprehensive Plan's land use policies and the vision for the Rosemont SGA. The submitted landscape plan, building elevations and internal connecting road detail are also consistent with the Suburban Area design guidelines. Staff recommends approval of this requested modification, as conditioned below. Sentara Village — Virginia Beach Agenda Item 6 Page 3 CONDITIONS 1. All conditions with the exception of Number 5 and 8 attached to the Modification of Conditions of the Conditional Use Permit granted by the City Council on August 25, 1992, shall remain in affect. 2. Condition Number 5 and 8 of the Modification of Conditions of the Conditional Use Permit identified above is modified to allow a maximum of 123 nursing beds and 80 assisted living beds. 3. The site layout, including parking, access drive and building additions, shall be constructed in substantial conformance with the plan entitled, "Sentara Hospice Center," prepared by Langley & McDonald, Inc., which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 4. The building additions shall be constructed in substantial conformance with the Elevations entitled, "Hospice Addition, Sentara Life Care," prepared by PF&A, which have been exhibited to the Virginia Beach City Council and are on file in the Planning Department. 5. The additional plant material to be added to the site shall at a minimum be as depicted on the exhibit entitled, "Landscape Concept Plan," prepared by In Sites Landscape Architecture, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 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. Sentara Village Virginia Beach Agenda Item 6 Page 4 s Cir. Y� Spruce N�. _ d 03 � � � S RAIOn JOHN e -I , t i - - I I si j a 'SIM. PROPOSED SITE CONCEPT PLAN Sentara Village — Virginia Beach Agenda Item 6 �(} Page 6 M F tll M e RE�SYIPY g SOL �. PROPOSED LANDSCAPE CONCEPT PLAN Sentara Village — Virginia Beach Agenda Item 6 fi Page 7 a►�ky1+M F"M I PROPOSED HOSPICE ADDITION ELEVATIONS I - -1 Sentara Village — Virginia Beach Agenda Item 6 Page 8.,., ZONING HISTORY # DATE REQUEST ACTION 1 05/25/04 CUP (motor vehicle repair) Granted 12/18/02 MOD (shade structures) Granted 10/12/02 CUP (motor vehicle service) Granted 02/25/97 CUP (motor vehicle sales, service & rental) Granted Street Closure Granted 2 02/25/97 REZ R-7.5 to B-2 Granted 3 02/25/97 REZ (B-2 to R-7.5) Granted 02/10/98 Street Closure Granted 4 07/12/94 MOD Granted 11/22/82 CUP mini warehouse Granted 5 08/25/92 MOD Granted 11/13/90 CUP (assisted living and nursing home) Granted Street Closure Granted 6 10/27/98 CUP small engine repair) Granted 7 04/24/01 Street Closure Granted 12/05/00 REZ B-2, R-7.5 to Conditional B-2 Granted Sentara Village — Virginia Beach Agenda Item 6 Page 9 Q M1 = � .. _0h -A 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) Sentara Village - Virginia Beach t/a Sentara Life Care Corp. 2. List all businesses that have a parent -subsidiary' or affiliated business entity, relationship with the applicant: (Attach list if necessary) Sentara Life Care Corporation, Owner 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 emaloyee of �the City of Virginia Beach have an interest in the subject land? Yes No 1" t If yes, what is the name of the official or employee and the nature of their interest? Modification of Conditons Applicafon DISCLOSURE STATEMENT Sentara Village — Virginia Beach Agenda Item 6 Page 10 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) PF&A Design Architects Langley & McDonald Civil Engineers D "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 PlanningMview the site for purposes of processing and evaluating this application. pp tcanrs Signature Print Name Property Owner's Signature (if different than applicant) Print Name Modification of Conditions Application Page 11 of 11 Revised 773/2007 DISCLOSURE STATEMENT Sentara Village — Virginia Beach Agenda Item 6 Page 11 SENTARA LIFE CARE CORPORATION MEMBER CONSENT The undersigned, being the sole member of Sentara Life Care Corporation (the "Corporation"), does hereby consent in writing to adoption of the Resolution below electing Directors and Officers for the Corporation. Resolution to Elect Directors and Officers WHEREAS, the Member is authorized under the Bylaws of the Corporation to elect the Corporation's Directors and Officers; now, therefore, be it RESOLVED that the individuals listed below be and hereby are elected to serve in the capacities as indicated below, each for a one year term or until a successor is elected. DIRECTORS OFFICERS David L. Bemd David L. Bernd - Chairman Howard P. Kern Howard P. Kern - President Robert A. Broermann Bruce Robertson- Vice President/Administrator Robert A. Broermann -Treasurer Jeffrey P. King - Secretary SENTARA HEALTHCARE, Member By: __— Title: OoWard P.I{ern.Prtstdtll+ Date: -25 it (i rN'()ItUI'R{H.",i.lGlll.tUEHNIk.nD�t1\.M 15rrR MAS It:R41K'('1 :Ul l Smt�rl Lfi Cv�,2Jt 1 Ux DISCLOSURE STATEMENT Sentara Village — Virginia Beach Agenda Itein 6 Page 12 Item #6 Sentara Village — Virginia Beach Modification of a Conditional Use Permit 3751 Sentara Way District 4 Rose Hall November 9, 2011 CONSENT An application of Sentara Village, Virginia Beach, for a Modification of a Conditional Use Permit for an assisted living and nursing home originally approved by City Council in 1990 and modified in 1992 on property located at 3751 Sentara Way, District 3, Rose Hall. GPIN: 1487-42-3567-0000. CONDITIONS 1. All conditions with the exception of Number 5 and 8 attached to the Modification of Conditions of the Conditional Use Permit granted by the City Council on August 25, 1992, shall remain in affect. 2. Condition Number 5 and 8 of the Modification of Conditions of the Conditional Use Permit identified above is modified to allow a maximum of 123 nursing beds and 80 assisted living beds. 3. The site layout, including parking, access drive and building additions, shall be constructed in substantial conformance with the plan entitled, "Sentara Hospice Center," prepared by Langley & McDonald, Inc., which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 4. The building additions shall be constructed in substantial conformance with the Elevations entitled, "Hospice Addition, Sentara Life Care," prepared by PF&A, which have been exhibited to the Virginia Beach City Council and are on file in the Planning Department. 5. The additional plant material to be added to the site shall at a minimum be as depicted on the exhibit entitled, "Landscape Concept Plan," prepared by In Sites Landscape Architecture, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 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. AYE 11 NAY 0 ABS 0 ABSENT 0 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE Item #6 Sentara Village — Virginia Beach Page 2 HORSLEY AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE THORNTON AYE By a vote of 11-0, the Commission approved item 6 by consent. Tom Langley appeared before the Commission on behalf of the applicant. r v 1� 5 a� o° Nu °mac CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: NEW TODAY BUS, INC. /NEWTOWN BAKER SC, Conditional Use Permit, bus terminal, 649 Newtown Road, Suite 101 (GPIN 1468313784). KEMPSVILLE DISTRICT. MEETING DATE: December 13, 2011 ■ Background: The applicant requests a Conditional Use Permit to allow use of the site as a passenger transportation terminal for buses. The applicant leases approximately 600 square feet of space within the 67,485 square foot retail center. This lease space is used as an office and waiting area for passengers. Tickets can be purchased in the office or on-line for a specific time and day. Passenger buses await loading of ticketed customers in the parking area west of the building. When buses are not in operation, they remain parked in designated overnight parking spaces. The applicant operates a total of three buses from this site. The average commuter capacity for a bus is fifty-six persons. All buses travel to and from New York City. Currently buses depart from this site three times a day, at 12:30 a.m., 10:30 a.m. and 3:30 p.m. ■ Considerations: This passenger transportation bus terminal within a shopping center has minimal impact to the surrounding community. The designated passenger drop-off / pick-up area is located in a well lit area within the shopping center's parking lot. Additional landscaping to provide screening to the neighboring businesses and residential properties is recommended. There was no opposition to the request. ■ Recommendations: Staff recommended approval of this request with conditions. 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. When buses are not in operation, they shall be parked in the designed "overnight parking" spaces as shown within the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Planning Department. 2. A landscape buffer shall be installed within the area north of the designated "overnight parking" spaces as shown on the marked -up site plan entitled, New Today Bus, Inc. Page 2of2 "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Category VI plant material shall be provided except when within the Dominion Transmission Rights - of -Way were the plant material shall conform to Category I plant material. 3. Buses shall load and unload in the designated loading and unloading area as shown on the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Planning Department. 4. There shall be a restroom, located in suite 101, which is available to passengers during all hours that the facility is in operation. 5. At least 20 seats shall be available within the office for passengers to wait before or after their scheduled bus departs or arrives. 6. No transfers or connections onto other buses shall be conducted onsite. 7. No vehicle service repair or maintenance activities shall be performed at this site. 8. The applicant shall obtain all the necessary permits, inspections, and approvals from the Fire Department and the Permits and Inspections Division of the Planning Department. A Certificate of Occupancy for the use shall be obtained from the Permits and Inspections Division of the Planning Department. 9. The operation of the buses shall be limited to the schedule provided by the applicant: Three times daily - 12:30am, 10:30am, and 3:30pm ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommended approval. Planning Commission recommended approval. Submitting Department/Agency: Planning Department City Manager: k _�o KEMPSVILLE REQUEST: Conditional Use Permit (Passenger Transportation Terminal) 5 November 9, 2011 Public Hearing APPLICANT: NEW TODAY BUS, INC. PROPERTY OWNER: NEWTOWN BAKER SC STAFF PLANNER: Leslie Bonilla ADDRESS / DESCRIPTION: 649 Newtown Road, Suite 101 GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14683137840000 KEMPSVILLE 10 acres Less than 65 dB DNL LEASE SPACE: 600 square feet SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow use of the site as a passenger transportation terminal for buses. The applicant leases approximately 600 square feet of space within the 67,485 square foot retail center. This lease space is used as an office and waiting area for passengers. Tickets can be purchased in the office or on-line. Tickets are purchased for a specific time and day. Passenger buses await loading of ticketed customers in the parking area west of the building. When buses are not in operation, they remain parked in designated overnight parking spaces. The applicant operates a total of three buses from this site. The average commuter capacity for a bus is fifty-six persons. All buses travel to and from New York City. Currently buses depart from this site three times a day, at 12:30 a.m., 10:30 a.m. and 3:30 p.m. The applicant has occupied the space since 2007, being unaware of the requirement for a Conditional Use Permit. EXISTING LAND USE: Shopping center LAND USE AND PLAN INFORMATION NEW TODAY BUS, INC. Agenda Item 5 Page 1 SURROUNDING LAND North: 0 Multi -family dwellings / A-18 Apartment District USE AND ZONING: . Landscaped area and Hampshire Court / B-2 Community Business District South: . Mini -warehousing / B-2 Community Business District East: . Automotive repair/ B-2 Community Business District • Single-family/ R-10 Residential District West: . Multi -family dwellings / A-18 Apartment District NATURAL RESOURCE AND There are no known significant natural resources associated with this CULTURAL FEATURES: site. COMPREHENSIVE PLAN: The Comprehensive Plan identifies this site as being in the Suburban Area, but it is close to Strategic Growth Area (SGA) 3, Newtown. The general planning principles for the suburban area focus on preserving and protecting the overall character, economic value, aesthetic quality of the stable neighborhoods and reinforce the suburban characteristics of commercial centers and other non-residential areas that make up part of the Suburban Area. Achieving the goals of preserving neighborhood quality requires that all new development or redevelopment, whether residential or non-residential, either maintain or enhance the overall area. (p. 3-2). CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Newtown Road in the vicinity of this application is considered a four -lane divided minor suburban arterial. The Master Transportation Plan proposes a six -lane facility within a 150 foot right-of-way. Currently, this segment of roadway is functioning over capacity at a LOS F. Baker Road in the vicinity of this application is considered a two-lane undivided minor suburban arterial. The Master Transportation Plan proposes a four -lane facility within a 100 foot right-of-way. Currently, this segment of roadway is functioning at a LOS C or better. No roadway Capital Improvement Program projects are slated for these roadways in the vicinity of the site. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Newtown Road 38,342 ADT 26,300 ADT (Level of Existing Land Use — 26 Service "D") ADT Proposed Land Use 3— 344 Baker Road 12,916 ADT 15,000 ADT (Level of Service "D") ADT Average Daily Trips 2 as defined by 600 square foot shopping center 3 as defined by 56 person per bus and office terminal WATER: This site currently connects to City water. The existing water meter may be used or upgraded. SEWER: This site currently connects to City sanitary sewer. Sanitary sewer and pump station analysis for Pump Station #340 is required to ensure future flows can be accommodated. NEW TODAY BUS, INC. Agenda Item 5 Page 2 DEVELOPMENT SERVICES CENTER: A plant buffer should be provided along the northwest portion of the existing parking lot at the rear of building (as shown within the site plan in this report). Due to the existing Virginia Electric and Power Company (VEPCO) right-of-way, canopy tree plantings will be restricted from being implemented under the transmission lines. In addition to planting within the VEPCO right-of-way with approved species as per the recommended plant list from Dominion Power suggest utilizing the additional open space areas outside of the VEPCO right-of-way as plantings areas for large canopy tree plantings to fulfill the coverage requirements. EVALUATION AND RECOMMENDATION Staff finds that this passenger transportation bus terminal within a shopping center has minimal impact to the surrounding community. The designated passenger drop-off / pick-up area is located in a well lit area within the shopping center's parking lot. Additional landscaping to provide screening to the neighboring businesses and residential properties is recommended. Staff recommends approval of this request with the conditions below. CONDITIONS 1. When buses are not in operation, they shall be parked in the designed "overnight parking" spaces as shown within the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Planning Department. 2. A landscape buffer shall be installed within the area north of the designated "overnight parking" spaces as shown on the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Category VI plant material shall be provided except when within the Dominion Transmission Rights -of -Way were the plant material shall conform to Category I plant material. 3. Buses shall load and unload in the designated loading and unloading area as shown on the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Planning Department. 4. There shall be a restroom, located in suite 101, which is available to passengers during all hours that the facility is in operation. 5. At least 20 seats shall be available within the office for passengers to wait before or after their scheduled bus departs or arrives. 6. No transfers or connections onto other buses shall be conducted onsite. 7. No vehicle service repair or maintenance activities shall be performed at this site. 8. The applicant shall obtain all the necessary permits, inspections, and approvals from the Fire Department and the Permits and Inspections Division of the Planning Department. A Certificate of NEW TODAY BUS, INC. Agenda Item 5 Page 3 Occupancy for the use shall be obtained from the Permits and Inspections Division of the Planning Department. 9. The operation of the buses shall be limited to the schedule provided by the applicant: • Three times daily - 12:30am, 10:30am, and 3:30pm 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. NEW TODAY BUS, INC. Agenda Item 5 Page 4 a . .. a It1T a. COhh� b, e ,i ft ;s ; aas*ssxRysrii i ._��� cdH ... I; � =k.kk:kBkkY ! j s»kRR�zaxaxz —J U ►4 �. „ A: w e 3' � � F r W ! z ,i ft 0.0.►Pi 0.ii0.Pa P0.L 0.Pa 0.P PYi PAT PROPOSED SITE PLAN NEW TODAY BUS, INC. Agenda Item 5 Page 6 1 ss aas*ssxRysrii i ._��� ... I; � =k.kk:kBkkY ! j s»kRR�zaxaxz —J 0.0.►Pi 0.ii0.Pa P0.L 0.Pa 0.P PYi PAT PROPOSED SITE PLAN NEW TODAY BUS, INC. Agenda Item 5 Page 6 1 KEMPSVILLE XT...- 'T.,.l.�.• ]D,1,,, Tnr� ■. i �. �,�t - � � ��A � 4 � ♦ � 1 t�l� ti��. � /� 1211 MIS ��►),�)S , 'Zoning with Conditions :Proffers. Open CUP for Passenger Transportation Terminal Space Promotion or PDH -2 Overlays ZONING HISTORY # DATE REQUEST ACTION 1 06/27/2006 03/08/2005 Conditional Use Permit (religious use) Conditional Use Permit (religious use Granted Granted 2 09/24/1996 Rezoning R-7.5 and B-2 to Conditional B-1 Granted 3 07/09/2009 Conditional Use Permit (bingo hall Withdrawn 4 03/11/1997 Conditional Use Permit church Granted 5 11/09/1999 Rezoning R-7.5 to Conditional B-1 Granted 6 05/24/2011 05/24/2011 05/25/2010 05/25/2010 Rezoning (Conditional A-18 to PD-H2(A-18)) Extended Street Closure Street Closure Rezoning R-7.5 to Conditional A-18 Granted Granted Granted Granted 7 10/24/2000 Conditional Use Permit(housing for seniors and disabled Granted 8 09/11/2011 Subdivision Variance Granted 9 05/24/1994 Subdivision Variance Granted 10 02/27/2001 Conditional Use Permit -07 NEW TODAY BUS, INC. Agenda Item 5 A Page 7 S .5 `i x-5,iJ'RF STATEMENT ArPLICANT DISCLOSVRE N07 ,, r f 0 DISCLOSURE STATEMENT NEW TODAY BUS, INC. Agenda Item 5 Page.8 DISCLOSURE STATEIVIEW ADDMtiNAL DISCLOSURES List lip known contractors or bu*iesses that have or will provide services with erect to file requested property use, InckKMg but not limited to the providers of arohiloctural services, real estate services, financial services, accounting services, and legal services; (Attach list If necessary) "Parent -subsidiary ralaflondW means `"p relatieonshipthat exists when one corporation directly or Indirectly owns shares possessing more than 50 percent of the v+a" powder of another corporation' See State and Local Government Conffict'of Interests Act, Va. Code § 22-3109. a'Alff;ated business entity relaWnshlp' means "a relationship, other than. parent - subsidiary relationship, that exists when (I) one buslness entity has a cont milim, ownership. interest in the other business entity, (6) a.controflifhg owner in one entity is also a controlling owner in the other entity, or (lf) there is'stiared menag@ment lir control between the business entities. Factors that should be consideree} in determining the existence of an aMiated business entity relaomhip Mciude that the same person or substantially the same person own or manage the two enti8es; there are common or corrmhingled fimda or -assets; the busineris 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 aribiles.` See State and 1-0001 Govemment Conflict of Interests Act, Va. Code § 22,3101. .. • CERTIFICATION: I certify that fhe Inti =20on contained herein ie true and accurate. I understand that. upon receipt of notflica*n (postcard) that the aMficaflon has been scheduled fo, public hearing, i am responsible for obtaining and posting the required sign on lime subject ptnperV at last 30 days prior to the Scheduled public hearths according to the instructions in Chis package. The undersigned also consents !o entry upon the subject property by employees of the Department of Planning to tttd view ft site for purposes of processing and evakofing this appecation. rt lure Print Name . Property Owner's Signature (it dfiferent than applicant] Print Name COV bona) UW Pe ft AppGcadon Pap* 10 of 10 Reined ? 2CItl) DISCLOSURE STATEMENT NEW TODAY BUS, INC. Agenda Iters 5 Page 9 DISCLOSURE STATEMENT NEW TODAY BUS, INC. Agenda Item 5 Page 10 Item #5 New Today Bus, Inc. Conditional Use Permit 649 Newtown Road, Suite 101 District 2 Kempsville November 9, 2011 CONSENT An application of New Today Bus, Inc. for a Conditional Use Permit for a Passenger Transportation Terminal on property located at 649 Newtown Road, Suite 101, District 2, Kempsville. GPIN: 1469-31- 3784-0000. CONDITIONS 1. When buses are not in operation, they shall be parked in the designed "overnight parking" spaces as shown within the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Planning Department. 2. A landscape buffer shall be installed within the area north of the designated "overnight parking" spaces as shown on the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Category VI plant material shall be provided except when within the Dominion Transmission Rights -of - Way were the plant material shall conform to Category I plant material. 3. Buses shall load and unload in the designated loading and unloading area as shown on the marked -up site plan entitled, "Newtown Baker Crossing" and by S.L. Nusbaum Realty. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Planning Department. 4. There shall be a restroom, located in suite 101, which is available to passengers during all hours that the facility is in operation. 5. At least 20 seats shall be available within the office for passengers to wait before or after their scheduled bus departs or arrives. 6. No transfers or connections onto other buses shall be conducted onsite. 7. No vehicle service repair or maintenance activities shall be performed at this site. 8. The applicant shall obtain all the necessary permits, inspections, and approvals from the Fire Department and the Permits and Inspections Division of the Planning Department. A Certificate of Occupancy for the use shall be obtained from the Permits and Inspections Division of the Planning Department. 9. The operation of the buses shall be limited to the schedule provided by the applicant: 0 Three times daily - 12:30am, 10:30am, and 3:30pm Item #5 New Today Bus, Inc. Page 2 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. AYE 11 NAY 0 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE HORSLEY AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE THORNTON AYE ABS 0 ABSENT 0 By a vote of 11-0, the Commission approved item 5 by consent. The applicant Sarah Zhang appeared before the Commission. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: AUTO PROPERTIES, LLC/KH REAL ESTATE, LLC, Conditional Change of Zoning, R-7.5 Residential to Conditional B-2 Community Business, Comprehensive Plan — Suburban Area. Use: used car sales, Conditional Use Permit, motor vehicle sales & service, 326 & 330 Malibu Drive (GPIN 1487655285; 1487655198). LYNNHAVEN DISTRICT MEETING DATE: December 13, 2011 ■ Background: The applicant proposes to rezone 2 existing R-7.5 properties to B-2 Community Business District and add these areas into the existing auto sales and service Conditional Use Permit in order to expand their operation. Specially, the site plan depicts the removal of 2 existing single family dwellings to be replaced with an expansion to the auto sales and service facility's parking lot. The application indicates that the proposed parking lot is intended to alleviate a parking problem along the right-of-way. The site plan depicts 49 parking spaces with several small landscape islands and the required 15 foot buffer containing plant material and a 6 foot high, solid PVC privacy fence along the northern property line. A row of plants are depicted to be installed within a 4.5 foot wide planting area running the length of the proposed parking lot along Malibu Drive. If approved, during final site plan review, the layout of the parking spaces may be impacted to fully comply with all interior parking lot and streetscape landscaping requirements. Access to the parking lot is proposed internally via the existing sales and service facility with an existing ingress/egress along Malibu Drive. ■ Considerations: In 2000, additions totaling 21,400 square feet to the auto sales and service building were approved by City Council. No changes to the property boundaries were proposed at that time. The staff report noted that there were 558 parking spaces, some of which were leased to adjacent properties, and with the building expansions, 13 spaces would be lost. The use requires only 47 parking spaces so ample parking for customers and employees is available. As the application states that the parking lot expansion is proposed to alleviate a "parking problem," it is Staff's opinion that the "problem" may be caused by the applicant's leasing spaces to adjacent property owners and by having too much inventory than what can be sold in a reasonable amount of time. Auto Properties II, LLC Page 2of3 The Comprehensive Plan recognizes that the Rosemont SGA is surrounded by numerous stable residential neighborhoods and seeks to address the edges of these neighborhoods through better transition between existing single-family detached residential areas to the north and commercial or other non-residential uses to the south that front along Virginia Beach Boulevard. The addition of a parking lot is counter to this goal. Based on the recommendations of the Comprehensive Plan, and the negative visual and quality of life impacts that the parking lot extension will have on the adjacent single family neighborhood, Staff recommends no change to the existing zoning nor to the sales and service facility for the additional parking lot and that both requests be denied. Staff recommends that no commercial development be permitted north of Malibu Palms Drive in order to maintain the present stable character of the neighborhood along Malibu Drive. There was opposition to this request. ■ Recommendations: Staff recommended denial of this application. The Planning Commission, passing a motion by a recorded vote of 9-2, denied the approval of this request to the City Council. 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 redeveloped, it shall be resubdivided and, by vacation of all internal property lines, incorporated into the adjacent commercially zoned parcel abutting the eastern and southern boundaries. PROFFER 2: When the Property is redeveloped, it shall only be used for surface parking substantially in accordance with the exhibit entitled "CONCEPT PLAN, 49 SPACE EMPLOYEE OVERFLOW PARKING LOT", dated July 22, 2010, prepared by Gallup Surveyors & Engineers, Ltd., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Concept Plan"). Auto Properties II, LLC Page 3 of 3 PROFFER 3: When the Property is developed, the fencing and permanent landscape buffer areas shall be installed and maintained along the western boundary of the Property and adjacent to Malibu Drive as depicted and described on the Concept Plan. PROFFER 4: When the Property is developed, all exterior lighting shall be low intensity and residential and in accordance with Section 237 of the City's Zoning Ordinance, all outdoor lights shall be shielded to direct light and glare onto the parking lot; said lighting and glare shall be deflected, shaded and focused away from all adjoining property. PROFFER 5: Further conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all appropriate agencies and departments of Grantee. STAFF COMMENTS: While the proffers are sufficient in a legal sense, Staff does not recommend approval of the proposal. The City Attorney's Office has reviewed the proffer agreement dated July 22, 2011, and found it to be legally sufficient and in acceptable legal form. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends denial. Planning Commission recommends denial. Submitting Department/Agency: Planning Departmentl�� City Manager: S YNNH"EN Nl,I is Auto Pioperties II, LLC R7 5 B2 .<< i i 424 U°" B2 82` B2 Conditional Zoning Change 10 R-7.5 to Conditional 8-2 CUP - Auto Sales 8 Service 21 &22 September 14, 2011 Public Hearing APPLICANT: AUTO PROPERTIES II, LLC PROPERTY OWNER: KH REAL ESTATE, LLC STAFF PLANNER: Carolyn A.K. Smith REQUESTS: Conditional Change of Zoning (R-7.5 Residential District to B-2 Community Business District) Conditional Use Permit (Auto Sales & Service) ADDRESS / DESCRIPTION: 326 & 330 Malibu Drive GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14876552850000 LYNNHAVEN 16,219 square feet Less than 65 dB DNL 14876551980000 SUMMARY OF REQUEST The applicant proposes to rezone 2 existing R-7.5 properties to B-2 Community Business District and add these areas into the existing auto sales and service Conditional Use Permit in order to expand the operation which has been in existence for approximately 20 years. Specially, the submitted site plan depicts the removal of 2 existing single family dwellings to be replaced with an expansion to the auto sales and service facility's parking lot. The application indicates that the proposed parking lot is intended to alleviate a parking problem along the right-of-way. Originally, no proffer agreement was submitted with the application although the applicant's representative was informed that this document would provide certainty to surrounding property owners, decision makers and staff as to the intended proposed use now and for the future. A proffer agreement was recently submitted and the rezoning request was deferred to the September Planning Commission agenda. The submitted site plan depicts 49 parking spaces with several small landscape islands and the required 15 foot buffer containing plant material and a 6 foot high, solid PVC privacy fence along the northern property line. A row of plants are depicted to be installed within a 4.5 foot wide planting area running the length of the proposed parking lot along Malibu Drive. If approved, during final site plan review, the AUTO PROPERTIES II, LLC Agenda Item 21 & 22 Page 1 ultimate layout of the parking spaces may shift in order to meet both the interior parking lot and streetscape landscaping requirements. Access to the parking lot is proposed internally via the existing sales and service facility with an existing ingress/egress along Malibu Drive. LAND USE AND PLAN INFORMATION EXISTING LAND USE: 2 single family dwellings, which are now demolished SURROUNDING LAND North: . Single family dwellings / R-7.5 Residential District USE AND ZONING: South: . Auto sales and service / B-2 Community Business District East: . Auto sales and service / B-2 Community Business District West: 0 Malibu Drive Present Capacity • Single-family homes / R-7.5 Residential District NATURAL RESOURCE AND The properties are located within the Chesapeake Bay watershed. As CULTURAL FEATURES: these relatively small lots are developed with single family dwellings and parking lot, there do not appear to be any significant environmental features on these sites. COMPREHENSIVE PLAN: This property is located in the Urban Area - Rosemont Strategic Growth Area, SGA 5. The draft Rosemont SGA Master Plan was prepared in April 2011. It recognizes that the Rosemont SGA is surrounded by numerous stable residential neighborhoods and seeks to address the edges of these neighborhoods through better transition between existing single-family detached residential areas to the north and commercial or other non-residential uses to the south that front along Virginia Beach Boulevard. CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Virginia Beach Boulevard is an 8 lane, urban, major arterial. Malibu Drive is a 2 lane local street. Neither Virginia Beach Boulevard nor Malibu Drive in the vicinity of this request is listed on the MTP or the CIP list for upgrade. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Virginia Beach 56,700 ADT 56,240 ADT 1 (Level of Existing Land Use — Boulevard Service "D") 20 ADT 64,260 ADT' (Level of Proposed Land Use 3 - Service "E") 0 ADT 9,900 ADT' (Level of Service "D" Malibu Drive No Data Available Average Daily Trips 2 as defined by 2 dwellings 3 as defined by a parking lot which itself does not generate traffic AUTO PROPERTIES II, LLC Agenda Item 21 & 22 Page 2 WATER S SEWER: These sites are already connected to City water and sewer; however, with the redevelopment of a parking lot, no connections will be necessary. EVALUATION AND RECOMMENDATION In 2000, additions totaling 21,400 square feet to the auto sales and service building were approved by City Council. No changes to the property boundaries were proposed at that time. The 2000 staff report noted that there were 558 parking spaces, some of which were leased to adjacent properties, and with the building expansions, 13 spaces would be lost. The use requires only 47 parking spaces so ample parking for customers and employees is available. As the application states that the parking lot expansion is proposed to alleviate a "parking problem," it is Staffs opinion that the "problem" may be caused by the applicant's leasing spaces to adjacent property owners and by having too much inventory than what can be sold in a reasonable amount of time. The submitted site plan depicts the removal of 2 existing single family dwellings to be replaced with an expansion to the auto sales and service facility's parking lot. Ingress/egress to the parking lot addition is proposed internally through the facility's entrance along Malibu Drive. The submitted site plan depicts 49 parking spaces with several small landscape islands and the required 15 foot buffer, with plants and a privacy fence at the edge of the parking spaces, along the northern property line. The layout of the parking may be impacted during final site plan review in order to fully comply with all landscaping requirements. Originally, no proffer agreement was submitted with the application. At the behest of Staff, a conditional rezoning agreement has been submitted that limits to the use of the parcels to parking for the auto sales and service facility. This agreement aids is providing certainty to surrounding property owners, decision makers and staff as to the intended proposed use and layout now and into the future. The Comprehensive Plan recognizes that the Rosemont SGA is surrounded by numerous stable residential neighborhoods and seeks to address the edges of these neighborhoods through better transition between existing single-family detached residential areas to the north and commercial or other non-residential uses to the south that front along Virginia Beach Boulevard. The addition of a parking lot is counter to this goal. The Comprehensive Plan Reference Handbook addresses site design in urban areas and recommends that parking areas not dominate the frontage of streets and should be located behind buildings or in the interior of a block (p. B-2). Based on the recommendations of the Comprehensive Plan, and the negative visual and quality of life impacts that the parking lot extension will have on the adjacent single family neighborhood, Staff recommends no change to the existing zoning nor to the sales and service facility for the additional parking lot and that both requests be denied. Staff recommends that no commercial development be permitted north of Malibu Palms Drive in order to maintain the present stable character of the neighborhood along Malibu Drive. AUTO PROPERTIES II, LLC Agenda Item 21 & 22 °Page 3 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 redeveloped, it shall be resubdivided and, by vacation of all internal property lines, incorporated into the adjacent commercially zoned parcel abutting the eastern and southern boundaries. PROFFER 2: When the Property is redeveloped, it shall only be used for surface parking substantially in accordance with the exhibit entitled "CONCEPT PLAN, 49 SPACE EMPLOYEE OVERFLOW PARKING LOT", dated July 22, 2010, prepared by Gallup Surveyors & Engineers, Ltd., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Concept Plan"). PROFFER 3: When the Property is developed, the fencing and permanent landscape buffer areas shall be installed and maintained along the western boundary of the Property and adjacent to Malibu Drive as depicted and described on the Concept Plan. PROFFER 4: When the Property is developed, all exterior lighting shall be low intensity and residential and in accordance with Section 237 of the City's Zoning Ordinance, all outdoor lights shall be shielded to direct light and glare onto the parking lot; said lighting and glare shall be deflected, shaded and focused away from all adjoining property. PROFFER 5: Further conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all appropriate agencies and departments of Grantee. STAFF COMMENTS: While the proffers are sufficient in a legal sense, Staff does not recommend approval of the proposal. The City Attorney's Office has reviewed the proffer agreement dated July 22, 2011, 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 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. AUTO PROPERTIES II, LLC Agenda Item 21 & 22 Page 4 I If„ p,lcOtt Rd • tl Lb r,dL.It ' w e: #3a 111 G -� r•en �: f yy •�_ ..-� C+��.s-_ i� .�'1 !. '( ~ �,' •'sem _ .}.:.i. alibU P� - a •' P PROPOSED PARKING LOT LAYOUT AUTO PROPERTIES II, LLC Agenda Item 21 & 22 + Page 6 ;' A}}})l e � O 1 �` r .'!Rr t�w05C+Pn4 PPD.OEU l.Wi 1,1. r • ` :'�: •• � �EALTN R. -...T b No. Lic. No. WE ffi 38395 , r Np a.r w .s SPACE ZONAL A o • — CONCEPT PLAN +1 v- � YS W DMri�'�) E (n p 1 1Fr N s.0 DR•Rt om w rn.n.c poi f�t•.i•.is •u.•i PROPOSED PARKING LOT LAYOUT AUTO PROPERTIES II, LLC Agenda Item 21 & 22 + Page 6 ;' ZONING HISTORY # DATE REQUEST ACTION 1 06/09/09 CUP (commercial recreation facility) Granted 08/05/03 CUP commercial recreation facility) Granted 2 02/08/00 CUP (motor vehicle rentals) Granted 02/22/94 CUP (motor vehicle sales) Granted 01/11/88 CUP motor vehicle sales & service Granted 3 08/11/80 CUP senior housing) Granted Yy G C �r 'r AUTO PROPERTIES II, LLC .,� Agenda Item 21 & 22 y Page 7 ,' 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) paib fS I1 svic 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) .7eca z14 -i Li'..t, K•a awe[ 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list it necessary) Check here if the property owner is NOT corporation, partnership, firm, business, or other unincorporated organization. ' 8 2 See next page for footnotes conditional Use Pe—il Application Page 9 of 10 Revised 9/1!2004 DISCLOSURE STATEMENT AUTO PROPERTIES II, LLC Agenda Item 21 & 22 Page 8 A C) 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 ins sin this package. - --- SI'm - Applicants nature ��/L� Print Name of Ord erty Owners Signature (if different than applicant) — — Pjk�, Name ---� Conditional Use Permit Application Page 10 of 10 Revised 9/112004 DISCLOSURE STATEMENT AUTO PROPERTIES II, LLC Agenda Item 21 & 22 Page 9 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Q.4t12- 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 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. & 2 See next page for',: ,nrx. � kezon„w nppi,cauo„ L -I DISCLOSURE STATEMENT AUTO PROPERTIES II, LLC Agenda Item 21 & 22 Page 10 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) ' "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 lbaja=ctions in this package. �Pphca�Print Name I/ -P y Owner's Signature (it different than applicant) not Name Remreng At;,. Plpr lf.. - . fid:vFd I " �I DISCLOSURE STATEMENT AUTO PROPERTIES II, LLC Agenda Item 21 & 22 Page 11 Item #21 & 22 Auto Properties 11, L.L.C. Conditional Change of Zoning Conditional Use Permit 326 & 330 Malibu Drive District 5 Lynnhaven September 14, 2011 REGULAR 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 redeveloped, it shall be resubdivided and, by vacation of all internal property lines, incorporated into the adjacent commercially zoned parcel abutting the eastern and southern boundaries. PROFFER 2: When the Property is redeveloped, it shall only be used for surface parking substantially in accordance with the exhibit entitled "CONCEPT PLAN, 49 SPACE EMPLOYEE OVERFLOW PARKING LOT", dated July 22, 2010, prepared by Gallup Surveyors & Engineers, Ltd., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Concept Plan"). PROFFER 3: When the Property is developed, the fencing and permanent landscape buffer areas shall be installed and maintained along the western boundary of the Property and adjacent to Malibu Drive as depicted and described on the Concept Plan. PROFFER 4: When the Property is developed, all exterior lighting shall be low intensity and residential and in accordance with Section 237 of the City's Zoning Ordinance, all outdoor lights shall be shielded to direct light and glare onto the parking lot; said lighting and glare shall be deflected, shaded and focused away from all adjoining property. PROFFER 5: Further conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all appropriate agencies and departments of Grantee. STAFF COMMENTS: While the proffers are sufficient in a legal sense, Staff does not recommend approval of the proposal. Item #21 & 22 Auto Properties II, L.L.C. Page 2 The City Attorney's Office has reviewed the proffer agreement dated July 22, 2011, 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 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. A motion was made by Commissioner Thornton to deny the application with a second by Commissioner Ripley. By a vote of 9-2, the Commission denied items 21 & 22. Billy Garrington appeared before the Commission on behalf of the applicant. Robert Malledin appeared before the Commission in opposition. AYE 9 NAY 2 ABS 0 ABSENT 0 BERNAS AYE FELTON NAY HENLEY AYE HODSGON AYE HORSLEY AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRAN GE NAY THORNTON AYE By a vote of 9-2, the Commission denied items 21 & 22. Billy Garrington appeared before the Commission on behalf of the applicant. Robert Malledin appeared before the Commission in opposition. In Reply Refer To Our File No. DF8151 TO: Mark D. Stiles FROM- B. Kay Wilso 1 CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: October 13, 2011 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; KH Real Estate, LLC , The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 25, 2011. 1 have reviewed the subject proffer agreement, dated July 22, 2011 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. B KW/ks Enclosure cc: Kathleen Hassen KH REAL ESTATE, LLC, a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 22nd day of July, 2o11, by KH REAL ESTATE, LLC, a Virginia limited liability company, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of two (2) certain contiguous parcels of property located in the Rose Hall District of the City of Virginia Beach, containing approximately sixteen thousand (16,000) square feet and described in Exhibit "A" attached hereto and incorporated herein by this reference, said parcels being hereinafter referred to as the "Property"; and WHEREAS, the Grantor has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from R-7.5 Residential District to Conditional B-2 Community Business District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and GPIN: 1487-65-5285 1487-65-5198 Prepared By: R. Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the 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, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro -quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenant and agree that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. When the Property is redeveloped, it shall be resubdivided and, by vacation of all internal property lines, incorporated into the adjacent commercially zoned parcel abutting the eastern and southern boundaries. 2. When the Property is redeveloped, it shall only be used for surface parking substantially in accordance with the exhibit entitled "CONCEPT PLAN, 49 SPACE EMPLOYEE OVERFLOW PARKING LOT", dated July 22, 2011. prepared by Gallup Surveyors & Engineers, Ltd., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Concept Plan"). 3. When the Property is developed, the fencing and permanent landscape buffer areas shall be installed and maintained along the western boundary of the Property and adjacent to Malibu Drive as depicted and described on the Concept Plan. 4. When the Property is developed, all exterior lighting shall be low intensity and residential and in accordance with Section 237 of the City Zoning Ordinance, all outdoor lights shall be shielded to direct light and glare onto the parking lot; said lighting and glare shall be deflected, shaded and focused away from all adjoining property. 5. Further conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all appropriate agencies and departments of Grantee. All references hereinabove to R-7.5 and B-2 Districts and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City. of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: K3 (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; (g) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee. 4 WITNESS the following signature and seal: Grantor: KH Real Estate, LLC, a Virginia limited liability company By; (W oC/ �� (SEAL) Kenneth A. Hall, Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The =2oli, ng instrument was acknowledged before me this _ day of by Kenneth A. Hall, Manager of KH Real Estate, LLC, a Virginia limited liability company, Grantor. ,+01�11flffi�f, *AuFF Notary Nblic ; `� 0OF My Commission Expires: Notary Registration No.: '709,Y Uk GjRGoN�P���'o: ���reffffi"`� til EXHIBIT "A„ ALL THOSE certain lots, pieces or parcels of land, with the improvements thereon, and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and known, numbered and designated as Lots 1 and 2, on that certain plat entitled "SUBDIVISION OF MALIBU" SECTION — 1 PRINCESS ANN COUNTY, VA.", made by Frank D. Tarrall, Jr. & Associates, dated 196o, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 50, at Page i7. GPIN: 1487-65-5198 1487-65-5285 \\Sykesw2k\users\AM\Conditiona1 Rezoning\KH Real Pstate\ProfferAgreement.doc 3 N. APPOINTMENTS BIKEWAYS AND TRAILS ADVISORY COMMITTEE COMMUNITY SERVICES BOARD DEFERRD COMPENSATION BOARD HEALTH SERVICES ADVISORY BOARD PARKS AND RECREATION COMMISSION PLANNING COMMISSION O. UNFINISHED BUSINESS P. NEW BUSINESS Q. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 WON CITY COUNCIL SESSION SCHEDULE Date Time Meetin January 3, 2012 TBA Back to the usual schedule Agenda 12/13/2011 gw CITY OF VIRGINIA BEACH CITY COUNCIL/SCHOOL BOARD SUMMARY OF COUNCIL ACTIONS JOINT MEETING DATE: 12/6/2011 FUNDING FORMULA PAGE: 1 D S IUIII/IV/V/ CERTIFICATION OF CLOSED CERTIFIED 11-0 Y E D Y H Y Y E Y W Y AGENDA D S I E J S U I ITEM # SUBJECT MOTION VOTE A T E D N O M S H L W V E Z Y L N O O R S O Y I P E E E E S M I O O S H L R Y S S S N N D I CITY COUNCIL/SCHOOL BOARD JOINT MEETING FUNDING FORMULA IUIII/IV/V/ CERTIFICATION OF CLOSED CERTIFIED 11-0 Y Y Y Y Y Y Y Y Y Y Y VI/E SESSION F MINUTES — 11/22/11 APPROVED 9-0 Y Y Y Y Y Y Y Y Y A A B B S S T T A A I I N N E E D D G CONVENTION CENTER HOTEL Steve Herbert, PRESENTATION Assistant City Manager H/I-1 Ordinance re Employment Contract of ADOPTED 9-2 Y N Y Y Y Y N Y Y Y Y" City Manager 2 Resolution COMMENDING Kevin ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Orth/Atlantic American Partners re rehab CONSENT of Twin Canal Village Apartments 3 Ordinance re MODIFICATION of $5- ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Million to Va Beach Rescue Squad re CONSENT loan 4 Ordinance to ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y ACCEPT/APPROPRIATE a $427,610 CONSENT COPS Secure Our Schools grant from U.S. Dept of Justice/TRANSFER $427, 610 matching funds Budget re school security 5 Ordinance to TRANSFER $416,085 re ADOPTED 10-1 Y Y Y Y Y Y N Y Y Y Y energy conservation for Chesapeake Beach Fire/ Rescue Station K-1 VILLAGE CHURCH Modification of a APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y CUP (approved Sept. 27, 2005) to delete CONDITIONED, portable trailer at 4013 Indian River Road BY CONSENT (DISTRICT 1 — CENTERVILLE) CITY OF VIRGINIA BEACH RANDY TILLMAN CUP re creation of APPROVED/ I1-0 Y Y Y Y Y Y Y Y SUMMARY OF COUNCIL ACTIONS Y Y four new residential lots at 1646 -1650 CONDITIONED, DATE: 12/6/2011 Princess Anne Road (DISTRICT 7 — BY CONSENT PAGE: 2 D S PRINCESS ANNE) E D H E W AGENDA D S I E J S U I ITEM # SUBJECT MOTION VOTE A T E D N O M S H L W Y V E Z Y L N O O R S O I P E E E E S M I O O 11-0 S H L R Y S S S N N D 2 RANDY TILLMAN CUP re creation of APPROVED/ I1-0 Y Y Y Y Y Y Y Y Y Y Y four new residential lots at 1646 -1650 CONDITIONED, Princess Anne Road (DISTRICT 7 — BY CONSENT PRINCESS ANNE) 3/ CITY to AMEND the CZO: a §201(e) re fences in side yard setbacks APPROVED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y CONSENT b §501 re outdoor recreation and amusement APPROVED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y facilities in Residential Districts CONSENT c §503 re height regulations for public DENIED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y schools in Residential Districts CONSENT 4 CITY to AMEND Comp Plan re Va APPROVED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Aquarium/Owls Creek Area Master CONSENT Plan L. COMMUNITY SERVICES BOARD RESCHEDULED B Y C O N S E N S U S DEFERRED COMPENSATION BOARD ENERGY ADVISORY COMMITTEE HEALTH SERVICES ADVISORY BOARD PARKS AND RECREATION COMMISSION PLANNING COMMISSION BOARD OF ZONING APPEALS Appointed 5 -yr Term 1/1/12-12/31/16 11-0 Y Y Y Y Y Y Y Y Y Y Y Rod Rodriguez CHESAPEAKE BAY PRESERVATION Appointed 3 -Yr AREA BOARD Term 11-0 Y Y Y Y Y Y Y Y Y Y Y 1/1/12-12/31/14 Dennis Sabota Reese Smith, Jr. Reappointed 3 -Yr Term Jeanne Evans -Cox Stephen McNulty Brad Martin Paul R. Schmidt CITY OF VIRGINIA BEACH HAMPTON ROADS PLANNING Appointed 11-0 Y Y Y Y Y Y Y Y SUMMARY OF COUNCIL ACTIONS Y Y DISTRICT COMMISSION Unexpired Thru DATE: 12/6/2011 12/31/12 PLUS PAGE: 3 D S 2 Yrs to 12/31/14 E D H E W AGENDA D S I E J S U I ITEM # SUBJECT MOTION VOTE A T E D N O M S H L W V E Z Y L N O O R S O I P E E E E S M 1 O O S H L R Y S S S N N D CITY COUNCIL SESSION SCHEDULE Date Time Meetin December 13, 2011 TBA Briefings, Informal Session, Formal Session January 3, 2012 TBA Back to the usual schedule HAMPTON ROADS PLANNING Appointed 11-0 Y Y Y Y Y Y Y Y Y Y Y DISTRICT COMMISSION Unexpired Thru 12/31/12 PLUS 2 Yrs to 12/31/14 John D. Moss RESORT ADVISORY COMMISSION Appointed 3 Yr. Term 1/1/12-12/31/14 Randy Thompson VIRGINIA BEACH COMMUNITY Appointed 4 -Yr. 11-0 Y Y Y Y Y Y Y Y Y Y Y DEVELOPMENT CORPORATION term 1/1/12 — 12/31/15 Prescott Sherrod M/N/0 ADJOURNMENT PUBLIC COMMENT 7:41-7:55 PM 7 SPEAKERS CITY COUNCIL SESSION SCHEDULE Date Time Meetin December 13, 2011 TBA Briefings, Informal Session, Formal Session January 3, 2012 TBA Back to the usual schedule