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HomeMy WebLinkAboutJANUARY 18, 2022 FORMAL SESSION MINUTES Ji n3 • Vi Ls� NSg9ks ki Of OUR NZ� VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia January 18, 2022 Mayor Dyer called to order the CITY COUNCIL MEETING in the City Council Chamber, City Hall, on Tuesday, January 18, 2022, at 1:30 P.M Council Members Present: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N. D. "Rocky"Holcomb, Louis R. Jones, John D. Moss,Aaron Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson—Ill 2 CITY MANAGER'S BRIEFINGS FY2021-22 INTERIM FINANCIAL UPDATE ITEM#72414 2:20 P.M. This briefing has been postponed. January 18, 2022 3 ADD ON GENERAL ASSEMBLY LEGISLATIVE UPDATE ITEM#72415 1:31 P.M. Mayor Dyer welcomed Debra M. Bryan, Legislative Affairs Liaison. Mrs. Bryan expressed her appreciation to City Council for their continued support and provided the presentation attached hereto and made a part of the record. Mayor Dyer expressed his appreciation to Mrs. Bryan for the presentation. January 18, 2022 , a� D City Council % _ ffy Staff Report Subject/Title: Legislative Update—Request for Direction Author: Debra M. Bryan, Legislative Affairs Liaison Department(s): City Manager's Office Date: January 18, 2022 Type of Item: Informational Summary The first VB Weekly Legislative Report for the current General Assembly Session was emailed to City Council on January 14, 2022. Following distribution, several members requested tracking of additional bills of interest that were not part of Council's adopted Legislative Agenda. These bills are summarized below, and full text is provided as attachments. If it is the will of Council to take a position in support or opposition of any of these proposed bills,please advise and position statements will be prepared and executed accordingly. Proposed Bills SHORT TERM RENTALS SB 602:(DeSteph)Prohibits,except as provided,localities from(i)requiring or allowing the approval of neighbors or the neighborhood for the operation of short-term rental properties; (ii) imposing requirements or restrictions that exceed those of regular properties, including special parking and occupancy restrictions; or(iii)restricting short-term rentals by geographic location within the locality by means other than the normal general land use and zoning authority. The bill expands the current definition of short-term rental to include any house provided for such purpose. GROCERY TAX HB 90: (McNamara) SB 380: (McDougle) Exempts food purchased for human consumption and essential personal hygiene products(the grocery tax)from all state,regional,and local sales taxes. The bill dedicates state sales tax revenue to provide a supplemental school payment to counties and cities. For fiscal year 2023, the payment is the county or city's fiscal year 2022 distribution of revenue from the grocery tax. For fiscal year 2024 and after, the payment is the previous year's payment multiplied by the county or city's local sales tax index,defined in the bill as the ratio by which sales tax revenues in a county or city for the current year exceed the previous year's revenues. HRT STATE RECORDATION TAX FUNDING HB 978: (Durant) SB 363: (Stuart) Reestablishes the distribution of$20 million of state recordation tax revenue to counties and cities to be used for transportation or public education purposes. Legislation in 2020 dedicated the$20 million to the Hampton Roads Regional Transit Program. SCHOOL BOARD MEMBER ADDITION; TERM COMPLETION UPON REDISTRICTING HB 1031: (Davis) Requires in certain localities that the passage of an ordinance providing for the election of an additional member of the governing body on an at-large basis must coincide with an equal increase in the membership of the local elected school board on an at-large basis. The bill also clarifies that local elected officials in office on the effective date of a court-ordered redistricting plan must be allowed to complete their terms of office,regardless of loss of residency in a particular district due to reapportionment or redistricting. The Problem (or The Opportunity or The Issue) • As of this writing, 2026 bills have been filed between the House and Senate. Committee and subcommittee hearings are taking place daily, so time is of the essence. • Due to the volume of bills and the protocol of individual committees, there is no way of knowing exactly when each of the items will be placed on a committee agenda for hearing. • Since these bills are outside the scope of lobbying authorization initially provided to the Legislative Affairs Liaison by Council,no position will be taken unless Council so directs. Alternatives for City/City Council to Consider • Direct the Legislative Affairs Liaison to support or oppose the bill as presented on behalf of the Virginia Beach City Council; or • Direct the Legislative Affairs Liaison to propose amendment(s)to the bill, and authorize support or opposition pending the amendment; or • Remain neutral and do not take any action on the proposed bill Attachments • VB Weekly Legislative Report—January 14, 2022 • Proposed Text of SB602,HB90/SB380,HB978/SB363, HB1031 itek, :. £ WO CAP ITO LS CONSULTth! ' L [ ç - EederaI B State Government Strategies • • lit City of Virginia Beach Weekly Legislative Report: January 14th 2022 Session timeline: January 12th: Commenced February 16th: Crossover March 12th: Session adjourns April 27th: Reconvened Session Bills that correspond with Virginia Beach's legislative package: HB 13 Libraries; assessment for costs in civil actions, disbursement for law libraries. HB 249 Virginia Telecommunications Initiative; eligibility. HB 444 Virginia Freedom of Information Act; meetings conducted through electronic meetings. HB 627 Violation of ordinances; schedule of civil penalties. HB 980 Virginia Freedom of Information Act; exclusions to application of chapter. SB 274 Charter: City of Virginia Beach. Particular bills of interest: Tax- • HB 7: (Ware) Requires accommodations providers to submit certain supporting documentation, upon request by a locality, when remitting transient occupancy taxes collected. • HB 90: (McNamara) Exempts food purchased for human consumption and essential personal hygiene products (the grocery tax) from all state, regional, and local sales taxes. The bill dedicates state sales tax revenue to provide a supplemental school payment to counties and cities. For fiscal year 2023, the payment is the county or city's fiscal year 2022 distribution of revenue from the grocery tax. For fiscal year 2024 and after, the payment is the previous year's payment multiplied by the county or city's local sales tax index, defined in the bill as the ratio by which sales tax revenues in a county or city for the current year exceed the previous year's revenues. • HB 297: (McNamara) Suspends the imposition of any regional fuels tax in the Commonwealth on and after July 1, 2022, but before July 1, 2023. • HB 978: (Durant) Reestablishes the distribution of$20 million of state recordation tax revenue to counties and cities to be used for transportation or public education purposes. Legislation in 2020 dedicated the $20 million to the Hampton Roads Regional Transit Program. • SB 363: (Stuart) Reestablishes the distribution of $20 million of state recordation tax revenue to counties and cities to be used for transportation or public education purposes. ill-WO CAPITOLS CONSULTING t'..V ""444.. 6 State Government Stratec ies Legislation in 2020 dedicated the $20 million to the Hampton Roads Regional Transit Program. • HB 1010: (Durant) Requires the governing body of a locality to hold a referendum before making most increases in their real property tax rate. Under current law, the governing body of a locality is required to limit their real property tax rate to a rate that would collect no more than 101 percent of the amount of real property taxes collected for the previous year. Increases above this rate may only be imposed if the locality holds a public meeting. The bill replaces the public meeting requirement with a requirement that any such increase be approved in a referendum. • BB 1059: (Cordoza) Suspends the imposition and collection of the state and regional taxes on gasoline and diesel fuel until July 1, 2023. The bill contains an emergency clause. • SB 380: (McDougle) Exempts food purchased for human consumption and essential personal hygiene products (the grocery tax) from all state,regional, and local sales taxes. The bill dedicates state sales tax revenue to provide a supplemental school payment to counties and cities. For fiscal year 2023, the payment is the county or city's fiscal year 2022 distribution of revenue from the grocery tax. For fiscal year 2024 and after, the payment is the previous year's payment multiplied by the county or city's local sales tax index, defined in the bill as the ratio by which sales tax revenues in a county or city for the current year exceed the previous year's revenues. Education- • HB 128: (Davis) Establishes the Virginia Diverse Educator Scholarship Fund and Program, to be administered by the State Council of Higher Education for Virginia, for the purpose of annually providing to each Historically Black College or University in the Commonwealth (defined in the bill as Hampton University, Norfolk State University, Virginia State University, and Virginia Union University) • HB 251: (Simonds) Encourages each school board to enter into a collaborative agreement with the local governing body to set aside in a separate fund any sums appropriated to the school board by the local governing body that are unexpended by the school board in any year in order to use such sums to finance school maintenance, renovation, or construction in the local school division. The bill declares any school board that fails to enter into such a collaborative agreement ineligible to participate in any state grant, loan, or bond program that supports school maintenance, renovation, or construction. This bill is a recommendation of the Commission on School Construction and Modernization. • HB 531: (Hudson) Authorizes all counties and cities to impose an additional local sales and use tax at a rate not to exceed one percent, with the revenue used only for capital ,4**„ ,ii','12.1.1.TWO CAPITOLS CONSULTING 1--4 r r dera) B State Government Stratecies projects for the construction or renovation of schools. Under the bill, the tax can only be imposed if it is initiated by a resolution of the local governing body and approved by the voters in a referendum. The bill requires the governing body to specify in the enacting ordinance the time period, not to exceed 20 years, for which the tax would be imposed, and revenue from the tax is required to be used solely for capital projects for new construction or major renovation of schools in the locality enacting the tax. • HB 1057: (Cordoza) Establishes the 10-member Commission on Historically Black Colleges and Universities in the Commonwealth in the legislative branch to identify and recommend legislative priorities and policies for adoption or examination by the General Assembly and the Governor in order to provide ongoing support in developing and reviewing services and funding related to the five historically black colleges and universities in the Commonwealth, which are Hampton University, Norfolk State University, Virginia State University, Virginia Union University, and Virginia University of Lynchburg. • HJ 27: (Cordoza) Designates January 29, in 2023 and in each succeeding year, as William R. Harvey Day in Virginia. Transportation- • HB 1085: (Cordoza) Adds to the Peninsula Airport Commission (the Commission) two members from the City of Poquoson, two members from the City of Williamsburg, one member from James City County, and one member from York County, appointed by the governing bodies thereof. The bill provides that any such locality is automatically excluded from the Commission if it fails to pay its proportionate share of the cost of participation by June 30, 2023. The bill repeals various provisions authorizing certain localities to join the Commission upon the terms and consent of the Commission. The bill provides a schedule for original appointments and requires the City of Newport News to determine which two of its four members will continue as members and provides that the terms of the other two members representing the City of Newport News expire on July 1, 2022. FOIA/COIA- • HB 154: (March) Requires the establishment of a publicly available, centralized database for all public records. All public bodies will be required to transfer any public records in its possession to the database. • BB 167: (Ransone) Provides that in any instance in which a locality has submitted a correct and timely notice request to such newspaper and the newspaper fails to publish the notice, or publishes the notice incorrectly, such locality shall be deemed to have met imbk WO CAPITOLS CONSULTING r -F deral B State Government Strategies t.{ the appropriate notice requirements so long as the notice was published in the next available edition of a newspaper having general circulation in the locality. • HB 307: (Freitas) Provides that a public body subject to the Virginia Freedom of Information Act shall make all reasonable efforts to supply records requested by a citizen at the lowest possible cost. The bill also requires a public body to notify the requester in writing of any estimated costs for the supplying of requested records prior to conducting a search for such records. • HB 331 (Krizek) Adds a requirement that a request for public records made pursuant to the Virginia Freedom of Information Act shall be made in writing and sent by the requester to the public body by registered mail, certified mail, or any other similar first-class mail tracking method used or approved by the United States Postal Service. • HB 599: (Roem) Prohibits a public body from charging a requester for any costs incurred during the first two hours spent accessing or searching for requested records when such requester has made four or fewer individual record requests to such public body within 31 consecutive days. • HB 687: (Kory) Changes the definition of "meeting" for purposes of the Virginia Freedom of Information Act to mean an assemblage of at least a quorum of the members of a public body. Under current law, a meeting is defined as an assemblage of as many as three members or a quorum, if less than three members, of a public body. • HB 722: (Gooditis) Allows a local public body that serves in an advisory capacity to gather through electronic communication means without a quorum of the public body physically assembled at one primary or central meeting location if certain conditions, outlined in the bill, are met. Voting/Elections- • HB 1082: (Leftwich) Removes a provision that requires local elections for mayor, members of a local governing body, or members of an elected school board to be held at the time of the November general election. The bill allows cities and towns that made the transition between July 1, 2021, and July 1, 2022,to provide by ordinance for its reversal. • HB 1031: (Davis) Requires in certain localities that the passage of an ordinance providing for the election of an additional member of the governing body on an at-large basis must coincide with an equal increase in the membership of the local elected school board on an at-large basis. The bills also clarifies that local elected officials in office on the effective date of a court-ordered redistricting plan must be allowed to complete their terms of office, regardless of loss of residency in a particular district due to reapportionment or redistricting. i-� --j - ' WO CAPITOLS CONSULTING oi ffi1[ -EedernI E State Government Strategies Tr mil • HB 1109: (LaRock) Removes a provision that requires local elections for mayor, members of a local governing body, or members of an elected school board to be held at the time of the November general election. The bill allows cities and towns that made the transition between July 1, 2021, and July 1, 2022,to provide by ordinance for its reversal. • SB 147: (Suetterlein) Narrows the scope of existing provisions that require all municipal elections to be held in November by applying those provisions only to cities with a population greater than 200,000. • HB 43: (Ware) Provides that if an act of assembly is passed by the 2022 Session of the General Assembly that authorizes the operation of retail marijuana stores in the Commonwealth, such retail marijuana stores may be located only in localities that have approved the operation of retail marijuana stores through a referendum held in accordance with the provisions of the bill. Gaming- • HB 571: (Krizek) Raises from 18 to 21 years of age the minimum age for a person to wager on or conduct any wagering on the outcome of a horse race or to be admitted into a satellite facility without being accompanied by such person's parent or legal guardian. (Also has a Senate companion bill) • I-1B 1134: (Taylor) Adds Petersburg to the list of cities eligible to host a casino in the Commonwealth. The bill also provides that the governing body of any eligible host city that holds a local referendum on the question of whether casino gaming should be permitted in such city that subsequently fails shall be prohibited from holding another local referendum on the same question for a period of five years from the date of the last referendum. (Also has a Senate companion bill) Economic Development- • FIB 119: (March) Creates the Public-Private Competition Act, which prohibits public bodies from engaging in any commercial activity, defined in the bill to mean any activity that can be performed by an existing private business. Housing- • HB 635: (Carr) Requires cities and towns in the Commonwealth to develop and promulgate housing plans that address the supply of safe, sanitary, and affordable shelter for all current and anticipated residents of their communities. • SB 602: (DeSteph) Prohibits, except as provided, localities from (i)requiring or allowing the approval of neighbors or the neighborhood for the operation of short-term rental properties; (ii) imposing requirements or restrictions that exceed those of regular -00%, Ili-TWO CAPITOLS CONSULTING I deral B State Government Strategies Ltilw111t- v,:: properties, including special parking and occupancy restrictions; or (iii) restricting short-term rentals by geographic location within the locality by means other than the normal general land use and zoning authority. The bill expands the current definition of short-term rental to include any house provided for such purpose. Public Safety- • HB 950: (Webert) Establishes a framework for the creation of a retail marijuana market in the Commonwealth. The bill creates a regulatory and licensing structure for such retail market and for the cultivation, manufacture, and wholesale of marijuana and marijuana products, to be administered by the Virginia Cannabis Control Authority. The bill also relocates and modifies numerous criminal provisions regarding marijuana offenses. Resiliency- • HB 5: (Morefield) Establishes the Flood Relief Fund (the Fund), funded by reducing the allocation of Regional Greenhouse Gas Initiative (RGGI) funds to the Community Flood Preparedness Fund from 45 to 40 percent and allocating the five percent to the Fund. • HB 602: (Hayes) Creates the Commonwealth Flood Board as a policy board in the executive branch • BB 845: (Bloxom) Creates the Resilient Virginia Revolving Loan Fund, for which sums are appropriated by the General Assembly, and that is administered and managed by the Virginia Resources Authority, with oversight given to the Soil and Water Conservation Board. • HB 847: (Bloxom) Establishes the Coastal Virginia Resiliency Authority (the Authority) as a body politic and corporate, a political subdivision of the Commonwealth. Land Use- • rIB541: (Convirs-Fowler) Allows any locality to adopt an ordinance providing for the conservation of trees during the land development process. Under current law, only a locality within Planning District 8 that meets certain population density and nonattainment classification criteria is authorized to adopt such an ordinance. • HB 610: (Roem) Allows a family member or descendant of a deceased person buried in a cemetery that is located on private property to petition the circuit court of the county or city where the property is located for interment rights upon such property. • HB 706: (Keam) Changes the time for minimum canopy coverage for all localities from 20 years to 10 years and removes special provisions that had allowed for 10 years for the City of Williamsburg and local ordinances adopted pursuant to § 15.2-961 prior to July 1, 1990. :,,„,,TWO CAPITOLS CONSULTING deral B State Government Strategies • HB 615: (Roem) Provides that no cemetery owned by a county or city shall be sold to a private owner unless the county or city has made a good faith effort to ensure, prior to sale, that the ownership of such cemetery is vested in the estate of the last owner of record or that permission for the sale has been granted by the family members or descendants of such owner. • HB 961: (Roem) Requires every locality to adopt an ordinance setting forth a register of identified cemeteries, graveyards, or other places of burial located on private property not belonging to any memorial or monumental association. • SB 537: (Marsden) Expands to all localities provisions that currently only allow certain localities to adopt an ordinance providing for the planting and replacement of trees during the development process. • SB 477: (McClellan) Changes the date of establishment that qualifies historical African American cemeteries for appropriated funds to care for such cemeteries from prior to January 1, 1900,to prior to January 1, 1948. (Also has a Senate companion bill) Human Resources- • HB 1017: (Guzman) Defines compensable hours worked, for the purposes of the Virginia Overtime Wage Act, as the amount of time an employee is on duty or at a prescribed place of work and any time an employee is suffered or permitted to work. • SB 365: (Stuart) Provides that for the purposes of the Virginia Overtime Wage Act, the term "employee" does not include certain persons excluded from the definition of "employee" under the federal Fair Labor Standards Act(the federal act). 2022 SESSION INTRODUCED 22102201D 1 SENATE BILL NO.602 2 Offered January 12,2022 3 Prefiled January 12,2022 Z 4 A BILL to amend and reenact § 15.2-983 of the Code of Virginia, relating to short-term rental 5 properties; definition; locality requirements and restrictions. 6 Patron—DeSteph 7 0 8 Referred to Committee on Local Government 9 10 Be it enacted by the General Assembly of Virginia: 11 1. That § 15.2-983 of the Code of Virginia is amended and reenacted as follows: 12 § 15.2-983. Creation of registry for short-term rental of property. l 1 13 A. As used in this section: 14 "Operator" means the proprietor of any dwelling, lodging, or sleeping accommodations offered as a " 15 short-term rental, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, 16 or any other possessory capacity. 17 "Short-term rental" means the provision of a room of, space, or house that is suitable or intended for 18 occupancy for dwelling, sleeping, or lodging purposes, for a period of fewer than 30 consecutive days, 19 in exchange for a charge for the occupancy. 20 B. 1. Notwithstanding any other provision of law, general or special, any locality may, by ordinance, 21 establish a short-term rental registry and require operators within the locality to register annually. The 22 registration shall be ministerial in nature and shall require the operator to provide the complete name of 23 the operator and the address of each property in the locality offered for short-term rental by the bfd 24 operator. A locality may charge a reasonable fee for such registration related to the actual costs of c 25 establishing and maintaining the registry. 26 2. No ordinance shall require a person to register pursuant to this section if such person is (i) 27 licensed by the Real Estate Board or is a property owner who is represented by a real estate licensee; 28 (ii) registered pursuant to the Virginia Real Estate Time-Share Act (§ 55.1-2200 et seq.); (iii) licensed or 29 registered with the Department of Health, related to the provision of room or space for lodging; or (iv) 30 licensed or registered with the locality, related to the rental or management of real property, including 31 licensed real estate professionals, hotels, motels, campgrounds, and bed and breakfast establishments. 32 C. 1. If a locality adopts a registry ordinance pursuant to this section, such ordinance may include a 33 penalty not to exceed $500 per violation for an operator required to register who offers for short-term 34 rental a property that is not registered with the locality. Such ordinance may provide that unless and 35 until an operator pays the penalty and registers such property, the operator may not continue to offer 36 such property for short-term rental. Upon repeated violations of a registry ordinance as it relates to a N 37 specific property, an operator may be prohibited from registering and offering that property for 38 short-term rental. 39 2. Such ordinance may further provide that an operator required to register may be prohibited from 40 offering a specific property for short-term rental in the locality upon multiple violations on more than 41 three occasions of applicable state and local laws, ordinances, and regulations, as they relate to the 42 short-term rental. 43 D. Except as otherwise provided in this section, nothing herein shall be construed to allow a locality 44 to (i) require or allow approval of neighbors or of a neighborhood to authorize operation of a 45 short-term rental property; (ii) impose restrictions on short-term rental properties not applicable to 46 other properties, including special parking and occupation restrictions; or (iii) restrict short-term rentals 47 by geographic location within the locality by means other than general land use and zoning authority. 48 E. Except as provided in this section, nothing herein shall be construed to prohibit, limit, or 49 otherwise supersede existing local authority to regulate the short-term rental of property through general 50 land use and zoning authority. Nothing in this section shall be construed to supersede or limit contracts 51 or agreements between or among individuals or private entities related to the use of real property, 52 including recorded declarations and covenants, the provisions of condominium instruments of a 53 condominium created pursuant to the Virginia Condominium Act (§ 55.1-1900 et seq.), the declaration 54 of a common interest community as defined in § 54.1-2345, the cooperative instruments of a 55 cooperative created pursuant to the Virginia Real Estate Cooperative Act (§ 55.1-2100 et seq.), or any 56 declaration of a property owners' association created pursuant to the Property Owners' Association Act 57 (§ 55.1-1800 et seq.). 2022 SESSION INTRODUCED 22100681D 1 HOUSE BILL NO.90 `..� 2 Offered January 12,2022 3 Prefiled January 6,2022 4 A BILL to amend and reenact §, 58.1-603.1, as it is currently effective and as it may become effective, 1.3 5 58.1-603.2, 58.1-604.01, as it is currently effective and as it may become effective, 58.1-605.1, 6 58.1-606.1, 58.1-611.1, 58.1-638, and 58.1-2425, as it is currently effective and as it may become pj 7 effective, of the Code of Virginia, relating to sales tar; ecemption for food purchased for human 8 consumption and essential personal hygiene products. O 9 Patrons—McNamara; Senator: Suetterlein 10 C 11 Committee Referral Pending 12 ( � 13 Be it enacted by the General Assembly of Virginia: 14 1. That §§ 58.1-603.1, as it is currently effective and as it may become effective, 58.1-603.2, 15 58.1-604.01, as it is currently effective and as it may become effective, 58.1-605.1, 58.1-606.1, lj 16 58.1-611.1, 58.1-638, 58.1-2425, as it is currently effective and as it may become effective, of the 17 Code of Virginia are amended and reenacted as follows: 18 § 58.1-603.1. (Contingent expiration date) Additional state sales tax in certain counties and 19 cities. 20 A. In addition to the sales tax imposed pursuant to § 58.1-603, there is hereby levied and imposed 21 in each county and city located in a Planning District established pursuant to Chapter 42 (§ 15.2-4200 et 22 seq.) of Title 15.2 that (i) as of January 1, 2013, has a population of 1.5 million or more as shown by 23 the most recent United States Census, has not less than 1.2 million motor vehicles registered therein, and 24 has a total transit ridership of not less than 15 million riders per year across all transit systems within 25 the Planning District or (ii) as shown by the most recent United States Census meets the population e 26 criteria set forth in clause (i) and also meets the vehicle registration and ridership criteria set forth in 27 clause (i), a retail sales tax at the rate of 0.70 percent. In any case in which the tax is imposed pursuant 28 to clause (ii) such tax shall be effective beginning on the July 1 immediately following the calendar year 29 in which all of the criteria have been met. 30 B. In addition to the sales tax imposed pursuant to § 58.1-603, there is hereby levied and imposed 31 in each county and city located in Planning District 15 established pursuant to Chapter 42 (§ 15.2-4200 32 et seq.) of Title 15.2 a retail sales tax at the rate of 0.70 percent. In no case shall an additional sales tax 33 be imposed pursuant to both clause (ii) of subsection A and this subsection. 34 C. The tax imposed pursuant to subsections A and B shall not be levied upon food purchased for 35 human consumption and essential personal hygiene products. as 6uc1 terms ate defamed in § 58.1 611.1. 36 Smell tali shall be added to the rate of the state sales tax imposed pursuant to § 58.1-603 in each such e I 37 county and city and shall be subject to all the provisions of this chapter and the rules and regulations e 38 published with respect thereto. No discount under § 58.1-622 shall be allowed for the tax imposed under 39 this section. Such tax shall be administered and collected by the Tax Commissioner in the same manner 40 and subject to the same penalties as provided for the state sales tax under § 58.1-603. 41 D. The revenue generated and collected pursuant to the tax authorized under this section, less the 42 applicable portion of any refunds to taxpayers. shall be deposited by the Comptroller into special funds 43 established by law. In the case of Planning District 8. the revenue generated and collected therein shall 44 be deposited into the fund established in § 33.2-2509. In the case of Planning District 23, the revenue 45 generated and collected therein shall be deposited into the fund established in § 33.2-2600. In the case 46 of Planning District 15, the revenue generated and collected therein shall be deposited into the fund 47 established in § 33.2-3701. For additional planning districts that may become subject to this section, 48 funds shall be established by appropriate legislation. 49 §58.1-603.1. (Contingent effective date) Additional state sales tax in certain counties and cities. 50 In addition to the sales tax imposed pursuant to § 58.1-603, there is hereby levied and imposed in 51 each county and city located in a Planning District established pursuant to Chapter 42 (§ 15.2-4200 et 52 seq.) of Title 15.2 that (i) as of January 1. 2013. has a population of 1.5 million or more as shown by 53 the most recent United States Census. has not less than 1.2 million motor vehicles registered therein, and 54 has a total transit ridership of not less than 15 million riders per year across all transit systems within 55 the Planning District or (ii) as shown by the most recent United States Census meets the population 56 criteria set forth in clause (i) and also meets the vehicle registration and ridership criteria set forth in 57 clause (i), a retail sales tax at the rate of 0.70 percent. In any case in which the tax is imposed pursuant 58 to clause (ii) such tax shall be effective beginning on the July 1 immediately following the calendar year HB90 2 of 10 59 in which all of the criteria have been met. Such tax shall not be levied upon food purchased for human 60 consumption and essential personal hygiene products; as such terms are definedin § 58.1 611.1. Such 61 tax shall be added to the rate of the state sales tax imposed pursuant to § 58.1-603 in each such county 62 and city and shall be subject to all the provisions of this chapter and the rules and regulations published 63 with respect thereto. No discount under § 58.1-622 shall be allowed for the tax imposed under this 64 section. Such tax shall be administered and collected by the Tax Commissioner in the same manner and 65 subject to the same penalties as provided for the state sales tax under § 58.1-603. 66 The revenue generated and collected pursuant to the tax authorized under this section, less the 67 applicable portion of any refunds to taxpayers, shall be deposited by the Comptroller into special funds 68 established by law. In the case of Planning District 8, the revenue generated and collected therein shall 69 be deposited into the fund established in § 33.2-2509. In the case of Planning District 23. the revenue 70 generated and collected therein shall be deposited into the fund established in § 33.2-2600. For 71 additional Planning Districts that may become subject to this section. funds shall be established by 72 appropriate legislation. 73 § 58.1-603.2. (Contingent expiration date) Additional state sales and use tax in certain counties 74 and cities of historic significance; Historic Triangle Marketing Fund. 75 A. For purposes of this section. "Historic Triangle" means all of the City of Williamsburg and the 76 Counties of James City and York. 77 B. In addition to the sales tax imposed pursuant to §§ 58.1-603 and 58.1-603.1. there is hereby 78 levied and imposed in the Historic Triangle a retail sales tax at the rate of one percent. Duel} tax shall 79 not be levied upon food purchased for human consumption and essential personal hygiene products; as 80 such terms are defined in§ 58.1 611.1. Such tax shall be added to the rate of the state sales tax imposed 81 pursuant to §§ 58.1-603 and 58.1-603.1 in each such county and city and shall be subject to all the 82 provisions of this chapter and the rules and regulations published with respect thereto. No discount 83 under § 58.1-622 shall be allowed for the tax imposed under this section. Such tax shall be administered 84 and collected by the Tax Commissioner in the same manner and subject to the same penalties as 85 provided for the state sales tax under § 58.1-603. 86 C. In addition to the use tax imposed pursuant to §§ 58.1-604 and 58.1-604.01, there is hereby levied 87 and imposed in the Historic Triangle a retail use tax at the rate of one percent. Such tax shall net be 88 levied upon feed purchased for human consumption and essential personal hygiene produce as such 89 terms are defined in § 58.1 611.1. Such tax shall be added to the rate of the state use tax imposed 90 pursuant to §§ 58.1-604 and 58.1-604.01 in each such county and city and shall be subject to all the 91 provisions of this chapter and the rules and regulations published with respect thereto. No discount 92 under § 58.1-622 shall be allowed for the tax imposed under this section. Such tax shall be administered 93 and collected by the Tax Commissioner in the same manner and subject to the same penalties as 94 provided for the state use tax under § 58.1-604. 95 D. The revenue generated and collected pursuant to the tax authorized under this section. less the 96 applicable portion of any refunds to taxpayers. shall be deposited by the Comptroller as follows: 97 1. Fifty percent of the revenues shall be deposited into the Historic Triangle Marketing Fund created 98 pursuant to subsection E and used for the purposes set forth therein; and 99 2. Fifty percent of the revenues shall be deposited into a special fund hereby created on the books of 100 the Comptroller under the name "Collections of Historic Triangle Sales Tax" and distributed to the 101 locality in which the sales or use tax was collected. The revenues received by a locality pursuant to this 102 subsection shall not be used to reduce the amount of other revenues appropriated by such locality to or 103 for use by the Greater Williamsburg Chamber and Tourism Alliance below the amount provided in fiscal 104 year 2018. 105 E. 1. There is hereby created in the state treasury a special nonreverting fund to be known as the 106 Historic Triangle Marketing Fund. referred to in this section as "the Fund," to be managed and 107 administered by the Tourism Council of the Greater Williamsburg Chamber and Tourism Alliance. The 108 Fund shall be established on the books of the Comptroller. All revenues generated pursuant to this 109 section shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the 110 Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including 111 interest thereon. at the end of each fiscal year shall not revert to the general fund but shall remain in the 112 Fund. Moneys in the Fund shall be used solely for the purposes of marketing, advertising, and 113 promoting the Historic Triangle area as an overnight tourism destination, with the intent to attract 114 visitors from a sufficient distance so as to require an overnight stay of at least one night. as set forth in 115 this subsection. Expenditures and disbursements from the Fund shall be made by the State Treasurer on 116 warrants issued by the Comptroller upon written request signed by the Secretary of Finance. 117 2. The Tourism Council of the Greater Williamsburg Chamber and Tourism Alliance (the Council) 118 shall consist of members as follows: one member of the James City County Board of Supervisors, one 119 member of the York County Board of Supervisors; one member of the Williamsburg City Council. one 120 representative of the Colonial Williamsburg Foundation. one representative of the Jamestown-Yorktown 3 of 10 121 Foundation, one representative of Busch Gardens Williamsburg, one representative of Historic 122 Jamestown. one representative of the Williamsburg Hotel and Motel Association, and one representative 123 of the Williamsburg Area Restaurant Association. The Chief Executive Officer of the Virginia Tourism H 124 Alliance and the Chief Executive Officer of the Virginia Tourism Corporation shall serve as ex officio. 125 non-voting members of the Council. 126 3. The Council shall establish the Historic Triangle Office of Marketing and Promotion (the Office) 1.3 127 to administer a program of marketing, advertising, and promotion to attract visitors to the Historic 128 Triangle area, as required by this subsection. The Council shall use moneys in the Fund to fund the pay " 129 for necessary expenses of the Office and to fund the activities of the Office. The Office shall be O 130 overseen by a professional with extensive experience in marketing or advertising and in the tourism 131 industry. The Office shall be responsible for (i) developing and implementing, in consultation with the 0-4 132 Council, long-term and short-term strategic plans for advertising and promoting the numerous facilities. 133 venues, and attractions devoted to education, historic preservation, amusement, entertainment, and dining 134 in the Historic Triangle as a cohesive and unified travel destination for local, national, and international 135 travelers; (ii) assisting, upon request, with the coordination of cross-advertising and cross-marketing `1 136 efforts between various tourism venues and destinations in the Historic Triangle region; (iii) identifying 137 strategies for both increasing the number of overnight visitors to the region and increasing the average 138 length of stay of tourists in the region; and (iv) performing any other function related to the promotion 139 of the Historic Triangle region as may be identified by the Council. 140 4. The Council shall report annually on its long-term and short-term strategic plans and the 141 implementation of such plans; marketing efforts; metrics regarding tourism in the Historic Triangle 142 region; use of the funds in the Fund; and any other details relevant to the work of the Council and the 143 Office. Such report shall be delivered no later than December 1 of each year to the managers or chief 144 executive officers of the City of Williamsburg and the Counties of James City and York, and to the 145 Chairmen of the House Committees on Finance and Appropriations and the Senate Committee on 146 Finance and Appropriations. 147 § 58.1-604.01. (Contingent expiration date) Additional state use tax in certain counties and 148 cities. 149 A. In addition to the use tax imposed pursuant to § 58.1-604, there is hereby levied and imposed in 150 each county and city located in a Planning District established pursuant to Chapter 42 (§ 15.2-4200 et 151 seq.) of Title 15.2 that (i) as of January 1, 2013, has a population of 1.5 million or more, as shown by 152 the most recent United States Census, has not less than 1.2 million motor vehicles registered therein, and 153 has a total transit ridership of not less than 15 million riders per year across all transit systems within 154 the Planning District or (ii) as shown by the most recent United States Census meets the population 155 criteria set forth in clause (i) and also meets the vehicle registration and ridership criteria set forth in 156 clause (i), a retail use tax at the rate of 0.70 percent. In any case in which the tax is imposed pursuant 157 to clause (ii) such tax shall be effective beginning on the July 1 immediately following the calendar year 158 in which all of the criteria have been met. 159 B. In addition to the sales tax imposed pursuant to § 58.1-603, there is hereby levied and imposed 160 in each county and city located in Planning District 15 established pursuant to Chapter 42 (§ 15.2-4200 161 et seq.) of Title 15.2 a retail use tax at the rate of 0.70 percent. In no case shall an additional use tax be 162 imposed pursuant to both clause (ii) of subsection A and this subsection. 163 C. The tax imposed pursuant to subsections A and B shall net be levied wen feed purchased for 164 human eensomptien and essential personal hygiene produets7 as sin terms ere deed ia § 58.1 611.1. 165 Sue- tax shall be added to the rate of the state use tax imposed pursuant to § 58.1-604 in such county 166 and city and shall be subject to all the provisions of this chapter and the rules and regulations published 167 with respect thereto. No discount under § 58.1-622 shall be allowed for the tax described under this 168 section. Such tax shall be administered and collected by the Tax Commissioner in the same manner and 169 subject to the same penalties as provided for the state use tax under § 58.1-604. 170 D. The revenue generated and collected pursuant to the tax authorized under this section. less the 171 applicable portion of any refunds to taxpayers. shall be deposited by the Comptroller into special funds 172 established by law. In the case of Planning District 8. the revenue generated and collected therein shall 173 be deposited into the fund established in § 33.2-2509. In the case of Planning District 23, the revenue 174 generated and collected therein shall be deposited into the fund established in § 33.2-2600. In the case 175 of Planning District 15. the revenue generated and collected therein shall be deposited into the fund 176 established in § 33.2-3701. For any additional planning districts that may become subject to this section. 177 funds shall be established by appropriate legislation. 178 §58.1-604.01. (Contingent effective date) Additional state use tax in certain counties and cities. 179 In addition to the use tax imposed pursuant to § 58.1-604. there is hereby levied and imposed in each 180 county and city located in a Planning District established pursuant to Chapter 42 (§ 15.2-4200 et seq.) of 181 Title 15.2 that (i) as of January 1. 2013. has a population of 1.5 million or more. as shown by the most HB90 4 of 10 182 recent United States Census, has not less than 1.2 million motor vehicles registered therein, and has a 183 total transit ridership of not less than 15 million riders per year across all transit systems within the 184 Planning District or (ii) as shown by the most recent United States Census meets the population criteria 185 set forth in clause (i) and also meets the vehicle registration and ridership criteria set forth in clause (i). 186 a retail use tax at the rate of 0.70 percent. In any case in which the tax is imposed pursuant to clause 187 (ii) such tax shall be effective beginning on the July 1 immediately following the calendar year in which 188 all of the criteria have been met. Sue-la to shall not be levied upon food purchased for human 189 consumption and essential personal hygiene products, as such terms are defined in § 58.1 611.1. Such 190 tax shall be added to the rate of the state use tax imposed pursuant to § 58.1-604 in such county and 191 city and shall be subject to all the provisions of this chapter and the rules and regulations published with 192 respect thereto. No discount under § 58.1-622 shall be allowed for the tax described under this section. 193 Such tax shall be administered and collected by the Tax Commissioner in the same manner and subject 194 to the same penalties as provided for the state use tax under § 58.1-604. 195 The revenue generated and collected pursuant to the tax authorized under this section, less the 196 applicable portion of any refunds to taxpayers, shall be deposited by the Comptroller into special funds 197 established by law. In the case of Planning District 8, the revenue generated and collected therein shall 198 be deposited into the fund established in § 33.2-2509. In the case of Planning District 23, the revenue 199 generated and collected therein shall be deposited into the fund established in § 33.2-2600. For any 200 additional Planning Districts that may become subject to this section, funds shall be established by 201 appropriate legislation. 202 § 58.1-605.1. Additional local sales tax in certain localities; use of revenues for construction or 203 renovation of schools. 204 A. 1. In addition to the sales tax authorized under § 58.1-605, a qualifying locality may levy a 205 general retail sales tax at a rate not to exceed one percent as determined by its governing body to 206 provide revenue solely for capital projects for the construction or renovation of schools in each such 207 locality. Such tax shall be added to the rates of the state and local sales tax imposed by this chapter and 208 shall be subject to all the provisions of this chapter and the rules and regulations published with respect 209 thereto. No discount under § 58.1-622 shall be allowed on this local sales tax. 210 2. Any tax imposed pursuant to this section shall expire (i) if the capital projects for the construction 211 or renovation of schools are to be financed by bonds or loans, on the date by which such bonds or loans 212 shall be repaid or (ii) if the capital projects for the construction or renovation of schools are not to be 213 financed by bonds or loans, on a date chosen by the governing body and specified in any resolution 214 passed pursuant to the provisions of subdivision B 1. Such expiration date shall not be more than 20 215 years after the date of the resolution passed pursuant to the provisions of subdivision B 1. 216 B. 1. This tax may be levied only if the tax is approved in a referendum within the qualifying 217 locality held in accordance with § 24.2-684 and initiated by a resolution of the local governing body. 218 Such resolution shall state (i) if the capital projects for the construction or renovation of schools are to 219 be financed by bonds or loans. the date by which such bonds or loans shall be repaid or (ii) if the 220 capital projects for the construction or renovation of schools are not to be financed by bonds or loans, a 221 specified date on which the sales tax shall expire. 222 2. The clerk of the circuit court shall publish notice of the referendum in a newspaper of general 223 circulation in the qualifying locality once a week for three consecutive weeks prior to the election. The 224 question on the ballot for the referendum shall include language stating (i) that the revenues from the 225 sales tax shall be used solely for capital projects for the construction or renovation of schools and (ii) 226 the date on which the sales tax shall expire. 227 C. The governing body of the qualifying locality, if it elects to impose a local sales tax under this 228 section after approval at a referendum as provided in subsection B shall do so by the adoption of an 229 ordinance stating its purpose and referring to this section and providing that such ordinance shall be 230 effective on the first day of a month at least 120 days after its adoption. Such ordinance shall state the 231 date on which the sales tax shall expire. A certified copy of such ordinance shall be forwarded to the 232 Tax Commissioner so that it will be received within five days after its adoption. 233 D. Any local sales tax levied under this section shall be administered and collected by the Tax 234 Commissioner in the same manner and subject to the same exemptions and penalties as provided for the 235 state sales taxi however, the leeal ;ales tag levied under this section shall net be levied en feed 236 purchased for human consumption OF essential personal hygiene products, as such terms are defined in 237 § 58.1 611.1. 238 E. All local sales tax moneys collected by the Tax Commissioner under this section shall be paid 239 into the state treasury to the credit of a special fund that is hereby created on the Comptroller's books 240 for each qualifying locality under the name "Collections of Additional Local Sales Taxes in 241 (INSERT NAME OF THE QUALIFYING LOCALITY)." Each fund shall be administered as provided 242 in § 58.1-605. A separate fund shall be created for each qualifying locality. Only local sales tax moneys 243 collected in that qualifying locality shall be deposited in that locality's fund. 5 of 10 244 F. As soon as practicable after the local sales tax moneys have been paid into the state treasury in 245 any month for the preceding month. the Comptroller shall draw his warrant on the State Treasurer in the 246 proper amount in favor of each qualifying locality, and such payments shall be charged to the account 247 of the qualifying locality under its special fund created by this section. If errors are made in any such - . 248 payment, or adjustments are otherwise necessary, whether attributable to refunds to taxpayers or to some .4 249 other fact, the errors shall be corrected and adjustments made in the payments for the next two months 250 as follows: one-half of the total adjustment shall be included in the payment for each of the next two 1-4251 months. In addition, the payment shall include a refund of amounts erroneously not paid to each 252 qualifying locality and not previously refunded during the three years preceding the discovery of the O 253 error. A correction and adjustment in payments described in this subsection due to the misallocation of 254 funds by the dealer shall be made within three years of the date of the payment error. - . 255 G. The revenues from this tax shall be used solely for capital projects for new construction or major 256 renovation of schools in the qualifying locality, including bond and loan financing costs related to such 257 construction or renovation. 258 § 58.1-606.1. Additional local use tax in certain localities; use of revenues for construction or 259 renovation of schools. 11 -11 260 A. 1. The governing body of a qualifying locality may levy a use tax at the rate of such sales tax 0-11 261 under § 58.1-605.1 to provide revenue for capital projects for the construction or renovation of schools 262 in such locality. Such tax shall be added to the rates of the state and local use tax imposed by this 263 chapter and shall be subject to all the provisions of this chapter, and all amendments thereof, and the 264 rules and regulations published with respect thereto. except that no discount under § 58.1-622 shall be 265 allowed on a local use tax. 266 2. Any tax imposed pursuant to this section shall expire (i) if the capital projects for the construction 267 or renovation of schools are to be financed by bonds or loans, on the date by which such bonds or loans 268 shall be repaid or (ii) if the capital projects for the construction or renovation of schools are not to be 269 financed by bonds or loans, on a date chosen by the governing body and specified in any resolution a 270 passed pursuant to the provisions of subsection B. Such expiration date shall not be more than 20 years t 271 after the date of the resolution passed pursuant to the provisions of subsection B. 272 B. The governing body of the qualifying locality, if it elects to impose a local use tax under this 273 section may do so only if it has previously imposed the local sales tax authorized by § 58.1-605.1, by 274 the adoption of an ordinance stating its purpose and referring to this section and providing that the local 275 use tax shall become effective on the first day of a month at least 120 days after its adoption. Such 276 ordinance shall state the date on which the use tax shall expire. A certified copy of such ordinance shall 277 be forwarded to the Tax Commissioner so that it will be received within five days after its adoption. 278 C. Any local use tax levied under this section shall be administered and collected by the Tax 279 Commissioner in the same manner and subject to the same exemptions and penalties as provided for the 280 state use taxi however, the local use tax levied under this sects shall net be levied en feed used 281 fe* human consumptionof essential personal hygiene products. as seep terms a*e defined in 282 § 58.1 611.1. 283 D. The local use tax authorized by this section shall not apply to transactions to which the sales tax 284 applies, the sites of which for state and local sales tax purposes is the locality of location of each place 285 of business of every dealer paying the tax to the Commonwealth without regard to the locality of 286 possible use by the purchasers. However, the local use tax authorized by this section shall apply to 287 tangible personal property purchased outside the Commonwealth for use or consumption within the 288 locality imposing the local use tax. or stored within the locality for use or consumption, where the 289 property would have been subject to the sales tax if it had been purchased within the Commonwealth. 290 The local use tax shall also apply to leases or rentals of tangible personal property where the place of 291 business of the lessor is outside the Commonwealth and such leases or rentals are subject to the state 292 tax. Moreover, the local use tax shall apply in all cases in which the state use tax applies. 293 E. Out-of-state dealers who hold certificates of registration to collect the use tax from their customers 294 for remittance to the Commonwealth shall. to the extent reasonably practicable, in filing their monthly 295 use tax returns with the Tax Commissioner. break down their shipments into the Commonwealth by 296 counties and cities so as to show the county or city of destination. If. however, the out-of-state dealer is 297 unable accurately to assign any shipment to a particular county or city, the local use tax on the tangible 298 personal property involved shall be remitted to the Commonwealth by such dealer without attempting to 299 assign the shipment to any county or city. 300 F. Local use tax revenue shall be deposited in the special fund established pursuant to subsection E 301 of§ 58.1-605.1. The Comptroller shall distribute the revenue to the qualifying locality. 302 G. All revenue from this local use tax revenue shall be used solely for capital projects for new 303 construction or major renovation of schools in the qualifying locality, including bond and loan financing 304 costs related to such construction or renovation. HB90 6 of 10 305 § 58.1-611.1. Exemption for food purchased for human consumption and essential personal 306 hygiene products. 307 A. The tag imposed by §§ 58.1 603 and 58.1 604 ea food purchased for human consumption and 308 essential personal hygiene products shall be one and one-half percent of the gross sales price. The 309 revenue from the tam shall be distributed as follows: ( the revenue from the tax at the rate of eee-half 310 percent shall be distributed as provided ie subsection A of § 58.1 638 and ( the revenue the tax 311 at the rate of one percent shall be distributed as provided G and D of§- 58.1 638. 312 13, The provisions of this section shall not affect the imposition of tax en food purchased for human 313 consumption and essential personal hygiene products pursuant to §§ 58.1 605 and 5.8.1-606- 314 c No tax shall be imposed under this chapter, or pursuant to any authority granted under this 315 chapter, on food purchased for human consumption or essential personal hygiene products. 316 B. 1. As used in this section, "food purchased for human consumption" has the same meaning as 317 "food" defined in the Food Stamp Act of 1977, 7 U.S.C. § 2012, as amended. and federal regulations 318 adopted pursuant to that Act, except it shall not include seeds and plants which produce food for human 319 consumption. For the purpose of this section, "food purchased for human consumption" shall not include 320 food sold by any retail establishment where the gross receipts derived from the sale of food prepared by 321 such retail establishment for immediate consumption on or off the premises of the retail establishment 322 constitutes more than 80 percent of the total gross receipts of that retail establishment, including but not 323 limited to motor fuel purchases, regardless of whether such prepared food is consumed on the premises 324 of that retail establishment. For purposes of this section, "retail establishment" means each place of 325 business for which any "dealer," as defined in § 58.1-612, is required to apply for and receive a 326 certificate of registration pursuant to § 58.1-613. 327 2. As used in this section. "essential personal hygiene products" means (i) nondurable incontinence 328 products such as diapers, disposable undergarments, pads,. and bed sheets and (ii) menstrual cups and 329 pads. pantyliners, sanitary napkins. tampons, and other products used to absorb or contain menstrual 330 flow. "Essential personal hygiene products" does not include any item that is otherwise exempt pursuant 331 to this chapter. 332 §58.1-638. Disposition of state sales and use tax revenue. 333 A. The Comptroller shall designate a specific revenue code number for all the state sales and use tax 334 revenue collected under the preceding sections of this chapter. 335 The sales and use tax revenue generated by the one-half percent sales and use tax increase enacted 336 by the 1986 Special Session of the General Assembly shall be paid, in the manner hereinafter provided 337 in this section, to the Commonwealth Transportation Fund established pursuant to § 33.2-1524. The 338 Fund's share of such net revenue shall be computed as an estimate of the net revenue to be received into 339 the state treasury each month, and such estimated payment shall be adjusted for the actual net revenue 340 received in the preceding month. All payments shall be made to the Fund on the last day of each 341 month. 342 B. The sales and use tax revenue generated by a one percent sales and use tax shall be distributed 343 among the counties and cities of the Commonwealth in the manner provided in subsections C and D. 344 C. The localities' share of the net revenue distributable under this section among the counties and 345 cities shall be apportioned by the Comptroller and distributed among them by warrants of the 346 Comptroller drawn on the Treasurer of Virginia as soon as practicable after the close of each month 347 during which the net revenue was received into the state treasury. The distribution of the localities' share 348 of such net revenue shall be computed with respect to the net revenue received into the state treasury 349 during each month, and such distribution shall be made as soon as practicable after the close of each 350 such month. 351 D. The net revenue so distributable among the counties and cities shall be apportioned and 352 distributed upon the basis of the latest yearly estimate of the population of cities and counties ages five 353 to 19. provided by the Weldon Cooper Center for Public Service of the University of Virginia. Such 354 population estimate produced by the Weldon Cooper Center for Public Service of the University of 355 Virginia shall account for persons who are domiciled in orphanages or charitable institutions or who are 356 dependents living on any federal military or naval reservation or other federal property within the school 357 division in which the institutions or federal military or naval reservation or other federal property is 358 located. Such population estimate produced by the Weldon Cooper Center for Public Service of the 359 University of Virginia shall account for members of the military services who are under 20 years of age 360 within the school division in which the parents or guardians of such persons legally reside. Such 361 population estimate produced by the Weldon Cooper Center for Public Service of the University of 362 Virginia shall account for individuals receiving services in state hospitals. state training centers. or 363 mental health facilities, persons who are confined in state or federal correctional institutions. or persons 364 who attend the Virginia School for the Deaf and the Blind within the school division in which the 365 parents or guardians of such persons legally reside. Such population estimate produced by the Weldon 366 Cooper Center for Public Service of the University of Virginia shall account for persons who attend 7 of 10 367 institutions of higher education within the school division in which the student's parents or guardians 368 legally reside. To such estimate, the Department of Education shall add the population of students with 369 disabilities, ages two through four and 20 through 21, as provided to the Department of Education by H 370 school divisions. The revenue so apportionable and distributable is hereby appropriated to the several 371 counties and cities for maintenance, operation, capital outlays. debt and interest payments, or other „_ 372 expenses incurred in the operation of the public schools, which shall be considered as funds raised from 373 local resources. In any county, however, wherein is situated any incorporated town constituting a school 374 division, the county treasurer shall pay into the town treasury for maintenance, operation, capital outlays, 375 debt and interest payments, or other expenses incurred in the operation of the public schools, the proper rZ 376 proportionate amount received by him in the ratio that the school population of such town bears to the 377 school population of the entire county. If the school population of any city or of any town constituting a 378 school division is increased by the annexation of territory since the last estimate of school population 379 provided by the Weldon Cooper Center for Public Service. such increase shall, for the purposes of this 380 section, be added to the school population of such city or town as shown by the last such estimate and a 381 proper reduction made in the school population of the county or counties from which the annexed 382 territory was acquired. 383 E. Beginning July 1. 2000, of the remaining sales and use tax revenue, the revenue generated by a 384 two percent sales and use tax, up to an annual amount of S 13 million, collected from the sales of 385 hunting equipment, auxiliary hunting equipment, fishing equipment, auxiliary fishing equipment, 386 wildlife-watching equipment, and auxiliary wildlife-watching equipment in Virginia, as estimated by the 387 most recent U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of 388 Commerce, Bureau of the Census National Survey of Fishing. Hunting, and Wildlife-Associated 389 Recreation, shall be paid into the Game Protection Fund established under § 29.1-101 and shall be used, 390 in part. to defray the cost of law enforcement. Not later than 30 days after the close of each quarter, the 391 Comptroller shall transfer to the Game Protection Fund the appropriate amount of collections to be 392 dedicated to such Fund. At any time that the balance in the Capital Improvement Fund, established x 393 under § 29.1-101.01, is equal to or in excess of S35 million, any portion of sales and use tax revenues tt 394 that would have been transferred to the Game Protection Fund, established under § 29.1-101, in excess 395 of the net operating expenses of the Board, after deduction of other amounts which accrue to the Board 396 and are set aside for the Game Protection Fund, shall remain in the general fund until such time as the 397 balance in the Capital Improvement Fund is less than S35 million. 398 F. 1. Of the net revenue generated from the one-half percent increase in the rate of the state sales 399 and use tax effective August 1, 2004, pursuant to enactments of the 2004 Special Session I of the 400 General Assembly. the Comptroller shall transfer from the general fund of the state treasury to the 401 Public Education Standards of Quality/Local Real Estate Property Tax Relief Fund established under 402 § 58.1-638.1 an amount equivalent to one-half of the net revenue generated from such one-half percent 403 increase as provided in this subdivision. The transfers to the Public Education Standards of 404 Quality/Local Real Estate Property Tax Relief Fund under this subdivision shall be for one-half of the 405 net revenue generated (and collected in the succeeding month) from such one-half percent increase for 406 the month of August 2004 and for each month thereafter. 407 2. Beginning July 1, 2013, of the remaining sales and use tax revenue, an amount equal to the 408 revenue generated by a 0.125 percent sales and use tax shall be distributed to the Public Education 409 Standards of Quality/Local Real Estate Property Tax Relief Fund established under § 58.1-638.1. and be 410 used for the state's share of Standards of Quality basic aid payments. 411 3. For the purposes of the Comptroller making the required transfers under subdivision 1 and 2. the 412 Tax Commissioner shall make a written certification to the Comptroller no later than the twenty-fifth of 413 each month certifying the sales and use tax revenues generated in the preceding month. Within three 414 calendar days of receiving such certification. the Comptroller shall make the required transfers to the 415 Public Education Standards of QualityLocal Real Estate Property Tax Relief Fund. 416 G. (Contingent expiration date) Beginning July 1, 2020, of the remaining sales and use tax revenue, 417 an amount equal to 20 percent of the revenue generated by a one-half percent sales and use tax, such as 418 that paid to the Commonwealth Transportation Fund as provided in subsection A. shall be paid to the 419 Commonwealth Transportation Fund established pursuant to § 33.2-1524. 420 The Commonwealth Transportation Fund's share of the net revenue distributable under this subsection 421 shall be computed as an estimate of the net revenue to be received into the state treasury each month. 422 and such estimated payment shall be adjusted for the actual net revenue received in the preceding 423 month. All payments shall be made to the Fund on the last day of each month. 42-1 H. 1. Of the remaining sales tax revenue, there shall be distributed to each county and city a 425 supplemental school payment. The payment shall be distributed according to the procedures of 426 subsection C. 427 2. For purposes of this subsection: HB90 8 of 10 428 "Local sales tax index" means the ratio by which sales tax revenues in a county or city for the 429 current year exceed the previous year's revenues. If the calculated ratio is less than one, such ratio 430 shall be one. 431 "Supplemental school payment"means (i)for fiscal year 2023, the amount distributed to a county or 432 city pursuant to § 58.1-611.1 for fiscal year 2022 plus the amount distributed to the county or city 433 pursuant to §§ 58.1-605 and 58.1-606 for fiscal year 2022 attributable to taxes imposed on food 434 purchased for human consumption and essential personal hygiene products, as such terms are defined in 435 § 58.1-611.1 and (ii)for fiscal year 2024 and after, the previous year's supplemental school payment 436 multiplied by the local sales tax index of the county or city. 437 I. (Contingent expiration date) 1. The additional revenue generated by increases in the state sales 438 and use tax from Planning District 8 pursuant to §§ 58.1-603.1, 58.1-604.01, 58.1-604.1, and 58.1-614 439 shall be deposited by the Comptroller in the fund established under § 33.2-2509. 440 2. The additional revenue generated by increases in the state sales and use tax from Planning District 441 23 pursuant to §§ 58.1-603.1, 58.1-604.01, 58.1-604.1, and 58.1-614 shall be deposited by the 442 Comptroller in the fund established under § 33.2-2600. 443 3. (Contingent expiration date) The additional revenue generated by increases in the state sales and 444 use tax from Planning District 15 pursuant to §§ 58.1-603.1, 58.1-604.01, 58.1-604.1, and 58.1-614 shall 445 be deposited by the Comptroller in the fund established under §33.2-3701. 446 4. The additional revenue generated by increases in the state sales and use tax in any other Planning 447 District pursuant to §§ 58.1-603.1, 58.1-604.01, 58.1-604.1, and 58.1-614 shall be deposited into special 448 funds that shall be established by appropriate legislation. 449 5. The net revenues distributable under this subsection shall be computed as an estimate of the net 450 revenue to be received by the state treasury each month, and such estimated payment shall be adjusted 451 for the actual net revenue received in the preceding month. All payments shall be made to the 452 appropriate funds on the last day of each month. 453 I:J. (Contingent expiration date) The additional revenue generated by increases in the state sales and 454 use tax from the Historic Triangle pursuant to § 58.1-603.2 shall be deposited by the Comptroller as 455 follows: (i) 50 percent shall be deposited into the Historic Triangle Marketing Fund established pursuant 456 to subsection E of § 58.1-603.2; and (ii) 50 percent shall be deposited in the special fund created 457 pursuant to subdivision D 2 of § 58.1-603.2 and distributed to the localities in which the revenues were 458 collected. The net revenues distributable under this subsection shall be computed as an estimate of the 459 net revenues to be received by the state treasury each month, and such estimated payment shall be 460 adjusted for the actual net revenue received in the preceding month. All payments shall be made to the 461 appropriate funds on the last day of each month. 462 3: K. Beginning July 1, 2020, the first $40 million of sales and use taxes remitted by online retailers 463 with a physical nexus established pursuant to subsection D of § 58.1-612 shall be deposited into the 464 Major Headquarters Workforce Grant Fund established pursuant to § 59.1-284.31. 465 lK L. If errors are made in any distribution, or adjustments are otherwise necessary, the errors shall 466 be corrected and adjustments made in the distribution for the next quarter or for subsequent quarters. 467 L M The term "net revenue," as used in this section, means the gross revenue received into the 468 general fund or the Commonwealth Transportation Fund of the state treasury under the preceding 469 sections of this chapter, less refunds to taxpayers. 470 §58.1-2425. (Contingent expiration date) Disposition of revenues. 471 (Contingent expiration date) Funds collected hereunder by the Commissioner shall be forthwith paid 472 into the state treasury. Except as otherwise provided in this section, these funds shall constitute special 473 funds within the Commonwealth Transportation Fund. Any balances remaining in these funds at the end 474 of the year shall be available for use in subsequent years for the purposes set forth in this chapter, and 475 any interest income on such funds shall accrue to these funds. The revenue so derived, after refunds 476 have been deducted, is hereby allocated for the construction, reconstruction and maintenance of 477 highways and the regulation of traffic thereon and for no other purpose. However, (i) all funds collected 478 pursuant to the provisions of this chapter from manufactured homes, as defmed in § 46.2-100, shall be 479 distributed to the city, town, or county wherein such manufactured home is to be situated as a dwelling; 480 (ii) all funds collected pursuant to the provisions of this chapter from all-terrain vehicles, mopeds, and 481 off-road motorcycles, as those terms are defmed in § 46.2-100, shall be distributed as follows: (a) an 482 amount equal to a one percent tax shall be distributed in the same manner as the one percent local sales 483 tax pursuant to § 58.1-605, except that this amount collected on sales by anyone other than a Virginia 484 dealer or on sales outside of Virginia shall be distributed to the county or city in which the vehicle is 485 used or stored for use; (b) an amount equal to a 4.3 percent tax shall be distributed in the same manner 486 as the state sales and use tax pursuant to §§ 58.1-638 and 58.1-638.3, except that this amount collected 487 on sales by anyone other than a Virginia dealer or on sales outside of Virginia shall be distributed to the 488 county or city in which the vehicle is used or stored for use; (c) if the all-terrain vehicle, moped, or 489 off-road motorcycle was purchased from a Virginia dealer in a county or city in a planning district 9 of 10 490 described in § 58.1-603.1, an amount equal to a 0.7 percent tax shall be distributed pursuant to 491 § 58.1-603.1; (d) if the all-terrain vehicle. moped, or off-road motorcycle was purchased from anyone 492 other than a Virginia dealer or outside of Virginia and then used or stored for use in a county or city in 493 a planning district described in § 58.1-603.1. an amount equal to a 0.7 percent tax shall be distributed to 494 the county or city in which the vehicle is used or stored for use; and (e) an amount equal to a one __ 495 percent tax shall be distributed in a manner consistent with the provisions of subsection I J of 496 § 58.1-638 for each all-terrain vehicle, moped, and off-road motorcycle subject to the additional tax 497 within the Historic Triangle under subdivision A 1 of § 58.1-2402; and (iii) all remaining funds, after `'" 498 the collection costs of the Department of Motor Vehicles, from the sales and use tax on motor vehicles 499 shall be distributed to and paid into the Commonwealth Transportation Fund pursuant to § 33.2-1524. vir 500 (Contingent effective date) Funds collected hereunder by the Commissioner shall be forthwith paid 501 into the state treasury. Except as otherwise provided in this section, these funds shall constitute special 502 funds within the Commonwealth Transportation Fund. Any balances remaining in these funds at the end 503 of the year shall be available for use in subsequent years for the purposes set forth in this chapter. and 504 any interest income on such funds shall accrue to these funds. The revenue so derived, after refunds ( j 505 have been deducted, is hereby allocated for the construction, reconstruction and maintenance of 506 highways and the regulation of traffic thereon and for no other purpose. However, (i) all funds collected 0- 507 pursuant to the provisions of this chapter from manufactured homes. as defined in § 46.2-100, shall be 508 distributed to the city, town, or county wherein such manufactured home is to be situated as a dwelling; 509 (ii) all funds collected pursuant to the provisions of this chapter from all-terrain vehicles, mopeds, and 510 off-road motorcycles, as those terms are defined in § 46.2-100. shall be distributed as follows: (a) an 511 amount equal to a one percent tax shall be distributed in the same manner as the one percent local sales 512 tax pursuant to § 58.1-605, except that this amount collected on sales by anyone other than a Virginia 513 dealer or on sales outside of Virginia shall be distributed to the county or city in which the vehicle is 514 used or stored for use; (b) an amount equal to a 4.3 percent tax shall be distributed in the same manner 515 as the state sales and use tax pursuant to §§ 58.1-638 and 58.1-638.3, except that this amount collected 516 on sales by anyone other than a Virginia dealer or on sales outside of Virginia shall be distributed to the 517 county or city in which the vehicle is used or stored for use; (c) if the all-terrain vehicle. moped. or c) 518 off-road motorcycle was purchased from a Virginia dealer in a county or city in a planning district 519 described in § 58.1-603.1, an amount equal to a 0.7 percent tax shall be distributed pursuant to 520 § 58.1-603.1; and (d) if the all-terrain vehicle, moped, or off-road motorcycle was purchased from 521 anyone other than a Virginia dealer or outside of Virginia and then used or stored for use in a county or 522 city in a planning district described in § 58.1-603.1, an amount equal to a 0.7 percent tax shall be 523 distributed to the county or city in which the vehicle is used or stored for use; and (iii) all remaining 524 funds, after the collection costs of the Department of Motor Vehicles, from the sales and use tax on 525 motor vehicles shall be distributed to and paid into the Commonwealth Transportation Fund pursuant to 526 § 33.2-1524. 527 §58.1-2425. (Contingent effective date) Disposition of revenues. 528 (Contingent expiration date) Funds collected hereunder by the Commissioner shall be forthwith paid 529 into the state treasury. Except as otherwise provided in this section, these funds shall constitute special 530 funds within the Commonwealth Transportation Fund. Any balances remaining in these funds at the end 531 of the year shall be available for use in subsequent years for the purposes set forth in this chapter. and 532 any interest income on such funds shall accrue to these funds. The revenue so derived, after refunds 533 have been deducted, is hereby allocated for the construction, reconstruction and maintenance of 534 highways and the regulation of traffic thereon and for no other purpose. However. (i) all funds collected 535 pursuant to the provisions of this chapter from manufactured homes. as defined in § 46.2-100, shall be 536 distributed to the city, town, or county wherein such manufactured home is to be situated as a dwelling; 537 (ii) all funds collected pursuant to the provisions of this chapter from all-terrain vehicles, mopeds, and 538 off-road motorcycles. as those terms are defined in § 46.2-100, shall be distributed as follows: (a) an 539 amount equal to a one percent tax shall be distributed in the same manner as the one percent local sales 540 tax pursuant to § 58.1-605. except that this amount collected on sales by anyone other than a Virginia 541 dealer or on sales outside of Virginia shall be distributed to the county or city in which the vehicle is 542 used or stored for use; (b) an amount equal to a four percent tax shall be distributed in the same manner 543 as the state sales and use tax pursuant to § 58.1-638, except that this amount collected on sales by 544 anyone other than a Virginia dealer or on sales outside of Virginia shall be distributed to the county or 545 city in which the vehicle is used or stored for use: and (c) an amount equal to a one percent tax shall be 546 distributed in a manner consistent with the provisions of subsection I J of § 58.1-638 for each all-terrain 547 vehicle, moped, and off-road motorcycle subject to the additional tax within the Historic Triangle under 548 subdivision A 1 of § 58.1-2402; and (iii) all remaining funds. after the collection costs of the 549 Department of Motor Vehicles, from the sales and use tax on motor vehicles shall be distributed to and 550 paid into the Commonwealth Transportation Fund established pursuant to § 33.2-1524. HB90 10 of 10 551 (Contingent effective date) Funds collected hereunder by the Commissioner shall be forthwith paid 552 into the state treasury. Except as otherwise provided in this section, these funds shall constitute special 553 funds within the Commonwealth Transportation Fund. Any balances remaining in these funds at the end 554 of the year shall be available for use in subsequent years for the purposes set forth in this chapter, and 555 any interest income on such funds shall accrue to these funds. The revenue so derived, after refunds 556 have been deducted, is hereby allocated for the construction, reconstruction and maintenance of 557 highways and the regulation of traffic thereon and for no other purpose. However, (i) all funds collected 558 pursuant to the provisions of this chapter from manufactured homes, as defined in § 462-100, shall be 559 distributed to the city, town, or county wherein such manufactured home is to be situated as a dwelling: 560 (ii) all funds collected pursuant to the provisions of this chapter from all-terrain vehicles, mopeds, and 561 off-road motorcycles, as those terms are defined in § 46.2-100, shall be distributed as follows: (a) an 562 amount equal to a one percent tax shall be distributed in the same manner as the one percent local sales 563 tax pursuant to § 58.1-605, except that this amount collected on sales by anyone other than a Virginia 564 dealer or on sales outside of Virginia shall be distributed to the county or city in which the vehicle is 565 used or stored for use and (b) an amount equal to a four percent tax shall be distributed in the same 566 manner as the state sales and use tax pursuant to § 58.1-638, except that this amount collected on sales 567 by anyone other than a Virginia dealer or on sales outside of Virginia shall be distributed to the county 568 or city in which the vehicle is used or stored for use; and (iii) all remaining funds, after the collection 569 costs of the Department of Motor Vehicles, from the sales and use tax on motor vehicles shall be 570 distributed to and paid into the Commonwealth Transportation Fund established pursuant to § 571 33.2-1524. 2022 SESSION INTRODUCED 22101337D 1 HOUSE BILL NO.978 2 Offered January 12,2022 3 Prefiled January 12,2022 4 A BILL to amend and reenact 5C 58.1-816, as it is currently effective and as it may become effective, of —al the Code of Virginia, relating to distribution of recordation tax to cities and counties. 6 Patron—Durant 0 7 8 Committee Referral Pending '--" 9 10 Be it enacted by, the General Assembly of Virginia: 11 1. That § 58.1-816, as it is currently effective and as it may become effective, of the Code of 12 Virginia is amended and reenacted as follows: ei 13 §58.1-816. (Contingent expiration date) Distribution of recordation tax to cities and counties. 14 A. Effective October 1, 1993, S20 million of the taxes imposed under §§ 58.1-801 through 58.1-809 r"„ 15 that are actually paid into the state treasury, shall be distributed among the counties and cities of the 16 Commonwealth, except for counties and cities located in Planning District 8, in the manner provided in 17 subsection B. Effective July 1. 1994, such annual distribution shall increase to S40 million. Effective 18 July 1, 2020, such annual distribution shall be S20 million. 19 B. Subject to any transfer required under § 58.1-816.1, (i-} S-?A million of the share of the state taxes 20 distributable under this section shall be deposited annually into the fund established pursuant to 21 § 33.2 2600.1, and ( ) the remaining amount of state taxes distributable under this section among the 22 counties and cities shall be apportioned and distributed quarterly to each county or city; except for those 23 counties or cities located in a transportation district in Hampton Roads created pursuant to § 33.2 1903, x+ 24 by the Comptroller by multiplying the amount to be distributed by a fraction in which the numerator is o 25 the amount of the taxes imposed under §§ 58.1-801 through 58.1-809 and actually paid into the state o 26 treasury which are attributable to deeds and other instruments recorded in the county or city and the 27 denominator is the amount of taxes imposed under §§ 58.1-801 through 58.1-809 actually paid into the 28 state treasury. All distributions pursuant to clause (4i) this section shall be made on a quarterly basis 29 within 30 days of the end of the quarter. Such quarterly distribution shall equal one quarter of the 30 annual distribution amount set forth in subsection A available after the distribution required by clause 31 (0. Each clerk of the court shall certify to the Comptroller, within 15 days after the end of the quarter. 32 all amounts collected under §§ 58.1-801 through 58.1-809 and actually paid into the state treasury which 33 are attributable to deeds and other instruments recorded in such county or city. 34 C. All moneys distributed pursuant to Glause (4) of subsection shall be used in ac.cerdance with 35 § 33.2 2600.1. All moneys distributed to counties and cities pursuant to clause (ii4 of subsection B shall 36 be used for (i) transportation purposes. including, without limitation. construction, administration, Cl 37 operation, improvement, maintenance, and financing of transportation facilities, or (ii) public education. ri 38 As used in this section, the term "transportation facilities" shall include all transportation-related 39 facilities, including but not limited to all highway systems, public transportation or mass transit systems 40 as defined in § 33.2-100. airports as defined in § 5.1-1, and port facilities as defined in § 62.1-140. Such 41 term shall be liberally construed for purposes of this section. 42 D. If any revenues distributed to a county or city under clause (44 of subsection $ C are applied or 43 expended for any transportation facilities under the control and jurisdiction of any state agency, board, 44 commission, or authority, such transportation facilities shall be constructed, operated. administered, 45 improved. and maintained in accordance with laws, rules. regulations. policies, and procedures governing 46 such state agency, board, commission, or authority; however, in the event that these revenues, or a 47 portion thereof. are expended for improving or constructing highways in a county that is subject to the 48 provisions of§ 33.2-338, such expenditures shall be undertaken in the manner prescribed in that statute. 49 E. In the case of any distribution to a county or city in which an office sharing agreement pursuant 50 to §§ 15.2-1637 and 15.2-3822 is in effect, the Comptroller shall divide the distribution among the office 51 sharing counties and cities. Each clerk of the court acting pursuant to an office sharing agreement shall 52 certify to the Comptroller, within 15 days after the end of the quarter, all amounts collected under 53 §§ 58.1-801 through 58.1-809 and actually paid into the state treasury which are attributable to deeds 54 and other instruments recorded on behalf of each county and city. 55 §58.1-816. (Contingent effective date) Distribution of recordation tax to cities and counties. 56 A. Effective October 1, 1993. S20 million of the taxes imposed under §§ 58.1-801 through 58.1-809 57 that are actually paid into the state treasury. shall be distributed among the counties and cities of the 58 Commonwealth; except for counties and cities located in Plies District S: in the manner provided in HB978 2 of 2 59 subsection B. Effective July 1, 1994, such annual distribution shall increase to S40 million. Effective 60 July 1, 2020, such annual distribution shall be S20 million. 61 B. Subject to any transfer required under § 58.1-816.1, the share of the state taxes distributable under 62 this section among the counties and cities shall be apportioned and distributed quarterly to each county 63 or city by the Comptroller by multiplying the amount to be distributed by a fraction in which the 64 numerator is the amount of the taxes imposed under §§ 58.1-801 through 58.1-809 and actually paid 65 into the state treasury which are attributable to deeds and other instruments recorded in the county or 66 city and the denominator is the amount of taxes imposed under §§ 58.1-801 through 58.1-809 actually 67 paid into the state treasury. All distributions pursuant to this section shall be made on a quarterly basis 68 within 30 days of the end of the quarter. Such quarterly distribution shall equal 448 milliea one quarter 69 of the annual distribution amount set forth in subsection A. Each clerk of the court shall certify to the 70 Comptroller, within 15 days after the end of the quarter, all amounts collected under §§ 58.1-801 71 through 58.1-809 and actually paid into the state treasury which are attributable to deeds and other 72 instruments recorded in such county or city. 73 C. All moneys distributed to counties and cities pursuant to this section shall be used for (i) 74 transportation purposes, including, without limitation, construction. administration, operation, 75 improvement, maintenance and financing of transportation facilities, or (ii) public education. 76 As used in this section, the term "transportation facilities" shall include all transportation-related 77 facilities including, but not limited to, all highway systems, public transportation or mass transit systems 78 as defined in § 3 3.2-100, airports as defined in § 5.1-1, and port facilities as defined in § 62.1-140. Such 79 term shall be liberally construed for purposes of this section. 80 D. If any revenues distributed to a county or city under subsection C are applied or expended for any 81 transportation facilities under the control and jurisdiction of any state agency, board, commission or 82 authority, such transportation facilities shall be constructed, operated, administered, improved and 83 maintained in accordance with laws, rules. regulations, policies and procedures governing such state 84 agency, board, commission or authority; however, in the event these revenues, or a portion thereof, are 85 expended for improving or constructing highways in a county which is subject to the provisions of 86 § 33.2-338, such expenditures shall be undertaken in the manner prescribed in that statute. 87 E. In the case of any distribution to a county or city in which an office sharing agreement pursuant 88 to §§ 15.2-1637 and 15.2-3822 is in effect, the Comptroller shall divide the distribution among the office 89 sharing counties and cities. Each clerk of the court acting pursuant to an office sharing agreement shall 90 certify to the Comptroller, within 15 days after the end of the quarter, all amounts collected under 91 §§ 58.1-801 through 58.1-809 and actually paid into the state treasury which are attributable to deeds 92 and other instruments recorded on behalf of each county and city. 2022 SESSION INTRODUCED 22101881D 1 HOUSE BILL NO. 1031 I..I 2 Offered January 12,2022 3 Prefiled January 12,2022 4 A BILL to amend and reenact §§ 24.2-304.1 and 24.2-304.6 of the Code of Virginia, relating to IA 5 elections; local offices; reapportionment and redistricting; effect of certain changes. 6 Patron—Davis 0 7 8 Committee Referral Pending 9 10 Be it enacted by the General Assembly of Virginia: 11 1. That §§ 24.2-304.1 and 24.2-304.6 of the Code of Virginia are amended and reenacted as 12 follows: 13 § 24.2-304.1. At-large and district elections; reapportionment and redistricting of districts or 14 wards; limits. 15 A. Except as otherwise specifically limited by general law or special act, the governing body of each 16 county, city, or town may provide by ordinance for the election of its members on any of the following 17 bases: (i) at large from the county, city, or town; (ii) from single-member or multi-member districts or 18 wards, or any combination thereof; or (iii) from any combination of at-large, single-member, and 19 multi-member districts or wards. In any locality with an elected school board, passage of an ordinance 20 providing for the election of an additional member of the governing body on an at-large basis shall 21 require an equal increase in the membership of the local elected school board on an at-large basis. A 22 change in the basis for electing the members of the governing body shall not constitute a change in the 23 form of county government. 24 B. If the members are elected from districts or wards and other than entirely at large from the 25 locality, the districts or wards shall be composed of contiguous and compact territory and shall be so 0 26 constituted as to give, as nearly as is practicable, representation in proportion to the population of the '- 27 district or ward. In 1971 and every 10 years thereafter, the governing body of each such locality shall 28 reapportion the representation among the districts or wards, including, if the governing body deems it 29 appropriate, increasing or diminishing the number of such districts or wards, in order to give, as nearly 30 as is practicable, representation on the basis of population. 31 C. For the purposes of redistricting and reapportioning representation in 2021 and every 10 years 32 thereafter, the governing body of a county, city, or town shall use the most recent decennial population 33 figures for such county, city, or town from the United States Bureau of the Census, as adjusted by the 34 Division of Legislative Services pursuant to § 24.2-314. The census data for these redistricting and 35 apportionment purposes will not include any population figure that is not allocated to specific census 36 blocks within the Commonwealth, even though that population may have been included in the N 37 apportionment population figures of the Commonwealth for the purpose of allocating United States 38 House of Representatives seats among the states. 39 D. Notwithstanding any other provision of general law or special act, the governing body of a 40 county, city, or town shall not reapportion the representation in the governing body at any time other 41 than that required following the decennial census, except as (i) provided by law upon a change in the 42 boundaries of the county, city, or town that results in an increase or decrease in the population of the 43 county, city, or town of more than one percent, (ii) the result of a court order, (iii) the result of a 44 change in the form of government, or (iv) the result of an increase or decrease in the number of districts 45 or wards other than at-large districts or wards. The foregoing provisions notwithstanding, the governing 46 body subsequent to the decennial redistricting may adjust district or ward boundaries in order that the 47 boundaries might coincide with state legislative or congressional district boundaries; however, no 48 adjustment shall affect more than five percent of the population of a ward or district or 250 persons, 49 whichever is lesser. If districts created by a reapportionment enacted subsequent to a decennial 50 reapportionment are invalid under the provisions of this subsection, the immediately preexisting districts 51 shall remain in force and effect until validly reapportioned in accordance with law. 52 § 24.2-304.6. Effect of reapportionment on appointments and terms of local officers, school 53 board and planning commission members. 54 County, city, or town officers, including members of the school board or planning commission, in 55 office on the effective date of a reapportionment or redistricting ordinance or court-ordered redistricting 56 plan, shall complete their terms of office, regardless of loss of residency in a particular district due to 57 reapportionment or redistricting. 4 CITY MANAGER'S BRIEFINGS SALE OF 205 4t"STREET&ATLANTIC AVENUE ITEM#72416 2:21 P.M. Mayor Dyer welcomed Taylor V.Adams, Deputy City Manager. Mr. Adams expressed his appreciation to City Council for their continued support: 111.111111111111111111111 4th Street City Property Sale Taylor Adams,Deputy City Manager V13 City Council Briefing,January 18,2022 Here are the Disclosures: Disclosures Owners: Michael J. Standing, Jr. and Mariah Standing Legal: Eddie Bourdon Accounting: Goodman & Co. Financing: TowneBank A&E: Hanbury, Stephen I. Boone & Assoc. Economic Development I January 18.2022 1 4th Street City Property Sale 2 January 18, 2022 5 CITY MANAGER'S BRIEFINGS SALE OF 205 4``'STREET&ATLANTIC AVENUE ITEM#72416 (Continued) 'Is. w4. l- Rt ♦� �M t r.w rww .4..... ik ✓ A.,,,,t w - �. oV. -.2.,": i I� ,�{,y, otais w 1 1 Or yr. -L t , k 1 Economic Development I January 18.2022 14th Street City Property Sale Here is the Background: Background • A letter was received on November 18, 2020 on behalf of Mike Standing, Jr. for purchase of City-owned properties at 400 Atlantic Avenue and 205 4th Street. • Mr. Standing currently leases these two parcels from the City for valet parking for his restaurant. • Mr. Standing also owns 213 5' Street and operates it as valet parking lot for his restaurant. • Mr. Standing intends to develop a residential project at 213 5th Street, but needs a long-term parking solution for valet and overflow parking. Economic Development I January 18.2022 14th Street City Property Sete 4 Ammi January 18, 2022 6 CITY MANAGER'S BRIEFINGS SALE OF 205 4`"STREET&ATLANTIC AVENUE ITEM#72416 (Continued) 205 4th ST & 400 Atlantic Avenue V:' : , _ . r - -..I:.;: 1 I*, _ '±� eic�:•' f , - a`- „, 13 J -41--"-* . ,,-,, - -..' - 4 1 ' - ---- - 9- —\-: _ • < -a—,• - Ecc e:e _a - -.'.Street City Prcre�,Sale 5 Here is Mr. Standing's Proposal: Mr. Standing's Proposal • Offer to purchase property for $1 .7 M • Note: May 2020 Appraisal - $1.83 M • Mr. Standing would continue to operate Waterman's valet parking operation and provide partial off-site parking for 5th Street residential development at 400 Atlantic Ave. Economic Development I January 18,2022 14th Street City Property Sale 6 January 18, 2022 7 CITY MANAGER'S BRIEFINGS SALE OF 205 4`h STREET&ATLANTIC AVENUE ITEM#72416 (Continued) EXISTING CONDITIONS 213 5TH STREET 23.2021 Development Site ZONED LOT AREA MOOSE/0.55 AErEs SETNEERS Tr Hoes brW HEIGHT EAU 75-Pod,.•IV Taw, PAM.REO U M.H/411,1nE i ASSESSED VALUE Sx,E44,100 INNOMENNIMMI g i OOD ZONE R 0.21f AREE,wfTSMEE TN SF Rp I 0 IS. J.. b0• G BIRDS EYE VIEW NE _ F �,1_ -L. 4111K '� j ,r - itr i • - y fi'. ® e ..0 - - V lk - II:joq 1 , _. • 7 Economic Development I January 18.2022 1 4th Street City Property Sale'11----'. --,---------'------f-M,. Igi...,--„;::"- ...;,v-,-,. cr. ,,f ' ..) Here is Option 1: MID-RISE MULTIFAMILY BIROS EYE VIEK NE (`t CONCEPTUAL MASSING _`�'' - �` ���� MODELS �t e �eya � �' J 213 5TH STREET !rye_ ; ..._i . :--"eta " ; �*/1"^ ... Option 1 r — -:( 1. f�-� HIE .,, hostio, iii Y .. 'tip i 4, _ ,,_. Economic Development I January 18.2022 14th Street City Property Sate - 8 January 18, 2022 8 CITY MANAGER'S BRIEFINGS SALE OF 205 461 STREET&ATLANTIC AVENUE ITEM#72416 (Continued) Here is Option 2: HI-RISE MULTIFAMILY BIRDS FYE VIEW NI CONCEPTUAL MASSING - r �_ MODELS • . . ,� 213 5TH STREET -AV • 4 `a. e' . 1 f Option 2 �'�, ���.���\� ,��,' ••.... t:P-401 --:_' ., • is 'R , BIRDS EYE l•�4W NW h • -• '.-4 NNL: i i r. tISW i May: t.•J q Economic Development I January 18.202214th Street City Property Sale u_ For Consideration • Sell 4th Street parcels for the appraised value of $1.83M to Mr. Standing as part of the overall residential redevelopment opportunity for the 5th Street Site. Economic Development I January 18.2022 14'Street City Property Sete 10 Mayor Dyer expressed his appreciation to Mr.Adams for the presentation. January 18, 2022 9 CITY MANAGER'S BRIEFINGS STORMWATER REGULATORY UPDATE ITEM#72417 2:29 P.M. This briefing has been postponed. January 18, 2022 10 CITY COUNCIL DISCUSSION/INITIATIVES ITEM#72418 2:30 P.M. Council Member Berlucchi advised he has heard from concerned citizens regarding the hostage incident at the Congregation Beth Israel synagogue in Colleyville, Texas and asked everyone to remain vigilant in protecting all members of the community. Council Member Berlucchi advised he spoke with Chief Neudigate and will provide additional patrols in faith group communities. January 18, 2022 11 CITY COUNCIL DISCUSSION/INITIATIVES ITEM#72419 (Continued) Council Member Moss referenced the City's redistricting process and asked when the City will officially transition to the new districts? Council Member Moss advised he was elected to serve as an At Large Council Member and expressed concern of having Council Member's named to the new districts until the election takes place. Mayor Dyer advised City Council will need to transition and would like to discuss the best methods to go forward during the next City Council Retreat. January 18, 2022 12 CITY COUNCIL DISCUSSION/INITIATIVES ITEM#72419 (Continued) Council Member Moss advised there is not a unified training program for the Police and Sheriff Departments and believes if there was one program for both, it would allow for more academies to be held. Council Member Moss expressed his hope to have the associated costs considered in the budget cycle, adding Governor Youngkin is putting aside$26-Million for communities who increase funding for their police departments. January 18, 2022 13 CITY COUNCIL DISCUSSION/INITIATIVES ITEM#72420 (Continued) Council Member Wooten advised January is Human Trafficking Awareness Month and on January 15th, Governor Youngkin signed Executive Order#7 which promises to combat and prevent human trafficking and provide support to survivors. Council Member Wooten expressed the importance of remaining vigilant and understand the impact human trafficking has on the region. January 18, 2022 14 CITY COUNCIL DISCUSSION/INITIATIVES ITEM#72421 (Continued) Council Member Wooten advised January 19`h is Mental Health Advocacy Day in Richmond. Council Member Wooten advised a virtual seminar will be held from 9:00 A.M. —12:00 P.M, with legislators who will discuss mental health priorities. January 18, 2022 '5 CITY COUNCIL DISCUSSION/INITIATIVES ITEM#72422 (Continued) Council Member Rouse advised recently the Police Department was in the national news concerning controversial police interrogation techniques and strategies used. Council Member Rouse commended Chief Neudigate on changing policies that no longer allow those techniques and strategies to be used. Council Member Rouse asked City Manager Duhaney to provide more clarity. City Manager Duhaney expressed his appreciation for proactive policing and to Chief Neudigate for discontinuing the use of replica documents during interrogations. City Manager Duhaney advised after speaking to the City Attorney, there was nothing illegal with the practice but agreed with Chief Neudigate that the technique should not be used. City Manager Duhaney advised Chief Neudigate cooperated with the Office of Civil Rights who initiated an investigation after Chief Neudigate discontinued the use of the technique. January 18, 2022 16 AGENDA REVIEW SESSION ITEM#72423 2:42 P.M. BY CONSENSUS, the following shall compose the Legislative CONSENT AGENDA: J. ORDINANCES/RESOLUTION 1. Ordinances to AMEND: a. Section 1.3 and 1-30 of the Stormwater Management Ordinance (Appendix D)re Stormwater Appeals Board b. Section 1.2 of the Public Works Design Standards Manual re variances (Deferred from November 9, 2021) 2. Resolution to DIRECT the City Attorney to file a Petition for a Writ of Special Election re Office of Council Member in District 1 (Formerly District 2—Kempsville) 3. Resolution to DIRECT the City Attorney to END the Appeal in the Holloway, et al. v. City of Virginia Beach, et al. litigation (Requested by Council Member Rouse) 4. Ordinance to TRANSFER$60,000 from the General Fund City Council Emergent Needs Reserve to the FY 2021-22 Communications Office Operating Budget for Public Outreach re the City's election system and new districts(Requested by Council Member Rouse) 5. Resolution to AUTHORIZE and DIRECT the City Manager to EXECUTE a Project Participation Agreement between the City of Virginia Beach and the Southside Network Authority 6. Ordinances to ACCEPT and APPROPRIATE: a. $300,000 from the Landmark Foundation to the FY 2021-22 Public Health Operating Budget and AUTHORIZE grant-supported positions re Baby Care Program b. $547,358 from the Virginia Department of Justice to the FY 2021-22 Commonwealth Attorney's Operating Budget and AUTHORIZE 25%in-kind Grant Match by the Commonwealth Attorney's and one(1)grant funded full- time position in Human Services re drug treatment court J. ORDINANCES/RESOLUTIONS: ITEM la/b WILL BE CONSIDERED FOR DEFERRAL TO FEBRUARY 1,2022 ITEM#3 WILL BE CONSIDERED SEPARATELY ITEM#4 WILL BE CONSIDERED SEPARA TEL Y January 18, 2022 17 AGENDA REVIEW SESSION ITEM#72423 (Continued) BY CONSENSUS, the following shall compose the Planning CONSENT AGENDA: K. PLANNING 1. HUNT CLUB CONDOMINIUM ASSOCIATION, INC. for a Modification of Conditions re increase the number of multi family dwellings by eleven (11) at 120 Loflin Way DISTRICT 1 (Formerly District 2—Kempsville) 2. PRINCESS ANNE VILLAGE, LLC/SUSAN KELLAM, DAVID E. KELLAM REVOCABLE TRUST, KELLAM& EA TON, INC., SISTERS II, LLC, CHARLES F. B URRO UGHS HI& CITY OF VIRGINIA BEACH for a Conditional Change ofZoningfrom B-2 Community Business, AG-1 & AG-2 Agricultural Districts to Conditional PD-H2 Planned Unit Development (R-10 Residential District) & Conditional B-2 Community Business Districts) re development of 73 residential lots with up to 89 dwellings and one commercial parcel at 2369, 2373, 2375, 2381, 2385 Princess Anne Road, 2393, 2401, 2413 North Landing Road&parcel between 2393 North Landing Road, 2385 Princess Anne Road DISTRICT 2 (Formerly District 7—Princess Anne) 3. JAMES D. WHITE REVOCABLE LIVING TRUST for a Conditional Use Permit re short term rental at 40718`h Street, Unit A DISTRICT 6(Formerly District 6—Beach) APPLICANT REQUEST DEFERRAL TO FEBRUARY 15,2022 4. 2508 PACIFIC AVENUE,LLC for a Conditional Use Permit re short term rentals at 2510, 2514, 2518, 2522, 2526& 2530 Pacific Avenue DISTRICT 6(Formerly District 6—Beach) 5. ORP VENTURES, LLC for a Conditional Use Permit re short term rental at 603 206 Street DISTRICT 6(Formerly District 6—Beach) 6. ORP VENTURES,LLC for a Conditional Use Permit re short term rentals at: 410196 Street 41219`h Street a. Unit 101 a. Unit 101 b. Unit 102 b. Unit 102 c. Unit 103 c. Unit 201 d. Unit 201 d. Unit 202 e. Unit 202 DISTRICT 6(Formerly District 6—Beach) K.PLANNING: COUNCIL MEMBER MOSS WILL VOTE VERBAL NAY FOR ITEM#1 ITEM#2 WILL BE CONSIDERED SEPARA TEL Y ITEM#3 WILL BE CONSIDERED SEPARA TEL Y January 18, 2022 18 ITEM#72424 Mayor Robert M. Dyer entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.2-3711(A), Code of Virginia, as amended,for the following purpose: LEGAL MATTERS: Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; or consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel pursuant to Section 2.2-3711(A)(7). • Holloway et al v. City of Virginia Beach PUBLICLY-HELD PROPERTY: Discussion or consideration of the, acquisition of real property for public purpose; or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711(A)(3). • District 2—(Formerly Princess Anne District) • District 2—(Formerly Princess Anne District) • District 2—(Formerly Princess Anne District) • District 6—(Formerly Beach District) PERSONNEL MATTERS:Discussion, consideration of or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711(A)(1) • Council Appointments: Council, Boards, Commissions, Committees, Authorities, Agencies, Task Forces and Appointees • Appointee Evaluations January 18, 2022 19 ITEM#72424 (Continued) Upon motion by Council Member Moss, seconded by Council Member Tower, City Council voted to proceed into CLOSED SESSION at 2:53 P.M. Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N. D. "Rocky"Holcomb, Louis R. Jones, John D. Moss, Aaron R. Rouse, Guy K. Tower and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson Closed Session 2:53 P.M. — 5:55 P.M. January 18, 2022 20 FORMAL SESSION VIRGINIA BEACH CITY COUNCIL JANUARY 18,2022 6:00 P.M. Mayor Dyer called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the City Council Chamber, City Hall, on Tuesday,January 18, 2022, at 6:00 P.M. Council Members Present: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N. D. "Rocky"Holcomb, Louis R. Jones, John D. Moss,Aaron R. Rouse, Guy K. Tower and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson—Ill INVOCATION: Council Member Jones PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Rosemary Wilson DISCLOSED that she is a real estate agent affiliated with Howard Hanna Real Estate Services ("Howard Hanna'), who's Oceanfront Office is located at 303 34th Street Suite 102, Virginia Beach, VA 23451. Because of the nature of realtor and real estate agent affiliation, the size of Howard Hanna, and the volume of transactions it handles in any given year,Howard Hanna has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act (the "Act'), it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review of the agenda for any given meeting of the Council,she identifies a matter in which she has a `personal interest," as defined in the Act, she will file the appropriate disclosure letter to be recorded in the official records of the City Council. Council Member Wilson regularly makes this disclosure. Her letter of February 20, 2018 is hereby made part of the record. January 18, 2022 21 Vice Mayor Rosemary Wilson also DISCLOSED she has a personal interest in Dixon Hughes Goodman and receives income from the firm as a result of her late husband's employment. The income is proceeds from the sale of his partnership interest,paid out over an extended period of time. She is not an employee of Dixon Hughes Goodman, does not have any role in management of the company and does is not privy to its client list. However, due to the size of Dixon Hughes Goodman and the volume of transactions it handles in any given year, Dixon Hughes Goodman may have an interest in matters of which she has no personal knowledge. In that regard, she is always concerned about the appearance of impropriety that might arise if she unknowingly participates in a matter before City Council in which Dixon Hughes Goodman has an interest.In order to ensure her compliance with both the letter and spirit of the State and Local Government Conflict of Interests Act (the "Act'), it is her practice to thoroughly review each City Council agenda to identify any matters in which she might have an actual or potential conflict. If, during her review of an agenda, she identifies a matter in which she has a `personal interest", as defined by the Act, she will either abstain from voting, or file the appropriate disclosure letter with the City Clerk to be included in the official records of City Council. Council Member Wilson's letter of June 2, 2015 is hereby made a part of the record. January 18, 2022 22 ITEM— V.E CERTIFICATION ITEM#72425 Upon motion by Council Member Moss, seconded by Council Member Wooten, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 NI•BFAc r0f_., c EfA'.:. se OF OUR N�(104S RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION,pursuant to the affirmative vote recorded in ITEM#72424 on Page 19 and in accordance with the provisions of The Virginia Freedom of Information Act;and, WHEREAS:Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW, THEREFORE,BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a)only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. Aman a a es, C City Clerk January 18, 2022 23 ITEM— V.F MINUTES ITEM#72426 Upon motion by Council Member Moss, seconded by Council Member Wooten, City Council APPROVED the MINUTES of the INFORMAL and FORMAL SESSIONS of January 4, 2022. Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 24 ITEM— V.G MAYOR'S PRESENTATION ITEM#72427 Mayor Dyer welcomed Tiffany Russell, Interim Director— Communications. Ms. Russell expressed her appreciation to City Council for their continued support. Ms. Russell advised as the City approaches its 60`h Anniversary in 2023, recognition to highlight people,places and events that have shaped the City will be celebrated monthly this year as part of the Nostalgic Virginia Beach Campaign. Ms. Russell played a short video of the City's highlights between 1963-1968 and turned the presentation over to Mayor Dyer to present citizen awards. 60`h ANNIVERSARY AWARDS Mayor Dyer welcomed Ambler Hatchett, grandson of Russell Hatchett, and read the Proclamation recognizing Russell Hatchett as they City's first City Manager from 1955 to 1967 and recipient of the, "Virginia Beach Diamond Award". Mayor Dyer called upon the citizens and members within government agencies,public and private institutions, business and schools in Virginia Beach to be of service for the benefit and betterment of the community so that future generations can appreciate and further uplift our beloved City of Virginia Beach. Mr.Ambler Hatchett expressed his appreciation to City Council for this recognition. Mayor Dyer welcomed Alice Pace Wilson, daughter of Detective Charles Pace, and read the Proclamation recognizing Detective Pace as the City s firstAfrican American Policeman of the Year in 1967 and recipient of the, "Virginia Beach Diamond Award". Mayor Dyer called upon the citizens and members within government agencies, public and private institutions, business and schools in Virginia Beach to be of service for the benefit and betterment of the community so that future generations can appreciate and further uplift our beloved City of Virginia Beach. Ms. Pace expressed her appreciation to City Council for this recognition. January 18, 2022 25 ITEM— V.H.1 PUBLIC HEARING ITEM#72428 Mayor Dyer DECLARED a PUBLIC HEARING: AMENDMENTS TO THE VIRGINIA BEACH PUBLIC SCHOOLS FY 2021-22 OPERATING BUDGET AND CAPITAL IMPROVEMENT PROGRAM Appropriate$54,938,822 in FY 2020-21 School Operating Reversion Funding and Establish Capital Projects#1-030:Replacement Payroll System and#1-031: School Bus&Fleet Replacement The following registered to speak: Barbara Messner, P. O. Box 514, spoke in OPPOSITION Dianna Howard, 1057 Debaca Court, Phone: 567-9021, spoke in OPPOSITION Sara Gerloff, 1332 Starling Court, Phone: 567-2906, spoke in OPPOSITION The following registered speakers spoke in SUPPORT of a Collective Bargaining Agreement for City employees: Terry Green, 3500 Dam Neck Road Pat Thebert, 3512 Stancil Street Red McClenny, 936 Aragona Boulevard Devon Conley, 2112 Eagle Rock Road Teresa Stanley, 143 Castilian Drive Hannah Borja, 824 Benjamin Place James Allen, 395 Old Great Neck Road, Phone: 449-8322 Gary McCollum, 3901 Meeting House Road, Phone: 708-9587 LaTasha Holloway, 826 Tuition Court, Phone: 348-0456 Blaizen Bloom, 308 Albert Avenue, Chesapeake, Phone: 839-7070 Andrew Jackson, 153 Upperville Road, Phone: 490-0901 Tim McCarthy, 3845 Prince Phillip Circle, Phone: 581-6938 There being no additional speakers,Mayor Dyer CLOSED the PUBLIC HEARING January 18, 2022 26 ITEM— V.I.1 FORMAL SESSION AGENDA ITEM#72429 Mayor Dyer read the Speaker Policy and advised for items where only one(1)speaker is registered, the City Clerk will call the speaker and they will be given three(3) minutes on each item they registered to speak. The City Clerk called the following speaker: Barbara Messner,P. O.Box 514,spoke in OPPOSITION on Ordinances/Resolutions J: 1 a/b, 2, 5, and 6a/b and Planning Items K: 1, 4, 5 and 6a/b/c/d/e Upon motion by Council Member Jones, seconded by Council Member Moss, City Council APPROVED, BY CONSENT, Agenda Items J: la/b (DEFERRED TO FEBRUARY 1, 2022) 2, 5 and 6a/b and Planning Items K:1, 4, 5 and 6a/b/c/d/e Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M.Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson J. ORDINANCES/RESOLUTIONS: ITEM#3 WILL BE CONSIDERED SEPARA TEL Y ITEM#4 WILL BE CONSIDERED SEPARA TEL Y K.PLANNING: COUNCIL MEMBER MOSS WILL VOTE VERBAL NAY FOR ITEM#1 ITEM#2 WILL BE CONSIDERED SEPARA TEL Y ITEM#3 WILL BE CONSIDERED SEPARA TEL Y January 18, 2022 27 ITEM— V.J.la ORDINANCES/RESOLUTIONS ITEM#72430 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council DEFERRED TO FEBRUARY 1, 2022, Ordinance to AMEND: a. Section 1.3 and 1-30 of the Stormwater Management Ordinance (Appendix D) re Stormwater Appeals Board (Deferred from November 9, 2021) Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M.Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 28 ITEM— V.J.lb ORDINANCES/RESOLUTIONS ITEM#72431 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council DEFERRED TO FEBRUARY 1, 2022, Ordinance to AMEND: b. Section 1.2 of the Public Works Design Standards Manual re variances(Deferred from November 9, 2021) Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 29 ITEM— V.J.2 ORDINANCES/RESOLUTIONS ITEM#72432 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council ADOPTED, BY CONSENT, Resolution to DIRECT the City Attorney to file a Petition for a Writ of Special Election re Office of Council Member in District 1 (Formerly District 2—Kempsville) Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 1 A RESOLUTION TO DIRECT THE CITY ATTORNEY TO 2 FILE A PETITION FOR A WRIT OF SPECIAL ELECTION 3 FOR THE OFFICE OF COUNCILMEMBER, DISTRICT 1 4 5 WHEREAS, Councilmember Jessica Abbott, Kempsville District, was elected for 6 a term that ends December 31, 2024. She resigned her office effective July 2, 2021, 7 and this created a vacancy in the Kempsville District; 8 9 WHEREAS, Virginia law requires a local governing body to promptly petition the 10 circuit court to order a special election to fill a vacancy. In the interim period, the City 11 Council may make an appointment, and such person holds the office until the qualified 12 voters fill the vacancy by special election. The federal court enjoined the City from 13 holding a special election in November 2021 to fill the Kempsville vacancy; 14 15 WHEREAS, the federal court for the Eastern District of Virginia issued its final 16 order (the "Final Order") on December 22, 2021 in the matter of Holloway, et al. v. City 17 of Virginia Beach, et al. This order requires the implementation of a remedial plan (the 18 "Remedial Plan") recommended to the Court by a special master; 19 20 WHEREAS, the Remedial Plan redraws the City's former residence districts into 21 ten single member districts or wards. The seat formerly held by Councilmember 22 Jessica Abbott has been redrawn as District 1 . The City has appealed the Final Order 233 but intends to comply pending the outcome of the appeal; 25 WHEREAS, Virginia law requires vacancies in local governing bodies to be filled 26 by special election unless the election to fill the vacancy would be held in the same year 27 in which the term expires. The term of the seat formerly held by Councilmember 28 Jessica Abbott ends December 31, 2024, so Virginia law requires a special election to 29 be held to fill the remaining term. Additionally, the Remedial Plan provides for District 1 30 to be subject to a special election in 2022 for a term ending December 31 , 2024. 31 32 WHEREAS, the next general election is November 8, 2022. 33 34 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 35 VIRGINIA BEACH, VIRGINIA: 36 37 That the City Council directs the City Attorney to file a Petition for a Writ of 38 Special Election in the Circuit Court for the purpose of filling the remaining term of the 39 Office of Councilmember, District 1, such term ending December 31, 2024, and 40 requests such special election to be held on November 8, 2022. Adopted by the City Council of the City of Virginia Beach, Virginia, this 18th day Of January , 2022. /-PPR VED AS TO LEGAL SUFFICIENCY: Cit or ey's Office CA15671/R-1/January 5, 2022 30 ITEM— V J.3 ORDINANCES/RESOLUTIONS ITEM#72433 The following registered to speak: Barbara Messner, P. O. Box 514, spoke in OPPOSITION Melissa Lukeson, 1884 Wolfsnare Road, Phone: 289-9003, spoke in SUPPORT Andrew Jackson, 153 Upperville Road, Phone: 490-0901, spoke in SUPPORT Gary McCollum, 3901 Meeting House Road, Phone: 708-5987, spoke in SUPPORT Carl Wright, 1144 Mondrian Loop, Phone: 235-5596, spoke in SUPPORT After City Council discussion, Council Member Rouse made a motion, seconded by Council Member Wooten to ADOPT Resolution to DIRECT the City Attorney to END the Appeal in the Holloway, et al. v. City of Virginia Beach, et al. litigation (Requested by Council Member Rouse) Council Member Moss then made a SUBSTITUTE MOTION, seconded by Council Member Branch, to CONTINUE the Appeal in the Holloway, et al. v. City of Virginia Beach, et al. litigation Voting: 6-4 Council Members Voting Aye: Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N. D. "Rocky"Holcomb, Louis R.Jones and John D.Moss Council Members Voting Nay: Michael F.Berlucchi,Aaron R.Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 31 ITEM— V.J.3 ORDINANCES/RESOLUTIONS ITEM#72433 (Continued) Upon motion by Council Member Moss, seconded by Council Member Branch, City Council ADOPTED the SUBSTITUTE MOTION to DIRECT the City Attorney to CONTINUE the Appeal in the Holloway, et al. v. City of Virginia Beach, et al. litigation Voting: 6-4 Council Members Voting Aye: Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N. D. "Rocky"Holcomb, Louis R.Jones and John D. Moss Council Members Voting Nay: Michael F.Berlucchi,Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent. Vice Mayor Rosemary Wilson *Council Member Moss requested the Appellants' Amended Opening Brief be added to the Minutes, attached hereto and made a part of the record. January 18, 2022 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 1 of 65 Nos. 21-1533, 21-2431 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Latasha Holloway, et al., Plaintiffs-Appellees, V. City of Virginia Beach, et al., Defendants Appellants. On Appeal from the United States District Court for the Eastern District of Virginia Case No. 2:18-cv-00069 The Honorable Raymond A. Jackson Appellants' Amended Opening Brief Mark D. Stiles Katherine L. McKnight Virginia Beach City Attorney Richard B. Raile Christopher S. Boynton BAKER&HOSTETLER LLP Deputy City Attorney 1050 Connecticut Ave., N.W., Gerald L. Harris Suite 1100 Senior City Attorney Washington, D.C. 20036 Joseph M. Kurt T: (202) 861-1618 Assistant City Attorney F: (202) 861-1783 OFFICE OF THE CITY ATTORNEY kmcknight@bakerlaw.com Municipal Center, Building One, Room 260 Patrick T. Lewis 2401 Courthouse Drive BAKER&HOSTETLER LLP Virginia Beach, Virginia 23456 Key Tower, 127 Public Square Suite 2000 Erika Dackin Prouty Cleveland, OH 44114 BAKER&HOSTETLER LLP 200 Civic Center Drive Suite 1200 Columbus, OH 43215 Counsel for Defendants Appellants USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 2 of 65 CORPORATE DISCLOSURE STATEMENT Defendants-Appellants are the City of Virginia Beach; the Virginia Beach City Council; Donna Patterson, in her official capacity as General Registrar of the City of Virginia Beach; Robert Dyer, in his official capacity as the Mayor of Virginia Beach; Rosemary Wilson, in her official capacity as Vice Mayor of Virginia Beach; Patrick Duhaney, in his official capacity as City Manager of Virginia Beach; and Rocky Holcomb, Michael Berlucchi, Barbara Henley, Louis Jones, John Moss, Aaron Rouse, Guy Tower, Linwood Branch, and Sabrina Wooten, in their official capacities as members of the Virginia Beach City Council. None of the Defendants-Appellants are a publicly held corporation or other publicly held entity, and no publicly owned parent corporation owns any stock in any of the Defendants—Appellants. There is no publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation. Defendants-Appellants are not trade associations. This case does not arise out of a bankruptcy proceeding. USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 3 of 65 TABLE OF CONTENTS Preliminary Statement 1 Statement of Jurisdiction 3 Statement of Issues 3 Statement of the Case 4 A. Factual Background 4 B. Procedural History 7 Summary of the Argument 12 Standard of Review 15 Argument 16 I. The District Court Erred in Reaching the Merits 16 A. The Case Is Moot 16 B. Plaintiffs Lack Third-Party Standing To Assert the Rights of All Virginia Beach "Minority" Residents 19 II. Plaintiffs' Section 2 Claim Fails on the Merits 21 A. The District Court Erred on the First Gingles Precondition 22 1. Plaintiffs Did Not Plead or Prove a Single-Race Claim 22 2. Plaintiffs' Coalitional Claim Is Not Cognizable 23 B. The District Court Erred on the Second Gingles Precondition 31 1. The District Court Erroneously Applied a Relaxed Cohesion Standard 31 a. Plaintiffs' Liability-Stage Failure 33 b. The District Court's Liability Opinion Makes Mathematically Impossible Assumptions 36 c. The Remedial Record Undermines the Liability Ruling 42 2. Qualitative Evidence Disproved Cohesion 44 ii USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 4 of 65 C. The District Court Erred on the Third Gingles Precondition 47 D. Plaintiffs' Claim Fails Under the Totality of the Circumstances 49 III. The District Court's Obey-the-Law Injunction Is Improper and Unenforceable 51 Conclusion 53 Request for Oral Argument 53 iii USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 5 of 65 TABLE OF AUTHORITIES Cases 11126 Baltimore Blvd. v. Prince George's Cnty., 924 F.2d 557 (4th Cir. 1991) 16 Abbott v. Perez, 138 S. Ct. 2305 (2018) 36 Alabama NAACP v. Alabama, 2020 WL 583803 (M.D. Ala. Feb. 5, 2020) 41 Am. Bar Ass'n v. FTC, 636 F.3d 641 (D.C. Cir. 2011) 17 Anita's New Mexico Style Mexican Food, Inc. v. Anita's Mexican Foods Corp., 201 F.3d 314 (4th Cir. 2000) 15 Badillo v. City of Stockton, 956 F.2d 884 (9th Cir. 1992) 30, 32 Bartlett v. Strickland, 556 U.S. 1 (2009) passim Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) 26 Brewer v. Ham, 876 F.2d 448 (5th Cir. 1989) 32, 44, 46 Bridgeport Coal. For Fair Representation v. City of Bridgeport, 26 F.3d 271 (2d Cir. 1994) 30 Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir.1999) 52 Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988) 30, 32 Campos v. City of Baytown, 849 F.2d 943 (5th Cir. 1988) 23, 26, 27 Cane v. Worcester Cnty., 35 F.3d 921 (4th Cir. 1994) 49 iv USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 6 of 65 Checker Cab Operators, Inc. v. Miami-Dade Cnty., 899 F.3d 908 (11th Cir. 2018) 16 Cisneros v. Pasadena Indep. Sch. Dist., 2014 WL 1668500 (S.D. Tex. Apr. 25, 2014) 41 City of Boerne v. Flores, 521 U.S. 507 (1997) 26 Clay v. Bd. of Educ., 90 F.3d 1357 (8th Cir. 1996) 47 Collins v. City of Noifolk, 816 F.2d 932 (4th Cir. 1987) 48 Concerned Citizens of Hardee Cnty. v. Hardee Cnty. Bd. of Comm'rs, 906 F.2d 524 (11th Cir. 1990) 30, 32 Corr v. Metro. Washington Airports Auth., 740 F.3d 295 (4th Cir. 2014) 15 Cottier v. City of Martin, 604 F.3d 553 (8th Cir. 2010) 47 Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976 (4th Cir. 2015) 22 Davis v. Dusch, 205 Va. 676 (1964) 4 Dillard v. Baldwin Cnty. Commr's, 376 F.3d 1260 (11th Cir. 2004) 43 Dusch v. Davis, 387 U.S. 112 (1967) 4, 5 EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013) 52 Esposito v. S.C. Coastal Council, 939 F.2d 165 (4th Cir. 1991) 16 Fla. Ass'n of Rehab. Facilities, Inc. v. State of Fla. Dep't of Health &Rehab. Servs., 225 F.3d 1208 (11th Cir. 2000) 52 Growe v. Emison, 507 U.S. 25 (1993) passim v USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 7 of 65 Hall v. Virginia, 385 F.3d 421 (4th Cir. 2004) 28 Huot v. City of Lowell, 280 F. Supp. 3d 228 (D. Mass. 2017) 30, 32 I.N.S. v. Delgado, 466 U.S. 210 (1984) 21 Int'l Longshoremen's Ass'n, Loc. 1291 v. Phila. Marine Trade Ass'n, 389 U.S. 64 (1967) 52 Int'l Women's Day Planning Comm. v. City of San Antonio, 619 F.3d 346 (5th Cir. 2010) 16 John Allan Co. v. Craig Allen Co. LLC, 540 F.3d 1133 (10th Cir. 2008) 48 Johnson v. De Grandy, 512 U.S. 997 (1994) 49 Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir. 2005) 26 Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 1984) 26 Kowalski v. Tesmer, 543 U.S. 125 (2004) 21 League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 2014) 15 Levy v. Lexington Cnty., 589 F.3d 708 (4th Cir. 2009) 37, 38, 46 Levy v. Lexington Cnty., Sch. Dist. Three Bd. of Trustees, 2012 WL 1229511 (D.S.C. Apr. 12, 2012) 37 Lewis v. Alamance Cnty., 99 F.3d 600 (4th Cir. 1996) passim Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) 29 L ULAC, Council No. 4386 v. Midland Indep. Sch. Dist., 812 F.2d 1494 (5th Cir. 1987) 30 vi USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 8 of 65 L ULAC, Council No. 4434 v. Clements, 986 F.2d 728 (5th Cir. 1993) 2, 23, 27 L ULAC, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993) 25, 26, 30 Md. Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246 (4th Cir. 1991) 18 Miller v. Johnson, 515 U.S. 900 (1995) 29 Monroe v. City of Woodville, 881 F.2d 1327 (5th Cir. 1989) 38 Nextel Partners Inc. v. Kingston Township, 286 F.3d 687 (3d Cir. 2002) 18 Nixon v. Kent Cnty., 76 F.3d 1381 (6th Cir. 1996) passim Nordgren v. Hafter, 789 F.2d 334 (5th Cir. 1986) 20, 21 N.Y. State Rifle&Pistol Ass'n, Inc. v. City of New York, 140 S. Ct. 1525 (2020) 18 Raleigh Wake Citizens Ass'n v. Wake Cnty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016) 15 Rodriguez v. Harris Cnty., 964 F. Supp. 2d 686 (S.D. Tex. 2013) 41 Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004) 37 Roe v. Dep't of Defense, 947 F.3d 207 (4th Cir. 2020) 15 SEC v. Goble, 682 F.3d 934 (11th Cir. 2012) 52 Shaw v. Reno, 509 U.S. 630 (1993) 1, 29, 31, 50 Simpson v. City of Hampton, 166 F.R.D. 16 (E.D. Va. 1996) 17 vii USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 9 of 65 Singleton v. Wulff, 428 U.S. 106 (1976) 20 Smith v. Bd. of Supervisors, 801 F. Supp. 1513 (E.D. Va. 1992) 37 Solomon v. Liberty Cnty. Comm'rs, 166 F.3d 1135 (11th Cir. 1999) 49 Thornburg v. Gingles, 478 U.S. 30 (1986) passim United States v. City of Eastpointe, 378 F. Supp. 3d 589 (E.D. Mich. 2019) 41 United States v. Euclid City Sch. Bd., 632 F. Supp. 2d 740 (N.D. Ohio 2009) 49 United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) 22 U.S. Dep't of Labor v. Triplett, 494 U.S. 715 (1990) 19 Valero Terrestrial Corp. v. Paige, 211 F.3d 112 (4th Cir. 2000) 16, 17 Wright v. Sumter Cnty. Bd. of Elections&Registration, 979 F.3d 1282 (11th Cir. 2020) 43 Statutes 28 U.S.C. § 1291 3 28 U.S.C. § 1331 3 28 U.S.C. § 1342 3 52 U.S.C. § 10301 25, 26 52 U.S.C. § 10303 25 52 U.S.C. § 10310 25 Act of Aug. 6, 1975, Pub. L. 94-73, §§ 203, 207, 89 Stat. 401-402 25 Va. Code § 15.2-200 17 Va. Code § 24.2-129 10, 17 viii USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 10 of 65 Rules Fed. R. Civ. P. 65 14, 52 Other Authorities Bernard Grofman, Voting Rights in a Multi-Ethnic World, 13 Chicano-Latino L. Rev. 15, 23 (1993) 32 Charles A. Wright et al., Fed. Prac. & Proc., Juris. § 3531.9 (3d ed.) 20 ix USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 11 of 65 PRELIMINARY STATEMENT This case under Section 2 of the Voting Rights Act was brought by two Black voters ("Plaintiffs") asserting that the at-large method of electing Virginia Beach City Council members dilutes the votes of Black, Hispanic or Latino, and Asian voters, whom they label, together, "HBA" or "Minority" voters. Not one person of Hispanic or Asian descent joined the lawsuit. Neither this Court nor the Supreme Court has approved Plaintiffs' coalitional theory, and the Sixth Circuit rejected it 25 years ago as incompatible with the Act's plain text, structure, and purpose. See Nixon v. Kent Cnty., 76 F.3d 1381 (6th Cir. 1996) (en banc). Meanwhile, those courts endorsing coalitional claims have set a high bar for establishing coalitional "cohesion," demanding proof that majorities of each alleged constituency share candidate preferences with members of their own constituency and the others. The Supreme Court has confirmed that, if coalitional claims are even cognizable, a "higher-than-usual" need for this showing "obviously" applies. Growe v. Emison, 507 U.S. 25, 40-41 (1993). Yet Plaintiffs failed to present a single estimate of Asian or Hispanic cohesion. In fact, the unrebutted testimony below established that members of the Filipino community, the City's largest Asian group, often vote against Black- preferred candidates. Undeterred by the Supreme Court's condemnation of the assumption "that members of the same racial group...think alike, share the same political interests, and will prefer the same candidates at the polls," Shaw v. Reno, 509 U.S. 630, 647 (1993), Plaintiffs insisted that members of different groups share these attributes simply because they are not white. And they persisted in USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 12 of 65 demanding an injunction against the at-large system even after the Virginia General Assembly effectively repealed it, ensuring that it will never govern another election. The district court's ruling in Plaintiffs' favor was erroneous. The court lacked jurisdiction to advise that a repealed system violates the Act. It erroneously concluded that two Black voters may press a coalitional claim predicated on an alleged injury to tens of thousands of non-party "Minority" voters without establishing the elements of third-party standing. It misread Section 2's guarantee of racial equality to protect the supposed political coalition of persons sharing no racial or ethnic common denominator—even though the court-appointed special master concluded that it is not "statistically possible to determine the voting behavior of African-American, Asian-American, and Hispanic populations individually." SJA235. The court applied a relaxed cohesion standard where the Supreme Court commanded a strict standard. And, ultimately, it gave its imprimatur to a misguided and affirmatively harmful effort to utilize persons of Hispanic and Asian descent instrumentally to advance the cause of a group that cannot on its own meet the Section 2 criteria (an undisputed point the district court still, somehow, got wrong). Coalitional claims are "fraught with risks." LULAC, Council No. 4434 v. Clements, 986 F.2d 728, 785 n.43 (5th Cir. 1993) ("LULAC'). They should not be allowed. And, certainty, this one should not be allowed. The Court should reverse. 2 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 13 of 65 STATEMENT OF JURISDICTION Jurisdiction in the district court was proper under 28 U.S.C. §§ 1331 and 1342(a). The district court issued an injunction on March 31, 2021, and Defendants appealed on April 29, 2021. JA1278. This Court subsequently held that appeal in abeyance pending final judgment, which has since been issued and separately appealed. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF ISSUES 1. Is this case moot? 2. Do two Black Plaintiffs have standing to assert alleged interests of Asian and Hispanic voters? 3. Does Section 2 protect "coalitions" of different groups, and, if so, what legal standards apply to such a claim? 4. Did the district court commit legal or clear error in its Section 2 analysis? 5. Is an injunction ordering Virginia Beach to comply with Section 2 sufficiently definite? 3 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 14 of 65 STATEMENT OF THE CASE A. Factual Background 1. Virginia Beach is Virginia's most populous city. JA1153. It assumed its current form in 1963 when the City "consolidated with adjoining Princess Anne County, which was both rural and urban." Dusch v. Davis, 387 U.S. 112, 113 (1967); JA1153. The Virginia General Assembly—which regulates the City's elections—attempted "to produce a plan which would be acceptable to the voters in the half of the county which was rural and to those in the half which was urban and which would, at the same time, win the support of the voters in the old city." Davis v. Dusch, 205 Va. 676, 677 (1964); JA 1154-55. But its original effort, allocating members to the City Council through a borough system, "was invalidated in 1965 under the one-person, one-vote principle." JA1155; Dusch, 387 U.S. at 114. In response, the General Assembly instituted a system of at-large voting. JA1155. The Council comprises eleven members. Four, including the mayor, were elected at large without regard to residence, and seven were elected at-large but were required to reside, respectively, one in each of seven residency districts.1 Dusch, 387 U.S. at 114; JA1151. This system also faced an equal- protection challenge, but the Supreme Court rejected it, finding the system "makes no distinction on the basis of race, creed, or economic status or 1 Because Plaintiffs do not contend the mayor should be elected from a single- member district, this brief refers to the residency scheme as having three at-large positions. 4 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 15 of 65 location," bore no hint of "invidious discrimination," and served the City's "compelling need" to create "a detente between urban and rural communities that may be important in resolving the complex problems of the modern megalopolis in relation to the city, the suburbia, and the rural countryside." Dusch, 387 U.S. at 115-17.2 The at-large system was used through the November 2020 councilmanic elections and is the system challenged in this case. The City, however, has periodically examined whether to recommend a change to the General Assembly. For example, "[i]n 1990, the City conducted a `comprehensive review...,' seeking `views from every conceivable interested party as to the best manner to provide representation for the citizens of the City.' JA1157 (citation omitted). As the district court recounted, "[t]he City declined proposals for race- based single-member districts that `stretched nearly all the way across the City, and in many instances' were 'only a block wide or came together at a single point.' JA1157 (citation omitted). The Eastern District of Virginia "also rejected these racial gerrymanders and the Voting Rights Act lawsuit that sought to impose them." JA1157. The City also has redrawn its residency districts after the release of each decennial census to maintain them at substantially equal population. In 2011, the City adopted a new residency plan, including one residency district drawn 2 The district court's assertion that "Defendants' [sic] have not proffered a reasonable explanation for designing such system," JA1277, is therefore perplexing. See Dist.Ct.Dkt.237 at 1-3. 5 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 16 of 65 with a near majority racial and ethnic minority populations. JA1276. The U.S. Department of Justice precleared the plan under Section 5 of the Act. JA2184. 2. As of the 2010 Census, white residents composed 64.49% of the City's population (and 67.38% of the voting-age population), Black residents 19.00% (18.10%), Hispanic residents 6.62% (5.64%), and Asian residents 6.01% (6.30%). JA1159. Members of these disparate minority groups are not significantly concentrated in any portion of the City. JA2187-90; JA0675-78. In particular, the Asian population is widely distributed within the City. JA0677; JA0716. Through the Civil Rights Era, Virginia Beach, like most southern jurisdictions, imposed de jure and de facto discrimination against Black residents. The City regrets these injustices. However, the Asian and Hispanic communities are relatively new to the City and do not share that history. JA2277; JA1057-59; JA1001-02. The largest of the Asian communities is the "vibrant Filipino community," which has grown in the City largely by consequence of the Naval presence there. JA1160; JA1057. Multiple trial witnesses—including the City's redistricting consultant, leaders of the Filipino community, and an expert in local politics—testified that the Filipino community is conservative, leans Republican, is largely Roman Catholic and pro-life, and supports a strong military. JA0858-60; JA0334; JA0359; JA0717; JA0722-23; JA1003; JA2269- 70; JA2293-94. They testified that the Filipino community does not regularly support candidates preferred by the Black community, who are typically Democratic and lean progressive. JA0860. This testimony went unrebutted. 6 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 17 of 65 Portions of Virginia Beach are represented in the Virginia House of Delegates by Delegate Kelly Fowler, a Hispanic and Filipina, whose district is majority white. JA0319-20. The current Virginia Beach circuit clerk of court, an at-large-elected official, is also Filipina. JA 1168. A Filipino, Ron Villanueva, was previously elected to the City Council, JA1151, as was a Hispanic, Rita Bellitto, JA1262.3 Plaintiffs presented no evidence that anyone of Asian or Hispanic descent has ever lost a Virginia Beach election to a white candidate.' The district court's findings show that members of the Asian communities generally enjoy a socio-economic status comparable with, if not better than, that of whites. Among other things, "the City had overutilized Asian-American owned business" in public contracting. JA1268. "Asian students perform at the same, or higher, rate compared to white students," and Asian high-school graduation rates are comparable with white rates. JA1249. More Asian than white graduates go on to college. JA1250. Asian household income exceeds white household income. JA1251. White and Asian home-ownership rates are almost identical. JA1252. B. Procedural History 1. In November 2017, one Black Plaintiff, Latasha Holloway, filed a pro se complaint in the Richmond Division of the Eastern District of Virginia 3 The district court's assertion that Defendants "offered no evidence of her ethnicity," JA1262, is clearly erroneous. See JA2638. One Filipina candidate, Kelly Fowler, defeated a Filipino, Ron Villanueva, in a 2017 House of Delegates contest. 7 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 18 of 65 against Virginia Beach, the City Council, its members, and other officials (Defendants or the City) under Section 2 of the Act. The complaint made no mention of a multi-racial coalition. JA0037. On February 12, 2018, the case was transferred to the Norfolk Division. JA0045. The case underwent a lengthy period of delay through a series of miscellaneous motions and an improper interlocutory appeal. See JA0001-0036. 2. In November 2018, two Black candidates, Sabrina Wooten and Aaron Rouse, prevailed in contested councilmanic races. Neither then knew of this lawsuit, JA0506; JA2429, and there is no evidence that it impacted the election. A week after the election, an amended complaint was filed, this time by counsel from the Campaign Legal Center on behalf of two Black voters, Ms. Holloway and Georgia Allen. JA0049. The amended complaint alleged a new theory, that the "current at-large scheme impermissibly denies Black, Hispanic or Latino, and Asian-American voters ("Minority Voters") an equal opportunity to participate in the political process and to elect representatives of their choice." JA0047. It alleged that the combined "Minority" population "is sufficiently numerous and geographically compact to form a majority of the total population and citizen voting age population in at least two single-member City Council districts in a demonstrative 10-district plan." JA0055. No members of the Asian or Hispanic communities joined the case, and Plaintiffs testified that they made no effort to obtain such participation. JA0524; JA0171. 8 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 19 of 65 The court (the Honorable Raymond A. Jackson, presiding) conducted a six-day bench trial in October 2020. At trial, Plaintiffs presented multiple alternative districting plans purporting to show that voting-age persons labeled "Minority" can constitute majorities in one or more single-member districts. JA1195-97. Additionally, Plaintiffs' statistical expert, Dr. Spencer, overlaid the illustrative districts with past councilmanic election results and concluded the districts would improve electoral prospects of Black-preferred candidates because, in his view, they would "likely...benefit from cross-over support from white voters." JA1581. Dr. Spencer also provided statistical estimates of racial and ethnic voting patterns, but did not estimate patterns of the Asian and Hispanic communities. Rather, Dr. Spencer lumped Asian and Hispanic voters into an "All Minority" category, see, e.g., JA1578, that also included Black voters (who constitute by far the largest of the three groups) and other racial minorities (such as Native Americans), JA443. Dr. Spencer testified that the Asian and Hispanic groups are too small and dispersed for purposes of estimating their voting preferences by standard means. JA0439-40. As discussed above, unrebutted qualitative evidence at trial showed divergent political preferences among Black, Asian, and Hispanic groups. 3. In November 2020, Ms. Wooten was reelected to her councilmanic seat. (Mr. Rouse did not stand for election, due to the City's staggered terms.) No further elections are scheduled to occur until November 2022. 9 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 20 of 65 On March 18, 2021, the Virginia General Assembly changed Virginia Beach's electoral system, enacting Assembly House Bill 2198 (HB2198). The legislation provided that, "in a city or town that imposes district-based or ward- based residency requirements for members of the city or town council, the member elected from each district or ward shall be elected by the qualified voters of that district or ward and not by the locality at large." JA 1139. Because seven of Virginia Beach's districts are subject to a "residency requirement," JA1150- 51; JA 1154, they became single-member districts as of January 1, 2022, HB2198's effective date, without federal-court intervention. However, by operation of the one-person, one-vote principle, the prior residency districts would be malapportioned. As a result, the impact of HB2198 is to render the at- large scheme unusable and to require the City to redistrict. Further, another new law, the Virginia Voting Rights Act, subjects a new redistricting plan to a state- level preclearance procedure to ensure minority communities have an equal opportunity to elect their preferred candidates. Va. Code § 24.2-129. On March 22, 2021, Defendants filed a notice of HB2198, asserting that the case was moot. JA 1134. 4. On March 31, the district court released a 133-page opinion and order finding that Virginia Beach's at-large system violates Section 2, permanently enjoining the City from future use of the at-large system, and forbidding it from otherwise violating Section 2. JA1277. In a footnote, the court found that HB2198 does not moot the case. JA1147. The district court also concluded, inter alia, that coalitional claims are cognizable under Section 2, 10 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 21 of 65 JA 1189, that members of each constituency in an alleged coalition need not participate as plaintiffs, JA1227, and that Plaintiffs need not provide estimates of voting preferences of members of each constituency to prove their claim, JA1230-31. 5. The City appealed, but this Court held the appeal in abeyance pending remedial proceedings in the district court and final judgment. The district court commenced remedial proceedings by receiving proposed remedial plans from the parties, and it subsequently appointed Dr. Bernard Grofman as special master. SJA215. On October 26, 2021, the district court provided the parties the report of Dr. Grofman. SJA220. Dr. Grofman's report proposed a remedial redistricting plan and analysis concerning that plan and the liability issues before the court. Dr. Grofman concluded, in relevant part, that "separating out the voting behavior of each individual group in the composite minority grouping is, for all practical purposes, impossible." SJA284. That conclusion was materially identical to the opinion of the City's remedial expert, Dr. Lisa Handley, a renowned Voting Rights Act expert, that an expert "cannot draw any conclusions about Asian or Hispanic voting preferences in Virginia Beach." SJA108. Only by accepting the unsupported assumption that these groups should be combined into one did Dr. Grofman conclude that the coalition is cohesive. See SJA290. The parties filed two rounds of briefing in response to the special master's report. The City argued that Dr. Grofman's report confirmed that coalitional cohesion has not been established and that the court should dissolve its 11 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 22 of 65 injunction. Dist.Ct.Dkt.283 at 2. On December 22, 2021, the district court entered an order adopting the remedial plan, as revised,' and making supplemental findings in an effort to bolster its liability ruling. SJA359-64. It entered final judgment, SJA364, and the City timely appealed, SJA365. SUMMARY OF THE ARGUMENT I. The district court erred in entertaining this case. First, the case is moot. The at-large system will never govern another election, as HB2198 automatically shifts the City from at-large to single-member seats. The district court misread that enactment, believing the City may voluntarily readopt at-large seats, but it cannot: the City lacks independent legislative authority to amend its charter, which would have to be accomplished to eliminate the residency requirements that HB2198 transforms into single- member districts. And any challenge to the new system must be adjudicated on its own merits, not on the merits of Plaintiffs' evidence and arguments regarding the at-large system. Second, Plaintiffs, two Black voters, lack standing to assert a coalitional claim dependent on the rights of Hispanic and Asian voters. The district court erroneously thought they need not assert those third-party rights, but prevailing on a coalitional claim depends on the rights and interests of all constituencies of the coalition. Members of the Black community could not hope to win a 5 Dr. Grofman issued a revised plan in response to criticisms the City lodged against his initial proposal, which are not relevant to this appeal. SJA342. 12 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 23 of 65 coalitional claim independent of the rights of other groups and therefore have no choice but to assert those rights, which Plaintiffs lack standing to do. II. The decision below is also erroneous on the merits. Plaintiffs failed to prove that "a bloc voting majority [is] usually...able to defeat candidates supported by a politically cohesive, geographically insular minority group." Thornburg v. Gingles, 478 U.S. 30, 49 (1986). They did not plead or prove that the City's Black community is sufficiently large, compact, and insular to constitute the majority of a single-member district, and the district court's inexplicable finding that they met this standard cannot stand. The claim Plaintiffs did plead and attempt to prove, a coalitional claim on behalf of the Black, Hispanic, and Asian communities lumped together, is not a legally proper invocation of Section 2. The statute forbids inequality "on account of race or color," 52 U.S.C. § 10301(a), but constituencies in a coalition share, at best, political interests. And the statute's conceptual dichotomy between "members of a class"—singular—and "other members of the electorate"—white and non-white—undermines the dichotomy of a coalition, which places white voters in one category and "All Minority" in another. The Act's structure and purpose, guaranteeing the right of members of a protected class to "elect [their preferred] candidate based on their own votes and without assistance from others," Bartlett v. Strickland, 556 U.S. 1, 14 (2009), further undercuts any claim to coalitional relief. Plaintiffs also failed to establish coalitional cohesion, another threshold element of a Section 2 claim. They presented no evidence—quantitative or 13 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 24 of 65 qualitative—of Hispanic and Asian voting patterns alone. Instead, Plaintiffs and the district court relied solely on "All Minority" aggregate estimates, even though the smaller Asian and Hispanic communities can easily be buried in the far larger Black group and even though estimates showing Black preferences consistently exceeded the "All Minority" preferences estimated for the same candidates. This impermissibly attributed Black voting preferences to Asians and Hispanics. And the district court adhered to this approach even after its special master concluded it is "mathematically impossible" to estimate the "voting behavior of each individual group." SJA285. Moreover, the qualitative evidence, without rebuttal, established that the City's largest Asian community prefers conservative candidates and does not vote in line with the Black community. The district court erred in applying a relaxed cohesion standard, where a stringent standard "quite obviously" applies. Growe, 507 U.S. at 40-41. The district court erred further in concluding that white bloc voting "usually" defeats the minority-preferred candidate. Its own factfinding showed a 50-50% split, with minority-preferred candidates successful half the time. The court erroneously discounted races where the minority-preferred candidate was white, in contravention of this Court's precedent, and it erroneously discounted the success of Black candidates after this case was filed, without identifying an impact of this then-unknown lawsuit on those contests. III. The district court's injunction is an impermissibly vague obey-the- law injunction and does not "describe in reasonable detail...the act or acts restrained or required." Fed. R. Civ. P. 65(d)(1)(C). The injunction 14 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 25 of 65 impermissibly threatens with contempt a broad array of actions the City might take, even unknowingly, and even actions the City merely implements at the command of the General Assembly. STANDARD OF REVIEW "Whether the district court had subject matter jurisdiction is a question of law that [this Court] review[s] de novo," Anita's New Mexico Style Mexican Food, Inc. v. Anita's Mexican Foods Corp., 201 F.3d 314, 316 (4th Cir. 2000), as is the question whether Plaintiffs have (or need) third-party standing, see Corr v. Metro. Washington Airports Auth., 740 F.3d 295, 300 (4th Cir. 2014). The Court reviews "judgments resulting from a bench trial under a mixed standard of review: factual findings may be reversed only if clearly erroneous, while conclusions of law are examined de novo." Raleigh Wake Citizens Ass'n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 340 (4th Cir. 2016) (citation omitted). "Of course, if the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard." Id. (citation omitted). The Court reviews "the scope of a district court's injunction for abuse of discretion." Roe v. Dep't of Defense, 947 F.3d 207, 231 (4th Cir. 2020), as amended(Jan. 14, 2020). "A district court abuses its discretion when it misapprehends or misapplies the applicable law." League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 235 (4th Cir. 2014). 15 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 26 of 65 ARGUMENT I. The District Court Erred in Reaching the Merits A. The Case Is Moot This case became moot when HB2198 was enacted, because it ended the at-large system Plaintiffs challenged. JA 1140; JA 1146-47. "[S]tatutory changes that discontinue a challenged practice are `usually enough to render a case moot.' Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000) (citation omitted). This includes amendments that replace the challenged act with "a significantly amended statutory scheme." Esposito v. S.C. Coastal Council, 939 F.2d 165, 171 (4th Cir. 1991). Here, HB2198 transformed the challenged at-large system to a new system dominated by seven single-member districts (i.e., the seven residency districts), which were precleared under Section 5, and containing only three at-large districts. Because Plaintiffs challenged an "election method, in which all councilmembers are elected at-large in citywide elections," JA0048 (emphasis added), the legislative shift away from that system to one where each voter votes in a single-member district was not "minor and insignificant." Valero, 211 F.3d at 116. It repealed the system challenged in this lawsuit. The district court erroneously issued an advisory opinion in enjoining a system that will never be used again. See 11126 Baltimore Blvd. v. Prince George's Cnty., 924 F.2d 557, 557 (4th Cir. 1991) (per curiam); Checker Cab Operators, Inc. v. Miami-Dade Cnty., 899 F.3d 908, 916 (11th Cir. 2018); Int'l Women's Day Planning Comm. v. City of San Antonio, 619 F.3d 346, 357 (5th Cir. 2010). Further, even the existing residency 16 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 27 of 65 districts may not be used in future elections because the 2020 census results renders them malapportioned and obsolete, and any new redistricting will be subject to preclearance under the Virginia Voting Rights Act to ensure that the plan affords minority communities an equal opportunity to elect their preferred candidates, Va. Code § 24.2-129. The district court's reasons for retaining jurisdiction lack merit. JA1147. First, the court invoked the voluntary-cessation doctrine, opining that "the law allows Defendants to eliminate the district residency requirements for the seven seats on the City Council and allows them to retain the at-large system of election for those positions." Not so. Virginia Beach's residency districts are set forth in the City's charter. Eliminating the residency requirement would require an amendment to that charter. But Virginia is a Dillon's Rule jurisdiction, and "[o]nly the Virginia General Assembly can amend the city charter." Simpson v. City of Hampton, 166 F.R.D. 16, 17 (E.D. Va. 1996); Va. Code § 15.2-200; JA 1151-52. "The `voluntary cessation' exception to mootness has no play in this case" because the elimination of the at-large system "was not voluntary" by the City, but was imposed by the General Assembly, which transformed the residency requirements (which only it can repeal) into single-member district through HB2198 (which only it can repeal). Am. BarAss'n v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011). Nor does the General Assembly's theoretical ability to repeal the newly enacted HB2198, or amend the City's charter, breathe life into this dead case. See Valero, 211 F.3d at 116. 17 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 28 of 65 Second, the district court's assertion that HB2198 "does not specifically address Plaintiffs' Section 2 claims of voter dilution" misses the effect of HB2198, which eliminates the "election method, in which all councilmembers are elected at-large in citywide elections." JA0048. Plaintiffs sought relief from "Virginia Beach's at-large method," id., not a system with seven single-member districts subject to state-law preclearance. Any challenge to the single-member-district system must be brought through a new action or amended complaint. N.Y. State Rifle&Pistol Ass'n, Inc. v. City ofNew York, 140 S. Ct. 1525, 1526 (2020) (directing that allegations that revised statute exhibited features of challenged statute be raised in a new action); Md. Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1249-50 (4th Cir. 1991) (similar). And it must be brought after the City redraws the existing residency districts, and after preclearance review, because only when that occurs may the effects of the new plan be evaluated. At a minimum, it was Plaintiffs' burden to "adduce[] evidence" that the challenged features of the at-large system have "not been substantially altered" in HB2198. Nextel Partners Inc. v. Kingston Township, 286 F.3d 687, 693 (3d Cir. 2002). They presented no such evidence, see Dist.Ct.Dkt.241, and could not have, given how different the new system is from the one they challenge and given that the new system has yet to take form. Third, the court doubly erred in announcing it could give "effectual relief' in the form of an injunction mandating "the implementation of an election system for the City Council that complies with Section 2 of the Voting Rights Act" and that "Virginia Beach comply with Section 2 of the Voting Rights Act" 18 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 29 of 65 in "all future elections." JA1147 (citations omitted). For one thing, without proof that the seven-member system is unlawful, "there neither has been a wrong nor can be a remedy." Growe, 507 U.S. at 41 (emphasis added). For another thing, vague directives to comply with the law in the future are not available relief. See Section III, infra. The possibility of ordering a defendant to comply with law that applies regardless would, if deemed an exception to mootness, apply in every case. B. Plaintiffs Lack Third-Party Standing To Assert the Rights of All Virginia Beach "Minority" Residents The district court also erred in permitting Plaintiffs to bring a Section 2 "coalition" claim on behalf of all "Minority" residents of Virginia Beach, including members of the Asian and Hispanic communities. The court ultimately concluded that "[t]wo or more politically cohesive minority groups can bring a claim as a coalition under Section 2." JA 1181. But two or more minority groups did not bring this claim; two Black voters did. Standing principles incorporate a "general prohibition on a litigant's raising another person's legal rights." Lexmark Intl, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (citation omitted). Unless an exception applies, a plaintiff"must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." U.S. Dep't of Labor v. Triplett, 494 U.S. 715, 720 (1990) (citations omitted). The district court erred in permitting Plaintiffs to bring a coalitional claim predicated on the rights of non-party Asian and Hispanic voters, who were not even asked to join, 19 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 30 of 65 and who are "the best proponents of their own rights." Singleton v. Wulff, 428 U.S. 106, 114 (1976). The district court erroneously found no third-party standing problem at all, positing that "Plaintiffs' personal legal interests have been injured" and that Hispanic and Asian communities were relevant only insofar as Plaintiffs put on "statistical evidence that the votes of their community, and minority voters generally, have been diluted."' JA0100. That is legally incorrect. Plaintiffs' assertions concerning the Asian and Hispanic communities are not mere circumstantial evidence of harm to Plaintiffs, but the coalitional claim itself. See Nordgren v. Hafter, 789 F.2d 334, 338 (5th Cir. 1986) (holding that "a white Jewish female...cannot successfully assert standing on behalf of aggrieved black applicants to the Mississippi bar. She is not their representative."). The rights of third parties are necessarily asserted in cases where a "litigant appears in court and seeks to challenge the validity of a statute or other governmental action," and the challenge will fail "[i]f validity were to be measured solely in light of the litigant's interests." Charles A. Wright et al., Fed. Prac. & Proc., Juris. § 3531.9 (3d ed.). Here, members of the Black community can prevail only by showing that Black voters "make up more than 50 percent of the voting-age population in the relevant geographic area." Bartlett, 556 U.S. at 18. Plaintiffs did not plead this, they put on no evidence of it, and none could 6 Indeed, Plaintiffs failed to put on statistical evidence about Asian and Hispanic voting preferences. See Section II.B.1, infra. 20 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 31 of 65 have been adduced. See Section II.A.1, infra. Only by also asserting the alleged rights of members of the Asian and Hispanic communities could a coalitional claim succeed. See Nordgren, 789 F.2d at 338. Moreover, Plaintiffs would have no entitlement to "at least two single-member City Council districts" comprising a majority of "minority population," JA0055, without asserting the rights of members of the Asian and Hispanic communities. See I.N.S. v. Delgado, 466 U.S. 210, 217 n.4 (1984). Although there are exceptions to the bar on asserting third parties' rights, Kowalski v. Tesmer, 543 U.S. 125, 130 (2004), Plaintiffs below asserted that they "are not alleging third-party standing," Dist.Ct.Dkt.156 at 27, and the district court agreed, JA0100. Any such invocation is therefore waived. II. Plaintiffs' Section 2 Claim Fails on the Merits A Section 2 plaintiff must establish each of three preconditions set forth in Thornburg v. Gingles, 478 U.S. 30 (1986), known as the "Gingles preconditions": (1) "the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district," (2) "the minority group must be able to show that it is politically cohesive," and (3) "the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it...usually to defeat the minority's preferred candidate." Id. at 50-51. "If these preconditions are met, the court must then determine under the `totality of circumstances' whether there has been a violation of Section 2." Lewis v. Alamance Cnty., 99 F.3d 600, 604 (4th Cir. 1996) (citation omitted). The district court erred at each step. 21 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 32 of 65 A. The District Court Erred on the First Gingles Precondition A Section 2 plaintiff must establish at least that the relevant minority group constitutes "more than 50 percent of the voting-age population in the relevant geographic area," Bartlett, 556 U.S. at 18, and that the group is "geographically compact," Gingles, 478 U.S. at 50. 1. Plaintiffs Did Not Plead or Prove a Single-Race Claim The district court clearly erred in its alternative conclusion that "Plaintiffs established that the African American community in Virginia Beach is sufficiently large and geographically compact" to satisfy the first Gingles precondition. JA1209. Not only did Plaintiffs present no evidence of this, but they did not even plead it, JA0060. The adjudication of an un-pleaded, untried claim contravened Federal Rule of Civil Procedure 15(b)(2), see Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976, 983 (4th Cir. 2015), and "the principle of party presentation," see United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). The finding also is clearly erroneous. The district court cited no evidence that Black voters alone can constitute a majority in even one single-member district. Its sole citation was to Table 1 of its opinion, JA1209, which did not include a single entry reflecting that Black voters, without Hispanic and Asian voters, can constitute a majority of a compact, single-member district, JA1197. Plaintiffs advanced a coalitional claim for a reason. "The impetus for two minority groups seeking to proceed as a coalition under Section 2 is apparently 22 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 33 of 65 their inability, as separate groups, to overcome the first Gingles threshold factor." LULAC, 986 F.2d at 785 n.43. The remedial phase confirmed that a single-race claim is unavailable. Dr. Grofman concluded that only a combination of minority groups can satisfy the 50% minority voting-age population threshold, SJA235, and no proposed remedial plans achieved a majority-Black district, SJA158-259 (special master failing to achieve any Black district above 35% BVAP); see also SJA134 (similar failing on Plaintiffs' part). The district court failed to address this issue, SJA359, despite receiving notice of the error, Dist.Ct.Dkt.283 at 9. 2. Plaintiffs' Coalitional Claim Is Not Cognizable The claim Plaintiffs did plead, a coalitional claim, is not a cognizable invocation of Section 2. "Even the most cursory examination reveals that § 2 of the Voting Rights Act does not mention minority coalitions, either expressly or conceptually." Nixon, 76 F.3d at 1386. a. Section 2 forbids the "denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 52 U.S.C. § 10301(a). But "[a] group tied by overlapping political agendas but not tied by the same statutory disability is no more than a political alliance or coalition." Campos v. City of Baytown, 849 F.2d 943, 945 (5th Cir. 1988) (Higginbotham, J., dissenting from denial of rehearing en banc). The Act's "purpose was to eliminate racial discrimination—not to foster particular political coalitions." LULAC, 986 F.2d at 785 n.43 (citation omitted). 23 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 34 of 65 It is beyond serious dispute that Blacks, Asians, and Hispanics in Virginia Beach do not share a common identity of "race or color." The district court found that there are "important differences between and within the Minority Community." JA1211. Those differences are important precisely because they go to the lack of a common racial heritage and shared American experience. As the district court found, Filipinos—the largest among Virginia Beach's Asian communities—have congregated in Virginia Beach over the decades in large part due to the City's "Naval presence." JA1160. By and large, the Black and Hispanic communities arrived and have grown in the region for different reasons and at different times. These dynamics are typical of coalitional claims. See JA1185 (quoting precedent allowing a coalitional claim even though "Blacks and Mexican-Americans are racially and culturally distinct" (citation omitted)). The court dismissed these conceded differences, concluding that "differences in race, color, or language" can be overcome if these persons are "politically cohesive." JA1191 (emphasis added). But this reasoning only demonstrates the political, not racial, nature of the claim. In fact, the court— relying on generic dictionary definitions—extended Section 2 protections to any "group sharing the same economic or social status," JA 1191 (footnote omitted), opining that "[m]utual political interests are present in any group seeking to elect a particular candidate," JA1194 (emphasis added). This interpretation strayed far from the statutory North Star "of race or color." 52 U.S.C. § 10301(a). b. Other textual indicia in the Act foreclose coalitional claims. To begin, the statute "consistently speaks of a `class,' in the singular," Nixon, 24 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 35 of 65 76 F.3d at 1386, and offers protection to "members of a class," not classes. 52 U.S.C. § 10301(a). "Had Congress chosen explicitly to protect minority coalitions it could have done so by defining the `results' test in terms of protected classes of citizens. It did not." LULAC, Council No. 4434 v. Clements, 999 F.2d 831, 894 (5th Cir. 1993) ("Clements") (Jones, J., concurring). The district court missed this point in focusing on the plural statutory term "members." JA1191. But those "members" must be "of a class"—singular; the statute reinforces this by clarifying that "its members"—members of the singular class—enjoy protection. 52 U.S.C. § 10301(b) (emphasis added); Nixon, 76 F.3d at 1386. Moreover, the district court overlooked Section 2's comparative test, which hinges on a showing that "members of a class" under "subsection (a)" have "less opportunity than other members of the electorate to participate in the political process...." 52 U.S.C. § 10301(b) (emphasis added). This contrast between "members of a class" and "other members of the electorate" places all persons not "of' the singular "class" in the basket of "other members of the electorate." The statute therefore contrasts Plaintiffs' class of Black voters with Asian and Hispanic voters, who are just as much "other members of the electorate" as are white voters. The statutory definitions confirm this. Section 2 was amended in 1975 to include "language minorities," 52 U.S.C. § 10303(f), a term Congress defined to mean "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage," 52 U.S.C. § 10310(c)(3); see Act of Aug. 6, 1975, Pub. L. 94-73, §§ 203, 207, 89 Stat. 401-402. "That each of these groups was 25 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 36 of 65 separately identified indicates that Congress considered members of each group and the group itself to possess homogeneous characteristics." Clements, 999 F.2d at 894 (Jones, J., concurring). c. That statutory meaning flows from constitutional limits on congressional power. "[T]he Voting Rights Act is premised upon congressional `findings' that each of the protected minorities is, or has been, the subject of pervasive discrimination and exclusion from the electoral process." Nixon, 76 F.3d at 1390. The scope of congressional findings limits the permissible scope of the Act because these findings are necessary to Congress's enforcement of the Fifteenth Amendment. See, e.g., Johnson v. Governor of State of Fla., 405 F.3d 1214, 1231 (11th Cir. 2005); Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368 (2001). Congress made findings to support enacting Section 2 protections for Black voters, see Jones v. City of Lubbock, 727 F.2d 364, 374-75 (5th Cir. 1984) (collecting findings), and for extending those protections to language minorities, 52 U.S.C. § 10303(f)(1). But a "coalition of protected minorities is a group of citizens about which Congress has not made a specific finding of discrimination." Nixon, 76 F.3d at 1391. "To assume...that a group composed of both minorities," or several, "is itself a protected minority is an unwarranted extension of congressional intent," Campos, 849 F.2d at 945 (Higginbotham, J., dissenting from denial of rehearing en banc), and congressional authority, see City of Boerne v. Flores, 521 U.S. 507, 519 (1997). d. Coalitional claims also conflict with the statutory scheme and purpose. For one thing, "a coalition theory could just as easily be advanced as a 26 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 37 of 65 defense in Voting Rights Act cases, a position that courts would be logically bound to accept if plaintiff coalitions were allowed, yet a position at odds with congressional purpose." Nixon, 76 F.3d at 1391. The theory would empower jurisdictions to create dilutive coalitional districts to defend itself from a claim for majority-minority districts. See Campos, 849 F.2d at 944-46 (Higginbotham, J., dissenting from denial of rehearing en banc). And coalition claims are "fraught with risks," as members of one group may bring them to "increase their opportunity to participate in the political process at the expense of members of the other minority group." LULAC, 986 F.2d at 785 n.43. Moreover, allowing some groups (not all) "to further their mutual political goals" hijacks Section 2 for partisan ends. Nixon, 76 F.3d at 1392. A major political party that enjoys substantial support from certain racial groups can claim a Section 2 right to a districting scheme that favors that party's interests, coopting these groups' minority status for partisan advantage. If allowed, this would empower partisan interests to politicize the Act in ways that will ultimately undermine, rather than further, congressional purpose and the integrity of the Act. e. Coalition claims are untenable for the same reasons the Supreme Court rejected crossover claims—i.e., claims asserting the right of a minority group to districts in which its members join with whites to elect their shared preferred candidates. Bartlett, 556 U.S. at 13-25. Bartlett read the Act to reach "African-Americans standing alone," i.e., to "elect [their preferred] candidate based on their own votes and without assistance from others." Id. at 14. The Court explained: "Nothing in § 2 grants special protection to a minority group's 27 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 38 of 65 right to form political coalitions." Id. at 15; see also id. at 20 ("The statute does not protect any possible opportunity or mechanism through which minority voters could work with other constituencies to elect their candidate of choice."). So too here. The Court also explained that Section 2 case law "does not impose on those who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters." Id. Section 2 protects a racial group's opportunity to make its "own choice," and "[t]here is a difference between a racial minority group's 'own choice' and the choice made by a [crossover] coalition" of white and Black voters. Id. The coalitional problem is no different. This Court's decision in Hall anticipated Bartlett's holding and reasoning, including the view that members of a minority group must "have the potential to elect a candidate on the strength of their own ballots" before claiming Section 2 protection. Hall v. Virginia, 385 F.3d 421, 429 (4th Cir. 2004). Indeed, Bartlett quoted Hall for the proposition that the Act does not "grant minority voters 'a right to preserve their strength for the purposes of forging an advantageous political alliance.' 556 U.S. at 14-15 (quoting 385 F.3d at 431). That reasoning equally precludes coalitional claims. So too does Bartlett's concern "for workable standards and sound judicial and legislative administration." Id. at 17. "Determining whether a § 2 claim would lie—i.e., determining whether potential districts could function as crossover districts—would place courts in the untenable position of predicting many political variables and tying them to race-based assumptions." Id. 28 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 39 of 65 Coalitional claims fare even worse, requiring (in the district court's words) courts to make findings on "the complex intersectional ways in which citizens identify as minorities." JA1192. That amorphous concept cannot be reduced into cognizable, and consistently applied, legal judgments. And it is impossible to leave even white voters out of the calculus: here, Plaintiffs' proposed alternative districts were projected to perform only because of anticipated "cross- over support from white voters." JA1581 (emphasis added). Hence, Bartlett's concern that reading crossover claims into Section 2 would likely render it unconstitutional applies with equal force here. 556 U.S. at 21. Bartlett observed that a Section 2 crossover-district requirement would greatly increase the use of racial classifications and "unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions." Id. (citation omitted). If that is so with two races (white and Black) it is all the more so with several. In this case, there are three "Minority" groups; in the next, there could be five or seven. The redistricting authorities forced to consider the innumerable possible coalitions that might exist in their jurisdictions would be overwhelmed with racial considerations. "That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as 'the predominant factor motivating the legislature's decision.'" Id. at 21-22 (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)). The flawed assumption "that members of the same racial group...think alike, share the same political interests, and will prefer the same candidates at the polls," Shaw v. Reno, 509 U.S. 630, 647 (1993), fares worse 29 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 40 of 65 when applied generically across "Minority" groups, simply because they are not white. f. The decisions recognizing coalitional claims are not sound and do not merit the Court's adherence. They provide precious little analysis, frequently bypassing the predicate statutory question in favor of case-specific analysis. See, e.g., Bridgeport Coal. For Fair Representation v. City of Bridgeport, 26 F.3d 271, 275- 76 (2d Cir.), vacated sub nom. City of Bridgeport, Conn. v. Bridgeport Coal. For Fair Representation, 512 U.S. 1283 (1994); LULAC, Council No. 4386 v. Midland Indep. Sch. Dist., 812 F.2d 1494, 1498-1502 (5th Cir.), vacated, 829 F.2d 546 (5th Cir. 1987). One leading case found coalitional claims viable simply because the Act does not expressly prohibit them, see Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988), an approach that has drawn cogent criticism, Clements, 999 F.2d at 895 (Jones, J., concurring) ("The proper question is whether Congress intended to protect coalitions."). Other decisions assumed that coalitional claims are authorized under the Act but rejected them on the merits, without discussing the anterior legal question. See Concerned Citizens of Hardee Cnty. v. Hardee Cnty. Bd. of Comm'rs, 906 F.2d 524, 526-27 (11th Cir. 1990); Badillo v. City of Stockton, 956 F.2d 884, 890 (9th Cir. 1992), as amended (Apr. 27, 1992). Another court simply chose to "remain faithful to the reasoning of the majority of the circuit and district courts which have considered the issue," Huot v. City of Lowell, 280 F. Supp. 3d 228, 236 (D. Mass. 2017), notwithstanding that the "majority" of courts have offered little "reasoning" for their rulings. 30 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 41 of 65 B. The District Court Erred on the Second Gingles Precondition The second Gingles precondition requires proof that members of the relevant minority group "constitute a politically cohesive unit." Gingles,478 U.S. at 56. "If the minority group is not politically cohesive, it cannot be said that the selection of [an at-large] electoral structure thwarts distinctive minority group interests." Id. at 51. Accordingly, "minority-group political cohesion never can be assumed, but specifically must be proved in each case in order to establish that a redistricting plan dilutes minority voting strength in violation of § 2." Shaw, 509 U.S. at 653 (citing Growe, 507 U.S. at 40-41). 1. The District Court Erroneously Applied a Relaxed Cohesion Standard The district court applied an untenable cohesion standard. Even if coalitional claims are viable, the standard of cohesion must be strict. In Growe, the Supreme Court declined to decide whether coalitional claims are cognizable, but held that, if they are, "there [is] quite obviously a higher-than-usual need for the second of the Gingles showings." 507 U.S. at 41. The Court held that, "when dilution of the power of such an agglomerated political bloc is the basis for an alleged violation, proof of minority political cohesion is all the more essential." Id. Courts that have recognized coalitional claims have required a showing that each group in the coalition is internally cohesive and that each group is cohesive with the others. As the Fifth Circuit explained: [T]he determinative question is whether black- supported candidates receive a majority of the Hispanic 31 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 42 of 65 and Asian vote; whether Hispanic-supported candidates receive a majority of the black and Asian vote; and whether Asian-supported candidates receive a majority of the black and Hispanic vote in most instances in the [relevant] area. Brewer v. Ham, 876 F.2d 448, 453 (5th Cir. 1989). This is the only plausible standard. Any other approach would undermine the coalitional theory that members of each group in the coalition suffer dilution of their own votes. To aggregate groups is to attribute preferences of one to the others, thereby assuming the cohesion conclusion that must be proven. Aggregation also creates an unacceptable risk, even a likelihood, that the coalition is not a coalition at all, but rather a large amalgamation of different, dissimilar groups the preferences of whose larger elements are improperly attributed to the smaller elements. See Bernard Grofman, Voting Rights in a Multi-Ethnic World, 13 Chicano-Latino L. Rev. 15, 23 (1993). Only by requiring proof that each alleged group of the putative coalition satisfies the Section 2 standard independently, as well as with the other alleged groups, can a court justify a finding that a coalition even exists. Other precedents hold that cohesion must be established for each group in an alleged coalition. See, e.g., Concerned Citizens of Hardee Cnty., 906 F.2d at 526- 527 (rejecting coalitional claim where plaintiffs failed to prove cohesion between Black and Hispanic groups in the coalition); Campos, 840 F.2d at 1245 ("[I]f one part of the group cannot be expected to vote with the other part, the combination is not cohesive."); Badillo, 956 F.2d at 891 (district court "found that plaintiffs' testimony...failed to prove that blacks and Hispanics were politically cohesive, either when combined or when considered separately"); Huot, 280 F. Supp. 3d 32 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 43 of 65 at 235-36 (requiring plaintiffs to show cohesive coalition among the member groups in the coalition). It is undisputed that Plaintiffs failed under this test. Their expert did not separately estimate candidate-preference levels for each constituent group. Plaintiffs' expert lumped all groups into an "All Minority" category and reported estimates of voting behavior attributed to that entire aggregate group. These aggregate datapoints prove nothing about the preferences of the three constituent groups, leaving Plaintiffs unable to show that a majority of Asian and Hispanic voters prefer the same candidates, and that those are the same candidates preferred by Black voters. The district court found a Section 2 violation only by applying a relaxed standard at the liability phase and effectively rejected Brewer's standard in its final order. a. Plaintiffs' Liability-Stage Failure A central evidentiary problem is that, due to the small size and geographic dispersion of the City's Hispanic and Asian communities, the statistical techniques employed in this case cannot estimate the Hispanic and Asian communities' respective voting patterns. See, e.g., JA0439 (Dr. Spencer); SJA284 (Dr. Grofman). Plaintiffs' expert, Dr. Spencer, attempted to bypass this problem by creating an aggregate "All Minority" estimate and performed his statistical analysis on that aggregate number, along with the Black community alone (which is large enough to individually estimate). Where Dr. Spencer saw high 33 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 44 of 65 levels of this aggregate group support the same candidate, he viewed this as evidence of cohesion. The problem with lumping the three distinct minority groups together is revealed by Dr. Spencer's own analysis, which improperly attributes Black voting preferences to Asians and Hispanics. His estimates of Black voting preferences were consistently higher (i.e., more cohesive) than the "All Minority" numbers. Consider the 2016 Kempsville race, where Dr. Spencer estimated Black support for candidate Ross-Hammond at 76.8% and "All Minority" support at 59.9%. JA0457-58; JA1565. Using algebra and the relative sizes of Virginia Beach's Black, Hispanic, and Asian communities, Defendants' expert estimated only 34.3% of the Asian and Hispanic component of the "All Minority" number supported Ross-Hammond. JA2271. Dr. Spencer did not dispute this calculation, JA0467, and conceded it was possible this meant the coalition is not cohesive. JA0468. And, whether or not that estimate is probative, it is indisputable that voting choices of Asians or Hispanics (or both) dragged the average down. This phenomenon existed across the board. These are the races involving a Black candidate that the district court relied on (JA1218-21) and Dr. Spencer's estimated support for the Black candidate: 34 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 45 of 65 Contest/ All Minority' Black Asian Hispanic Measured Candidate Support for Support for Support Support Candidate' Candidate' (?) (?) 2008 At-Large/Allen 70.5% 86.3% 2010 Princess Anne/ 79.9% 89.9% Bullock 2010 At- 58.2% 85.6% Large/Jackson 2011 Rose Hall/ 64.8% 87.0% Sherrod 2012 Kempsville/Ross- 65.7% 86.9% Hammond 2014 Rose Hall/ 37.0% 51.7% Cabiness 2016 Kempsville/Ross- 59.9% 76.8% Hammond 2018 Centerville/ 85.5% 95.6% Wooten 2018 At-Large/ 31.8% 36.6% Rouse The district court credited each contest as showing "minority cohesive voting," JA1221, yet in each, Black support substantially exceeded "All Minority" support—by more than 10% in eight and more than 20% in three.10 Because the estimated "All Minority" support includes estimated Black support, the true support of the Asian or Hispanic communities—or both—must fall below the ' Combined Black, Asian, Hispanic and other races. s Using Ecological Inference. ' Using Ecological Inference. 1° The court's treating the 2014 Rose Hall and 2018 At-Large races as evidence of cohesion only underscored its erroneous view of cohesion. 35 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 46 of 65 "All Minority" figure reported. And, because the Black community is much larger than the Asian and Hispanic Asian communities, the true Asian or Hispanic support (or both) must be far below the All Minority average. Further, there is no way to know whether the Asian and Hispanic groups are internally cohesive. The above-stated estimates are consistent with the Asian or Hispanic communities, or both, having no consistent pattern of voting for or against the same candidates. There is also no way to assess cohesion between members of the Hispanic and Asian contingencies. Because Black voters significantly outnumber Asian and Hispanic voters, a wide range of outcomes is consistent with Dr. Spencer's estimates. b. The District Court's Liability Opinion Makes Mathematically Impossible Assumptions i. The district court's liability opinion did not address Brewer and, instead, "twisted the burden of proof beyond recognition." Abbott v. Perez, 138 S. Ct. 2305, 2333 (2018). It opined that Defendants' expert was not properly qualified to opine on "quantitative statistical methods," JA1228, and that he "cannot disprove that Hispanics, Asians, and Blacks vote cohesively." JA1229 (emphasis added). But "plaintiffs must prove" cohesion. Growe, 507 U.S. at 42 (citation omitted). It was error to require Defendants to disprove it. What matters is that cohesion was not proven. The district court acknowledged that relying on a single aggregate "All Minority" point estimate means that "high Black support for a given candidate could mask far lower support—or even opposition—from Asian and Hispanic voters." JA1227. Dr. 36 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 47 of 65 Spencer, too, admitted that this scenario is "one possible explanation" for his estimates. JA0377. Plaintiffs' expert Dr. Allan Lichtman likewise conceded that "we don't have information...on the individual behavior of" the Asian and Hispanic groups, and "[bleyond that, we can't go." JA1910. All of this admitted that Plaintiffs' elaborate presentation fall short of proving cohesion, which is what the law requires. Growe, 507 U.S. at 42 (citation omitted). ii. The district court also rewrote the standard of cohesion, concluding that less than majority support from minority voters can prove cohesion. JA1230. As an initial matter, that is beside the point, because Plaintiffs proved nothing about Hispanic and Asian support levels. Whether 50% support was required, or something lower would suffice, is an academic question. And the district court was legally wrong. This Court explained in Levy v. Lexington County, 589 F.3d 708 (4th Cir. 2009), that the failure of an alleged minority-preferred candidate to achieve "50 percent of the minority vote" would "demonstrate a lack of political cohesiveness." Id. at 720 n.18. That stands to reason: if more members of a group oppose the candidate than support that candidate, then the group cannot plausibly be called cohesive around that candidate. See Levy v. Lexington Cnty., Sch. Dist. Three Bd. of Trustees, 2012 WL 1229511, at*3 (D.S.C. Apr. 12, 2012), as amended(Apr. 18, 2012). And,because even bare-majority support is hardly probative of cohesion, courts usually apply a 60% standard. Rodriguez v. Pataki, 308 F. Supp. 2d 346, 388-90 (S.D.N.Y. 2004); Smith v. Bd. of Supervisors, 801 F. Supp. 1513, 1522 n.11 (E.D. Va. 1992), rev'd on other grounds, Smith v. Bd. of Supervisors, 984 F.2d 1393 (4th Cir. 1993). 37 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 48 of 65 The district court founded its contrary view on Lewis v. Alamance County, 99 F.3d 600, 613 n.10 (4th Cir. 1996), but the relevant portion of that decision addressed the third Gingles precondition, "whether minority-preferred candidates are `usually' defeated" by white bloc voting (often called "polarization"). Id. at 608. As Levy explains, a candidate may receive less than 50% of the minority vote in a multi-candidate race to be the "candidate of choice" under the third precondition, 589 F.3d at 716-18, but less than 50% support cuts against cohesion under the second precondition, id. at 720 n.18. Cohesion (Gingles two) and polarization(Gingles three) are distinct. See id. at 720 (faulting a district court for failing to "recognize[] this distinction"). "For example, the black population of a district may vote in a racially polarized manner [for purposes of Gingles three] so as to overwhelmingly favor black candidates, but the group may lack political cohesion [for purposes of Gingles two] if it splits its vote among several different black candidates for the same office." Monroe v. City of Woodville, 881 F.2d 1327, 1331 (5th Cir. 1989), as corrected, 897 F.2d 763 (5th Cir. 1990). Nothing less than 50%, if not 60%, proven support would be evidence of cohesion; anything less would be evidence against cohesion. iii. Next, the district court tried to transform Plaintiffs' legal failing into a fact issue by crediting Plaintiffs' expert's effort "to address his own limitations." JA1230. The district court "recognize[d] that Plaintiffs' methodology for estimating voter cohesion among Minority Community is limited" but did "not find that the methodology is flawed." JA1231. But, flawed 38 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 49 of 65 or not, the methodology's limits are dispositive because they leave the method unable to prove coalitional cohesion. Put simply, those limits left the court unable to identify a single estimate of Asian or Hispanic preference for any candidate in any race. Because Plaintiffs had to prove that each constituency is internally cohesive standing alone, no amount of explaining away arithmetic, even if creditable, could overcome the absence of estimates. That problem is especially glaring when two parts of the purported tripartite coalition are total unknowns. Even assuming All Minority support were shown to match Black support, this would not show cohesion of the Asian or Hispanic communities: Asian support could be vanishingly small if Hispanic support is strong (or vice versa). This failing is all the more glaring given that this Court has expressed skepticism of statistical estimation methods used by Dr. Spencer even for single-race claims, see Lewis, 99 F.3d at 604 n.3, and given that Dr. Spencer grouped all non-white persons into his "All Minority" category, including Native Americans and others not alleged to belong to the tripartite coalition and whose impact on the analysis is unknown. iv. Dr. Spencer's effort to "address his own limitations" did not overcome them. The district court credited a bizarre improvisational courtroom session where, on an easel, Dr. Spencer scrawled a new expert report consisting of scribbled lines. JA2307. This last-ditch attempt only further undermined his case. Dr. Spencer performed his original statistical analysis using three methods—Ecological Regression (ER), Ecological Inference (EI), and 39 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 50 of 65 Homogeneous Precinct Analysis (HP). At trial, he challenged for the first time the assumption of linearity underlying his own ER datapoints, testifying that ER "requires you to draw a straight line through the data" but that "it could be the case that the actual support" levels might involve a "deviation from linearness." JA0380-81. Dr. Spencer described through the scribbled charts three possibilities—one preserving the linearity assumption and two that challenged the assumption underlying his analysis. JA2307. For two of those possibilities, Dr. Spencer conceded that where "All Minority" support levels were lower than Black-only support levels, it meant Asian and Hispanic voters supported candidates at lower rates than Black voters. JA0380 (first); JA0382 (third). In the final possibility, Dr. Spencer posited that his own estimated "All Minority" support levels might be understated and, in fact, "All Minority" support could be higher than Black support. JA0381. Stated differently, Dr. Spencer testified that his ER datapoints might be wrong and then made the assumption that that error worked in Plaintiffs' favor. The problems here are obvious. First, Dr. Spencer still could not proffer an estimate of Asian or Hispanic voting preferences for even a single election. That failing alone renders the episode, whatever its academic value, irrelevant. Moreover, crediting this untested methodology was clear error. As shown, Dr. Spencer's improvised abandonment of linearity would yield three possible outcomes, and two cut against "Minority" cohesion. Dr. Spencer's choice to prefer the third was arbitrary—he based it on his own "eyeball test[]" and a position that his ER estimates might be understated because the data did not fit 40 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 51 of 65 his straight-line model but rather featured a "scooping," curvilinear shape. JA0381; JA0383; JA0390; JA0392. But, because the ER method is bound by the assumption of linearity, as Dr. Spencer admitted, JA0380, abandoning that assumption calls all of his estimates into question—including the estimate of Black cohesion. JA1040. Yet another problem is that Dr. Spencer's attack on his own estimates applied only to ER. JA0380. But (as noted) Dr. Spencer also used EI, which resolves the very problem he sought to cure because it is not bound by an assumption of linearity and thus accounted for non-linear possibilities. See, e.g., United States v. City of Eastpointe, 378 F. Supp. 3d 589, 597 (E.D. Mich. 2019) ("But unlike ecological regression, ecological inference does not rely on an assumption of linearity and instead incorporates `maximum likelihood statistics' and the `bounds method' to produce estimates of voting patterns by race." (underlining added)); Cisneros v. Pasadena Indep. Sch. Dist., 2014 WL 1668500, at *10 (S.D. Tex. Apr. 25, 2014) (same); Alabama NAACP v. Alabama, 2020 WL 583803, at *30 (M.D. Ala. Feb. 5, 2020) (same); Rodriguez v. Harris Cnty., 964 F. Supp. 2d 686, 759 (S.D. Tex. 2013) (same). All the estimates shown in the table above are EI estimates; all show All Minority support lagging behind Black support; and none is even touched by the district court's statement on "non- linear `LOESS' curves.'" JA1230. 41 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 52 of 65 c. The Remedial Record Undermines the Liability Ruling i. The remedial record confirmed Plaintiffs' failure to establish coalitional cohesion. Dr. Grofman's report determined that it is impossible to estimate voting patterns of the Asian and Hispanic communities in Virginia Beach. Dr. Grofman devoted Appendix B of his report to explaining why he regards "it as essentially mathematically impossible, given the data limitations in this case, to reliably estimate voting behavior for each [racial] group separately." SJA284-85. He concluded that he could not "regard any inferences about how the three minority groups voted as individual groups, whether made by an expert for Plaintiffs or an expert for Defendants, to be sufficiently well supported for me to make any use of them in my own analyses." Id. Dr. Spencer's ruminations about "linearity" were exposed yet again as bald speculation, were that not already obvious. To be sure, Dr. Grofman opined that the "All Minority" group combined exhibits cohesion, but, as explained, that type of analysis is insufficient. Dr. Grofman used the "All Minority" number only because (1) he (mistakenly) thought that a combined Black-Asian-Hispanic coalition was the "voting rights group which brought this lawsuit," (2) it was the "voting group whose voting behavior [the court] asked" him to analyze, (3) it was the only "voting rights community" large and compact enough to meet the 50% CVAP test for a Section 2 claim, and (4) because he did "not believe that it is statistically possible to 42 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 53 of 65 determine the voting behavior of African-American, Asian-American, and Hispanic populations individually." SJA235. ii. The district court should have dissolved its injunction as any further reliance on mathematically impossible assumptions became untenable. That is the result contemplated by Wright v. Sumter Cnty. Bd. of Elections & Registration, 979 F.3d 1282 (11th Cir. 2020)—which Plaintiffs cited as the justification for holding the City's appeal in abeyance pending final judgment. Wright held that remedial-phase evidence bears upon the question of liability in a Section 2 case, since "the issue of remedy is part of the plaintiffs prima facie case" and the court's "inquiries into remedy and liability cannot be separated." Id. at 1302-03 (citations omitted). This principle means that remedial proceedings may either bolster or undermine the liability ruling, depending on how the remedial record develops. Id. (discussing Dillard v. Baldwin Cnty. Commr's, 376 F.3d 1260, 1266 (11th Cir. 2004), where a district court was "precluded from finding an ongoing section 2 violation" because the remedial record undermined its liability finding)). Because the remedial record revealed that the liability decision depended on "mathematically impossible" assumptions, the district court was duty bound to vacate it. But the district court doubled down. The court effectively rejected the standard recognized in Brewer by expressly relieving Plaintiffs of the burden to prove cohesion as to each constituent group of the alleged coalition. SJA359-63. The court concluded that Brewer did not mean what it said when it set that requirement. Id. The district court pointed to language in Brewer reaffirming that, 43 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 54 of 65 in the Fifth Circuit, "minority groups may be aggregated" for Section 2 claims. Id. (quoting Brewer, 876 F.2d at 453). But this language in Brewer referred to the legal viability of coalitional claims, not to the standard of proof for cohesion. See Brewer, 876 F.2d at 453. Brewer made clear that the "determinative" cohesion question turns on evidence of each group separately and all groups together. Id. Despite that, the district court asserted that it conducted the "very inquiry" called for by Brewer. SJA362-63. Clearly, it did not. The district court also credited Dr. Grofman's conclusion that the aggregated "All Minority" group is cohesive, but Dr. Grofman offered that conclusion based on the court's flawed legal premise that disaggregation is unnecessary. Dr. Grofman's conclusion on "All Minority" cohesion "taken together," SJA362, is no different from concluding that Republicans and Democrats are cohesive around Democratic candidates in Cleveland or Republican candidates in rural Alabama because taken together voters in these regions exhibit these preferences. That logic fails here for the same reason it fails there. 2. Qualitative Evidence Disproved Cohesion Tellingly, the district court expressed little confidence in the expert estimates of voting behavior and instead commenced its discussion of cohesion with "qualitative evidence." JA1211. This discussion, too, was legally and factually erroneous. The only evidence at trial of shared political advocacy related to a 20-year- old effort to support residency-based districts for City Council. The court 44 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 55 of 65 credited testimony by Ron Villanueva and Nonato Abrajano, both of Filipino descent, during a 2001 public hearing that they supported district-based elections, JA1275 (citing JA1290-96), but ignored contemporaneous testimony by the same witnesses clearly limiting that political cooperation, JA 1292-93 (Villanueva and Abrajano stating that this was the "first time" the minority communities came together with a political proposal); JA0853-54 (Abrajano testifying that the Filipino-American Community Action Group did not support either of the Black candidates in the 2002 at-large City Council race). This testimony is consistent with Plaintiff Georgia Allen's testimony that these moments of joint advocacy were fleeting, related to a "specific issue," and then the groups would "disperse and go about our business." JA0190-91. All other examples of "cohesion" the court identified were testimony by members of the Black community about general efforts to support minority communities. An exchange between the court and Plaintiffs' witness reveals the lack of anything suggesting voting cohesion: THE COURT: During your 30 years, has there been a consistent interaction between African-Americans, Filipinos, and Asians with respect to matters of interest to the groups? THE WITNESS: I only know about the economic one that is a consistent one, in terms of asking for more equity as far as contracts are concerned, because that's what my business was. JA0579. 45 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 56 of 65 The district court cited not one item of qualitative evidence suggesting that large numbers of Asian, Hispanic, and Black voters "prefer certain candidates whom they could elect in a single-member, [HBA] majority district." Gingles, 478 U.S. at 68. In fact, the evidence overtly undercut any such fmding. All qualitative testimony on voting patterns, lay and expert, was to the effect that the large Filipino community "has historically been more conservative/ Republican in its orientation." JA1003; JA2269-70; JA2293-94. All Asian and Hispanic witnesses at trial testified that members of the largest Asian population in Virginia Beach—the Filipino community—were decidedly conservative. JA0322 (Del. Fowler testifying that Filipino-Americans voted Republican and any vote for her—a Democrat—would be a "crossover" vote). The court's reference to "shared political advocacy," even if it existed, has no logical relation to vote dilution in an at-large system, which turns on lack of "ability to elect representatives of...choice." Gingles, 478 U.S. at 51. None of the evidence the court cited establishes that "a significant number of minority group members usually vote for the same candidates." Levy, 589 F.3d at 719-20. Just as "courts should not hastily assume that cooperation among minority groups in filing a Section 2 complaint will inevitably lead to a fmding of political cohesion in their actual electoral practices," Brewer, 876 F.2d at 454, they should not assume that groups that do not cooperate to file a Section 2 complaint, but may arguably engage in some common political activism, vote for the same candidates—especially when direct testimony is to the contrary. The question remains whether the groups "vote together," and evidence of that must be shown 46 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 57 of 65 "by some sort of reliable" means. Id. (citation omitted). Because that was not proven, the claim should have been rejected. C. The District Court Erred on the Third Gingles Precondition The third Gingles precondition requires a Section 2 plaintiff to prove that the "bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group." Gingles, 478 U.S. at 49. The district court's findings reveal this standard to be unmet. It concluded: "50% of the minority-preferred candidates have lost City Council elections between 2008-2018 due to white bloc voting." JA1232. A 50-50 split does not show that white bloc voting "usually" defeats the minority-preferred candidate, as this Court opined in Lewis, 99 F.3d at 616 (stating that "a court would ineluctably find" failure on this element in "circumstances" where "minority- preferred candidates were successful fifty percent of the time"); see also Cottier v. City of Martin, 604 F.3d 553, 560 (8th Cir. 2010) (en banc); Clay v. Bd. of Educ., 90 F.3d 1357, 1362 (8th Cir. 1996). The district court erred in concluding otherwise. First, it discounted races where white candidates were found to be minority preferred, JA 1232,11 but this Court rejected that precise argument in Lewis, 99 F.3d at 607 ("[T]he minority- preferred candidate may be either a minority or a non-minority...."). This error was particularly pronounced, and prejudicial, because the court considered the same races in finding cohesion, JA1222, thereby considering successful white 11 Dr. Grofman's report makes the same legal error. SJA233-34. 47 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 58 of 65 candidates where it helped Plaintiffs' case and ignoring them where it harmed that case. See, e.g., John Allan Co. v. Craig Allen Co. LLC, 540 F.3d 1133, 1139 (10th Cir. 2008) ("['Internally inconsistent findings constitute clear error.") Second, the district court discounted the two 2018 races where Black candidates prevailed, positing that these reflected "special circumstances because" they occurred "after the instant lawsuit was filed." JA1232. But there is no rule that post-filing elections are irrelevant. Rather, this Court has held that a "court should probe further to determine whether" post-filing success "resulted from unusual circumstances." Collins v. City of Norfolk, 816 F.2d 932, 938 (4th Cir. 1987). In Collins, for instance, the Court opined that it might have been relevant that the mayor, who had never before supported a Black candidate, supported a Black candidate in a post-filing contest and stated publicly: "After the election, the issue of black representation may become a moot point." Id. Even then, the statement was "not dispositive"; rather a "proper inquiry must examine the result of the mayor's conduct and statement." Id. Here, nothing connects the pendency of this lawsuit to the 2018 success of the two Black candidates, and the district court identified no such connection. There was, at that time, no coalitional claim, the case had been floundering in the wrong court and was beleaguered by aimless motions practice, and there is no evidence that it attracted any meaningful amount of attention in the City. The district court, however, concluded that "abnormally large support from white voters" for the 2018 Black candidates constituted a special circumstance. JA1232. But there is nothing suspicious about white voters supporting Black 48 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 59 of 65 candidates. Absent a showing that the lawsuit caused this crossover voting, white support for Black candidates cuts against Plaintiffs on the third precondition and cannot alone establish a special circumstance. D. Plaintiffs' Claim Fails Under the Totality of the Circumstances "The ultimate determination of vote dilution under the Voting Rights Act...must be made on the basis of the `totality of the circumstances.' Lewis, 99 F.3d at 604 (edit marks omitted). To make this assessment, courts consider various factors, including the so-called Senate factors and those the Supreme Court has added. Cane v. Worcester Cnty., 35 F.3d 921, 925 (4th Cir. 1994). The district court's analysis at this stage was erroneous. 1. The district court's analysis of what it called "the deferential DeGrandy fourth factor," JA1236, repeated its errors on the third Gingles preconditions. Johnson v. De Grandy, 512 U.S. 997 (1994), held that the existence of majority-minority districts roughly proportional to the minority group's overall percentage in a jurisdiction cuts heavily against a claim for more majority-minority districts. Id. at 1009-24. In challenges to at-large systems, courts have applied this rule by assessing whether minority-preferred candidates have held seats in rough proportion to the minority group's percentage of the population. See, e.g., Solomon v. Liberty Cnty. Comm'rs, 166 F.3d 1135, 1143 (11th Cir. 1999); United States v. Euclid City Sch. Bd., 632 F. Supp. 2d 740, 753 (N.D. Ohio 2009). Here, the district court's findings established that proportionality, establishing that two of ten seats are held by minority-preferred candidates and that numerous minority-preferred candidates have, in the past, prevailed. The 49 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 60 of 65 district court concluded otherwise only because it had already discounted those results in evaluating the third Gingles precondition. JA1236-37. Because that discounting was erroneous, so too was the Court's De Grandy analysis. 2. The district court erred in failing to analyze each of the totality factors as to each of the coalitional constituencies. Just as proof of cohesion is "all the more essential" when "dilution of the power of...an agglomerated political bloc is the basis for an alleged violation," Growe, 507 U.S. at 41, a unique totality inquiry, analyzing each constituency on each factor, is essential. But here, the district court relied overwhelmingly on facts concerning the Black community and attributed those facts to all "Minority" residents of the City. This injected "impermissible racial stereotypes" into the analysis, Shaw, 509 U.S. at 647, as the district court, in effect, assumed any disadvantage suffered by any racial minority group amounted to disadvantage suffered by anyone who is not white. Only "a searching practical evaluation of the 'past and present reality,"' Gingles, 478 U.S. at 75, concerning each disparate group could yield the conclusion that a coalition suffers a shared disadvantage. The correct analysis would have changed the outcome. The district court concluded that Plaintiffs "provided sufficient evidence to show that each factor is met," JA1238, but only because it found facts concerning the Black community under each rubric. It did not find facts as to the Asian community under each factor, nor could it have. For example, in considering "consequences of official past and ongoing discrimination," the court identified many ways in which Asians are roughly at or above the socioeconomic status of whites, 50 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 61 of 65 including that "Asian students perform at the same, or higher, rate compared to white students," that Asian high-school graduation rates are comparable to white rates, JA1249, that more Asian students graduate college than white students, JA1250, that Asian household income exceeds white household income, JA1251, and that white and Asian home-ownership rates are almost identical. JA1252. In considering minority-candidate success, another senate factor, the court identified one Asian-American elected to the City Council and did not identify a single Asian-American who lost any Virginia Beach race. JA1262. In considering responsiveness of elected officials, the court found that "the City had overutilized Asian-American owned business." JA1268 (emphasis added). And, even on the question of past discrimination, the Court cited no evidence of discrimination against Asians of any stripe, only "racial segregation of whites and Blacks." JA1238-43. The Court need not conduct its own totality-of-the-circumstances analysis to see that, had the district court applied the correct legal standard, it could not possibly have found that each factor is met. JA1238. Few, if any, were. This error of law infected the analysis, which cannot stand under the correct inquiry. III. The District Court's Obey-the-Law Injunction Is Improper and Unenforceable The district court erred in issuing vague injunctions that the City "comply with Section 2 of the Voting Rights [A]ct" and abstain from "any practice, policy, procedure or other action that results in the dilution of minority participation in the electoral process." JA1277. An injunction must "describe in 51 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 62 of 65 reasonable detail...the act or acts restrained or required." Fed. R. Civ. P. 65(d)(1)(C). This is because "[t]he judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one." Intl Longshoremen's Ass'n, Loc. 1291 v. Phila. Marine Trade Ass'n, 389 U.S. 64, 76 (1967). Courts therefore have "held repeatedly that 'obey the law' injunctions are unenforceable." Fla. Ass'n of Rehab. Facilities, Inc. v. State of Fla. Dep't of Health &Rehab. Servs., 225 F.3d 1208, 1222 (11th Cir. 2000) (citation omitted); see also Burton v. City ofBelle Glade, 178 F.3d 1175, 1200 (11th Cir. 1999) (rejecting injunction which prohibited municipality from discriminating on the basis of race in its annexation decisions). And the problem here is not merely that the district court's injunction duplicates the City's obligations under Section 2, but also that Section 2 is a notoriously convoluted statute, applicable to all the City's election mechanisms (including those imposed on it by the General Assembly), and requires no showing of discriminatory intent. The City has minimal advanced means of knowing when the injunction is violated, and when contempt might be triggered. See EEOC v. AutoZone, Inc., 707 F.3d 824, 841-42 (7th Cir. 2013); SEC v. Goble, 682 F.3d 934, 950 (11th Cir. 2012). Worse, the injunction is not limited to "the violation established in the litigation or similar conduct reasonably related to the violation." AutoZone, 707 F.3d at 841. If the City re-precincts, or enforces a state- imposed voter-identification law later found to violate Section 2, it could be subject to staggering contempt penalties. The injunction is unlawful and must be vacated. 52 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 63 of 65 CONCLUSION The injunction should be vacated, and the case remanded with instructions that this case be dismissed or, alternatively, that judgment be entered for Defendants. REQUEST FOR ORAL ARGUMENT The City requests oral argument. Dated: January 14, 2022 Respectfully submitted, /s/ Katherine L. McKnight Mark D. Stiles Katherine L. McKnight Virginia Beach City Attorney Richard B. Raile Christopher S. Boynton BAKER& HOSTETLER LLP Deputy City Attorney 1050 Connecticut Ave., N.W., Gerald L. Harris Suite 1100 Senior City Attorney Washington, D.C. 20036 Joseph M. Kurt T: (202) 861-1618 Assistant City Attorney F: (202) 861-1783 OFFICE OF THE CITY ATTORNEY kmcknight@bakerlaw.com Municipal Center, Building One, Room 260 Patrick T. Lewis 2401 Courthouse Drive BAKER&HOSTETLER LLP Virginia Beach, Virginia 23456 Key Tower, 127 Public Square Suite 2000 Erika Dackin Prouty Cleveland, OH 44114 BAKER& HOSTETLER LLP 200 Civic Center Drive Suite 1200 Columbus, OH 43215 Attorneys for Defendants-Appellants 53 USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 64 of 65 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P ("Rule") 32(a)(7)(B)because it contains 12,980 words, excluding the parts of the brief exempted by Rule 32(f). This brief complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14- point Calisto MT typeface. Dated: January 14, 2022 /s/ Katherine L. McKnight Katherine L. McKnight Counsel for Defendants-Appellants USCA4 Appeal: 21-1533 Doc: 53-1 Filed: 01/14/2022 Pg: 65 of 65 CERTIFICATE OF SERVICE I certify that on January 14, 2022, the foregoing document was served on all parties or their counsel of record through the CM/ECF system. Dated: January 14, 2022 /s/ Katherine L. McKnight Katherine L. McKnight Counsel for Defendants-Appellants 32 ITEM— V.J.4 ORDINANCES/RESOLUTIONS ITEM#72434 The following registered to speak: Barbara Messner, P. O. Box 514, spoke in OPPOSITION Melissa Lukeson, 1884 Wolfsnare Road, Phone: 289-9003, spoke in SUPPORT Upon motion by Council Member Rouse, seconded by Council Member Moss, City Council ADOPTED Ordinance to TRANSFER $60,000 from the General Fund City Council Emergent Needs Reserve to the FY 2021-22 Communications Office Operating Budget for Public Outreach re the City's election system and new districts(Requested by Council Member Rouse) Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 REQUESTED BY COUNCILMEMBER ROUSE 1 AN ORDINANCE TO TRANSFER $60,000 FOR PUBLIC 2 OUTREACH REGARDING THE CITY'S ELECTION SYSTEM 3 AND NEW DISTRICTS 4 5 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 6 VIRGINIA, THAT: 7 8 $60,000 is hereby transferred from the General Fund City Council Emergent Needs 9 Reserve to the FY 2021-22 Operating Budget of the Communications Office for the 10 purpose of notifying citizens of changes to the City's election system and new districts 11 including direct mailings to households noting the applicable district. Adopted by the Council of the City of Virginia Beach, Virginia on the 18 t h day Of January , 2022. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: hr udget & M nagement Services it or y's ice CA15681 R-1 January 12, 2022 33 ITEM— V.J.5 ORDINANCES/RESOLUTIONS ITEM#72435 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council ADOPTED, BY CONSENT, Resolution to AUTHORIZE and DIRECT the City Manager to EXECUTE a Project Participation Agreement between the City of Virginia Beach and the Southside Network Authority Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 1 A RESOLUTION AUTHORIZING AND DIRECTING THE 2 CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY 3 OF VIRGINIA BEACH A PROJECT PARTICIPATION 4 AGREEMENT BETWEEN THE CITY OF VIRGINIA BEACH 5 AND THE SOUTHSIDE NETWORK AUTHORITY 6 7 WHEREAS, the City of Virginia Beach, Virginia (the "City"), is a member jurisdiction 8 of the Southside Network Authority (the "Authority"), together with the Cities of 9 Chesapeake, Norfolk, Portsmouth, and Suffolk, (collectively, the "Member Localities"); and 10 11 WHEREAS, the Board of Directors of the Authority (the "Board") has requested that 12 the City enter a Project Participation Agreement (the "Project Participation Agreement") in 13 order to finance and manage the construction of a 119-mile regional fiber connectivity ring 14 (the "Project"); and 15 16 WHEREAS, there has been presented at this meeting a draft of the Project 17 Participation Agreement, as well as other background information on the Project, which 18 shall be kept with the books and records of the City; and 19 20 WHEREAS, the City desires to proceed with the Project and enter the Project 21 Participation Agreement, under substantially the terms set forth in the draft, concurrently 22 with the other Member Localities and the Authority. 23 24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 25 OF VIRGINIA BEACH, VIRGINIA, AS FOLLOWS: 26 27 1. The Council approves the Project Participation Agreement and authorizes 28 and directs the City Manager to execute the Project Participation Agreement, 29 with such final corrections and amendments as may be necessary and 30 proper, such necessity and propriety being conclusively evidenced by 31 signature of the Project Participation Agreement. Further, the final version of 32 the Project Participation Agreement shall be approved as to form by the 33 Office of the City Attorney. 34 2. The City's appointed Director, or Alternate in the event of her absence or 35 inability to participate, may purchase up to 28 shares in the Project, as 36 provided in the Project Participation Agreement. 37 3. This Resolution shall take effect upon adoption. Adopted by the City Council of the City of Virginia Beach on the 18 t h day of January , 2022. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: -\/ g/ !\ Infor ation Technology City Attorney's Office CA15673/R-1/January 3, 2022 PROJECT PARTICIPATION AGREEMENT SOUTHSIDE NETWORK AUTHORITY SUMMARY OF MATERIAL TERMS PURPOSE: To finance and construct the 119-mile regional fiber connectivity ring, and to set forth the procedures for participation by the member localities and the Authority. PARTIES: The Southside Network Authority, the cities of Chesapeake, Norfolk, Portsmouth, Suffolk, and Virginia Beach WITHDRAWAL: Allowed with contingencies. LIABILITY: Debt of the Authority is not considered debt of any member locality. DUTIES: Southside Network Authority shall: • Maintain overall management responsibility • Establish separate Project Fund • Prepare annual budget and list of assets • Contract for insurance • Establish a Project Committee to perform specific Project-related functions Member Localities shall: • Purchase shares as authorized by its respective City Council o Minimum buy-in of 8 shares at $250,000 per share; initial offering of 20 shares for each locality (total of 100 shares initially) o Any shares not purchased open to purchase by other localities • Cast votes based on established voting percentile • Appoint a representative to the Project Committee • If locality withdraws, comply with conditions Southside Regional Connectivity Ring Project Participation Agreement PROJECT PARTICIPATION AGREEMENT Southside Regional Fiber Connectivity Ring This project participation agreement ("Agreement") is entered as of the 14th day of January, 2022, by and between the Southside Network Authority, a body politic and corporate and a political subdivision of the Commonwealth, whose address is 723 Woodlake Drive, Chesapeake, Virginia 23320 (the "Authority"), the City of Chesapeake, Virginia, a municipal corporation of the Commonwealth, whose address is 306 Cedar Road, Chesapeake, Virginia 23322, the City of Norfolk, Virginia, a municipal corporation of the Commonwealth, whose address is 810 Union Street, Norfolk, Virginia 23510, the City of Portsmouth, Virginia, a municipal corporation of the Commonwealth, whose address is 801 Crawford Street, Portsmouth, Virginia 23704, the City of Suffolk, Virginia, a municipal corporation of the Commonwealth, whose address is 442 West Washington Street, Suffolk, Virginia 23434, and the City of Virginia Beach, Virginia, a municipal corporation of the Commonwealth, whose address is 2401 Courthouse Drive, Virginia Beach,Virginia 23456. Recitals: WHEREAS,the Authority was formed by the Cities of Chesapeake,Norfolk, Portsmouth, Suffolk, and Virginia Beach (the "Member Jurisdictions") under the provisions of the Virginia Wireless Service Authorities Act, Code of Virginia, Chapter 54.1 of Title 15.2 (the "Act") for the purpose of providing or facilitating the provision of qualifying communications services, as provided in the Act and the Articles of Incorporation of the Authority; and WHEREAS,the initial project is as described in Appendix A and as let in SNA-IFB-2021- 01, as constructed in accordance with such contract, as amended, and financing, operations, maintenance, marketing, reconstruction, renovation, extensions, and management thereof; and {00445492.DOCX } 1 Southside Regional Connectivity Ring Project Participation Agreement WHEREAS, the Authority and its Member Jurisdictions wish to set forth their mutual agreements as to the manner of carrying out such activities. ARTICLE I Definitions "Act"means the Virginia Wireless Service Authorities Act, Code of Virginia,Chapter 54.1 of Title 15.2. "Annual Budget"has the meaning given to it in Section 3.2. "Applicable Laws" means all applicable laws,judgments, decrees, injunctions, writs, and orders of any court, arbitrator, or governmental agency or authority and all rules, regulations, orders, interpretations, licenses, and permits of any federal or state governmental body, instrumentality, agency, or authority. A requirement to comply with an Applicable Law shall not prevent the Authority from challenging or disputing, in good faith, the interpretation or applicability of any Applicable Law. "Asset Management Plan" or "AMP" means the running inventory of the purchase price, depreciation status, and probable replacement cost, and long-term planned replacement schedule of the Project's durable capital as set forth in Section 3.3.B. "Authority"means the Southside Network Authority. "Board"means the Board of Directors of the Southside Network Authority. "Bonds"means revenue bonds issued by the Authority in accordance with the Act or other Applicable Laws. "Capital Improvement Program" or "CIP" means the annually-adopted plan of capital improvements necessary to carry out the goals of the Asset Management Plan and the Strategic Plan as set out in Section 5.1. The CIP shall include estimates of costs of facilities and life-cycle {00445492.DOCX } 2 Southside Regional Connectivity Ring Project Participation Agreement costs and the means of financing them for the next ensuing five Fiscal Years as set forth in Section 3.3.A. "Capital Reserve Fund" or"Sinking Fund"has the meaning given to it in Section 2.6.C. "Code of Virginia"means the Code of Virginia, 1950,as amended,or successor provisions of law. "Commonwealth"means the Commonwealth of Virginia. "Consulting Engineer" means an engineer or firm of independent consulting engineers of recognized standing and experienced in the field of broadband and fiber optic engineering and registered to do business in the Commonwealth. "Executive Director" means the chief administrative officer of the Authority, or, if none, the chair of the Board. "Fiscal Year"means the period beginning on July 1 of one year, and ending on June 30 of the next. "Initial Offering"has the meaning given to it in Section 2.3. "In-Kind Contribution" means any real or personal property, including tangible or intangible property or transferrable permits or other rights,that the Board accepts in lieu of a cash payment for Shares under Section 2.3.B. "Notes" means short-term obligations of the Authority, including notes issued in anticipation of the receipt of revenue, grants, or the proceeds of long-term Obligations. "Obligations" means the Notes, Bonds, or other indebtedness of the Authority. "Participating Member" or "Participant" means a member of the Authority that has purchased Shares in the Project under Section 2.3. {00445492.DOCX } 3 Southside Regional Connectivity Ring Project Participation Agreement "Project" means the Southside Regional Connectivity Ring as described in Appendix A, and as let in SNA-IFB-2021-01, as constructed in accordance with such contract, as amended, and financing, operations, maintenance, marketing, reconstruction, renovation, extensions, and management thereof. "Project Committee" means the committee, established pursuant to Section 2.2, that exercises control over the Project as provided in this Agreement. "Reserved Strand"has the meaning given to it in Section 4.4. "Share"has the meaning given to it in Section 2.3. "Soft Costs" means engineering costs, financing costs, and legal costs associated with a construction project. "Staff' means the Executive Director and his or her appointees, as may be provided from time to time,or,where legally permitted, contractors,consultants,or other agents of the Authority. ARTICLE II Acquisition, Construction, and Financing Section 2.1. Construction of Regional Fiber Connectivity Ring. The Authority shall, either through its own forces or contractors, acquire, construct, equip, finance, operate, maintain, market, and manage the Project as provided in this Agreement. Section 2.2. Project Committee. The Authority hereby creates a Project Committee. The Project Committee is hereby delegated the full power of the Board to(i)within funds duly available and budgeted by the Board, organize and manage the acquisition, construction, and equipping of the Project, including but not limited to issuing notice(s) to proceed and negotiating, approving, and disapproving payment applications and change orders,(ii)organize and manage the operation, maintenance, and marketing of the Project, including, within funds duly available and budgeted by the Board, entering such contracts as it deems advisable on behalf of the Authority to carry out {00445492.DOCX } 4 Southside Regional Connectivity Ring Project Participation Agreement these purposes, (iii) obtain all federal, state, and local permits for the Project, and (iv) enter agreements, including indefeasible rights of use or other similar lease and use-sharing arrangements, for the use of the Project. The Project Committee may further delegate the administration of these matters to Staff The Board reserves to itself the functions of(a) setting the budget for the Project Fund, (b) approving the issuance of the Authority's Obligations and the terms thereof, (c) approving acquisition or disposition of interests in real estate, including municipal franchises or master lease agreements for the use of rights of way. However, in all such decisions, the Board shall consider the needs of the Project and give due weight to the recommendation, if any, of the Project Committee. The Project Committee shall consist of one appointee from each Participating Member. Each Participating Member may appoint its own voting member of the Project Committee, who may be,but need not be,one of its appointees to the Board. The Project Committee may establish its own bylaws, which must be approved by the Board before going into effect. The Project Committee is authorized to appoint a chair, vice-chair, and secretary/treasurer, any of whom may be members of the Board or members of Staff but must be a Project Committee appointee. The Project Committee shall transmit its minutes to the Board regularly, but in any event within 10 days after the meeting for which such minutes are taken. In all matters and recommendations to the Board on which the Project Committee acts, the proportional weight of each Participating Member's vote shall be determined by the number of Shares it possesses. Section 2.3. Shares. A. The Board hereby authorizes an Initial Offering of 100 Shares in the Project, to be made on January 14, 2022, or a convenient date and time thereafter, as chosen by the {00445492.DOCX } 5 Southside Regional Connectivity Ring Project Participation Agreement Authority, but not more than three months from January 14, 2022. The Initial Offering contains only one class of Shares, and Shares may only be purchased by Member Jurisdictions. The par value of each Share shall be $250,000. B. In-Kind Contributions to be used by the Authority to complete the Project may, at the Board's discretion, be considered in lieu of cash contributions for the purchase of Shares in the Project. The cash value of this In-Kind Contributions shall be determined by a Consulting Engineer chosen by the Authority using a cost or cost-avoidance basis, in the sole discretion of the Consulting Engineer. The Consulting Engineer shall submit its valuation of the proposed In-Kind Contributions to the Board and the Member Jurisdiction for approval. The In-Kind Contribution shall not occur without the concurrence of both the Board and the Member Jurisdiction. In-Kind Contributions shall become the sole property of the Authority. C. Each Member Jurisdiction shall be offered 20 Shares of the Initial Offering. Shares may be purchased at a par value of$250,000 each, and the minimum buy-in at the initial offering is at least eight (8) Shares. If any Participating Member elects to purchase fewer than 20 Shares, the unpurchased Shares shall be offered at par to the remaining Participating Members within 30 days, who may each purchase an equal number of unpurchased Shares, with this process being repeated until all available Shares have been purchased or retained by the Authority. Within 30 days after purchase, each Participating Member shall either make payment for all Shares or appropriate such funds and enter a legally binding agreement with the Authority, acceptable in form and substance to the Authority, wherein the Authority shall draw down available funds as needed by the Authority until all (obligated or appropriated) funds are expended. {00445492.DOCX } 6 Southside Regional Connectivity Ring Project Participation Agreement D. The Board, upon recommendation of the Project Committee, may issue further Shares to finance further capital expenditures in support of the Project. The sale of such Shares shall be governed by the same method for the sale of Shares and unpurchased Shares utilized for the Initial Offering under this Article II. E. The proportional weight of each Participating Member's vote on the Project Committee shall be determined by the number of Shares it possesses. Section 2.4. Grants. The Authority shall actively seek grant opportunities in support of the goals of the Project. The Participating Members shall not unreasonably withhold or delay their support for any such grant. Unless the grant documents require or restrict use otherwise, grant funds shall be used for the following purposes, in order of priority: (i) to pay current costs of construction, if any; (ii) to defease for savings or redeem outstanding Obligations prorated based on initial debt allocations pursuant to Section 2.5;then(iii)into the Debt Service Reserve Fund, if any, until fully funded; and then(iv) deposited into the Capital Reserve Fund. Section 2.5. Agreement to Finance. A. General Provisions. The Authority may use a combination of cash and debt financing for the initial cost of acquiring, constructing, and equipping the Project and providing working capital for its initial operations by issuance of Shares pursuant to Section 2.3. The Board may,upon recommendation of the Project Committee, issue, from time to time, Obligations of the Authority to provide long-term or short-term financing of costs upon such terms as it may determine to be in the best interest of the Authority and in accordance with law. All debt service payment schedules will be provided to the Member Jurisdictions within 20 days after closing on an issuance of Obligations. {00445492.DOCX } 7 Southside Regional Connectivity Ring Project Participation Agreement B. Obligations to be Debts of Authority Only. All Obligations authorized to be entered by this Agreement or which the Board issues pursuant to this Agreement shall be the obligations of the Authority only, unless also entered by or guaranteed by one or more Participating Members under such terms and conditions as their governing body or bodies might agree. Section 2.6. Cash Reserves. There are three types of cash reserves that may be established for the Project to assure financial health. Outlined below are the descriptions, means of funding, and general balances of each type. The order of precedence of funding, unless varied by applicable financing documents related to Obligations, is as follows: A. Debt Service Reserve Fund—The lenders for the Obligations may require a Debt Service Reserve Fund, generally equal up to the maximum annual debt service payment (principal and interest) for each issuance of Obligations. If required, this amount should be established at the time of the issuance of the Obligations, in consultation with the Authority's financial advisor. The budget shall be set such that there are sufficient revenues each year to pay the debt service for the Fiscal Year. If, however, the revenue is insufficient, then the difference may be withdrawn from the Debt Service Reserve Fund, which shall then be replenished in accordance with the provisions of the documents establishing the Obligations, if so provided, or as part of the annual budgeting process under Article III. B. Operating Reserve Fund—As part of each Fiscal Year's Annual Budget,the Operating Reserve Fund shall be adjusted to contain operating and maintenance expenses in an amount approximating the costs of operations for ninety (90) days, to provide cash flow during transitions, lag time between delivery of service and payment, or other {00445492.DOCX } 8 Southside Regional Connectivity Ring Project Participation Agreement operational shortfalls or unusual events. The ongoing Operating Reserve Fund shall also serve as a revenue stabilization fund during market changes during fiscal years. C. Capital Reserve Fund(Sinking Fund)—A Capital Reserve Fund or Sinking Fund shall be established using the Asset Management Plan and the Capital Improvement Program to fund both capital replacements and future upgrades and expansions of the Project. The approved annual budget shall include funding for not less than 25% of the initial gross construction cost, exclusive of Soft Costs,of the Project based upon the AMP, which shall either be expended to fund future capital improvements in accordance with the CIP. The initial capitalization of the Capital Reserve Fund shall occur over a reasonable budgetary period, in the discretion of the Board,not to exceed seven years in length. Section 2.7. Withdrawal; Transfer of Shares; Impact. A. Withdrawal from Project. A Participating Member may withdraw,in whole or in part, from this Agreement if the following conditions are met: 1. Withdrawal is not prohibited by the terms of any applicable Obligations,nor will it materially impair any existing Obligations,in the reasonable opinion of a qualified independent municipal financial adviser,to be chosen by the Board; and 2. The Participating Member seeking to withdraw has disposed of some or all of its Shares to one or more other Participating Members. The Shares of the withdrawing Participating Member shall be offered to the other Participating Members in the same manner as Shares not purchased in the first round of the Initial Offering under Section 2.2.C. {00445492.DOCX } 9 Southside Regional Connectivity Ring Project Participation Agreement B. Impact of Withdrawal. Upon partial or complete withdrawal, the proportional voting as provided in Section 2.2 and all other matters to be allocated by Share ownership under this Agreement shall be reallocated based upon the new Share ownership. ARTICLE III Annual Budget& Fiscal Policies Section 3.1. Project Fund to be Separate Fund. The Project Fund shall be treated as a fund and budgetary unit separate and apart from the general operating fund or any other project or dedicated fund of the Authority. Section 3.2. Setting the Annual Budget.On or before each January 15 the Authority shall provide to each Participant the Authority's proposed Annual Budget for the next Fiscal Year. The Annual Budget shall consider all anticipating operating costs including,but not necessarily limited to,(i)all direct and indirect costs of operation and maintenance of the Project, (ii)any debt service cost of the Authority, (iii) all major capital expenditures anticipated during the five following Fiscal Years,including reasonable funding of replacements and any desired deposits to the Capital Reserve Fund,(iv)all revenues and fees to be paid by any person under long-term contracts,(v) all revenues and fees anticipated to be paid by any person under short-term contracts, and(vi) special categories of costs and revenues. Section 3.3. Capital Management; Replacement Fund. A. The Authority shall annually adopt, as part of its budget process, a Capital Improvement Program(CIP)for planning of capital improvements and replacements in the following five years.The CIP shall form the basis and provide guidance for the preparation and adoption of the annual capital budget of the Authority. B. The Authority shall keep and maintain,as the basis for the CIP,an inventory of its durable and capital assets,together with an ongoing accounting of depreciation status (00445492.DOCX } 10 Southside Regional Connectivity Ring Project Participation Agreement and anticipated remaining useful life and anticipated replacement cost,to be called its Asset Management Plan(AMP).The depreciation status and probable replacement schedule shall be updated annually as part of the budget process; assets shall be timely added or removed from the AMP upon their acquisition, sale, or disposal. C. The Authority shall budget for the Sinking Fund in each annual budget as provided in Section 2.6.C. Section 3.4. Quarterly Reporting on Budget. Within 30 days after the end of each of the first three quarters of each fiscal year, the Authority will provide each Participating Member with a statement of revenues and expenditures of the Authority for the preceding quarter.The Authority will provide to each Participating Member on or before each August 1 an unaudited report showing the activities and revenues,expenditures,and accounts of the Project Fund,for the preceding Fiscal Year. Section 3.5. Forecasting. To assist the Participating Members in estimating their obligations to or revenues from the Project, the Authority shall develop a policy, which may be amended from time to time, for forecasting its revenues and expenditures over future periods of up to five years beyond the then-current Fiscal Year.The forecast shall be routinely monitored and revised as necessary. The forecast will be distributed annually to Participating Members during the budgetary process for review and consideration prior to Board approval. Section 3.6. Books & Accounts. The Board shall adopt a system of accounts compliant with the standards of the Governmental Accounting Standards Board (GASB) and Applicable Laws,and shall keep an accounting of all property of the Authority and(i)its initial gross purchase price and (ii) its depreciation using uniform, accepted depreciation schedules, as part of the AMP established pursuant to Section 3.3.B. {00445492.DOCX } 11 Southside Regional Connectivity Ring Project Participation Agreement Section 3.7. Fiscal Agent. The Authority may contract with any Member Jurisdiction or regional organization or qualified entity to act as its fiscal agent upon such terms and conditions as the Board and the fiscal agent may agree. Section 3.8. Liability & Insurance. The Authority shall procure and contract for insurance or a lawful policy of self-insurance in its own name or a combination of both insurance and self-insurance to protect itself against liability,damages,and other matters subject to insurance as determined by the Board. Section 3.9. Procurement.No funds shall be spent or expended without a purchase order or contract requiring payment of such funds,or,in the case of a donation of property,or goods and services, a deed or written receipt accepting the donation. Contracts with non-governmental entities shall be governed by the Virginia Public Procurement Act, Code of Virginia, Chapters 43 and 43.1 of Title 2.2, or the Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA), Code of Virginia, Chapter 22.1 of Title 56, as the Project Committee deems appropriate. Section 3.10. Audits. The Authority shall obtain an annual financial audit of its accounts, or may contract with any Member Jurisdiction or regional organization or to cooperatively or jointly contract for an annual financial audit to be completed by a certified public accountant or accounting firm licensed to practice in the Commonwealth of Virginia by December 31 of each year. The audit shall be conducted according to generally accepted auditing and accounting standards or according to the audit specifications and audit program prescribed by the Auditor of Public Accounts. The annual audit shall be transmitted to the chief administrative officer of each Participating Member promptly upon delivery to the Board. ARTICLE IV Revenues and Distributions {00445492.DOCX } 12 Southside Regional Connectivity Ring Project Participation Agreement Section 4.1. Fees for Dark Fiber.The Project Committee shall actively market dark fiber other than Reserved Strands and may enter contracts and agreements for the same upon such terms and conditions as it may approve. The Board shall set guidelines for standard rates for dark fiber, but the Project Committee may deviate from such guidelines for sound business or planning, community development, or economic development reasons, including but not limited to, (i) a request from a Participating Member for preferential treatment for an economic development prospect, (ii) service to neighborhoods, developments, or persons that are unserved, underserved, or served only with uneconomical internet,or(iii)bulk purchase(e.g.,lease to a large institutional user). Section 4.2. Fees and Charges for Lit Fiber. The Project Committee may offer lit fiber services to the public upon approval of the Board,in accordance with the Act, and pursuant to this Section. A. In the event the Authority offers lit services through its own forces or contractors, the rates, fees, and charges at which the Authority's lit fiber services are offered to the public shall be set in accordance with Code of Virginia, Section 15.2- 5431.25. Rates, fees, and charges shall be set by the Board upon recommendation of the Project Committee. B. In conjunction with offering lit services through the Project, including in conjunction with a lease of dark fiber,the Authority may enter a public-private partnership, in accordance with Applicable Laws, under such terms and conditions as the Board shall determine are in the best interest of the Authority and the goals in the Strategic Plan. The rates, fees, and charges shall be set in accordance with the provisions of any public-private partnership governing documents. {00445492.DOCX } 13 Southside Regional Connectivity Ring Project Participation Agreement Section 4.3. Contributions & Distributions. Participating Members shall pay rates, fees, and charges, or receive distributions of net revenues, as follows: A. If, during the budgeting process, the anticipated budget for the next following Fiscal Year indicates a deficit, after funding for all reserves, the Participating Members shall pay to the Authority, paid on a quarterly basis in arrears, rates, fees, and charges proportional to their ownership of Shares. The rates, fees, and charges shall be increased or decreased and reported to the Participating Members quarterly and shall be updated based upon actual costs and payments and as approved by the Board. These rates, fees, and charges are in the nature of a fee for the continuing provision and availability of a service, not a debt, and shall not be construed to be a general obligation within the meaning of the Virginia Constitution,Art. VII § 10. B. If, during the budgeting process, the anticipated budget for the next following Fiscal Year indicates a surplus, after funding for all reserves,the Authority shall distribute, on a quarterly basis, net revenues to the Participating Members proportional to their ownership of Shares pursuant to Sections 2.2 and 2.3. The distributions shall be updated and reported to the Participating Members quarterly and may be updated based upon actual costs and payments. Section 4.4. Reserved Strands. Participating Members shall be entitled to use up to six strand pairs of dark fiber (the "Reserved Strands") for their own internal use without payment of any rate, fee,or charge, except those fees set under Section 4.3.A. The number of strands reserved at different levels of purchase of Shares are: 8 to 14 2 strands (1 pair) 14 to 20 4 strands (2 pairs) {OO445492.DOCX } 14 Southside Regional Connectivity Ring Project Participation Agreement 20+ 6 strands (3 pairs) The Participating Members agree that none will sell, lease, or otherwise offer access to Reserved Strands to third parties commercially at rates below those charged by the Authority for like access. Section 4.5. Penalties. If any Participating Member fails to pay any sum due under this Article within 10 days after its due date, the sum due and payable shall bear interest at the rate set forth in Code of Virginia, Section 2.2-4355;provided,however,that this provision shall not apply in instances where Applicable Laws or the provisions of the documents establishing outstanding Obligations prescribe some other due date or late payment charge. ARTICLE V Operations and Maintenance Section 5.1. Strategic Planning. The Project Committee shall develop and submit to the Board,not more than 12 months after the date of this Agreement, a Strategic Plan for achievement of its goals and for future expansion of the Project.In development of the Strategic Plan,the Project Committee shall consider, without limitation: The economic needs of the region; marketplace demand for its services; the provisions of the Comprehensive Plans and strategic plans of the Participating Members and other jurisdictions in which portions of the Project or its customers might exist or operate; and such other matters as may be relevant to its operations. Considerations in the development of the Strategic Plan shall include those matters designated in Appendix B. Section 5.2. Operating the Regional Connectivity Ring.During the period of acquisition, construction, and immediate post-construction maintenance of the Project, the Project Committee shall procure the services of one or more qualified contractors to inspect, operate, maintain, and market the Project in accordance with this Agreement. These contractors may be procured as part of a public-private partnership arrangement. If, in the opinion of the Project Committee, adequate contractors cannot be obtained,the Board may authorize the Project Committee to carry out some {00445492.DOCX } 15 Southside Regional Connectivity Ring Project Participation Agreement or all these functions with the Authority's own forces. The Project Committee shall ensure that the Project is operated in an efficient and economical manner,considering advances in technology and changes in the needs of the Participating Members and the public, making all necessary and appropriate repairs, replacements, and renewals, consistent with good business and operating practices, in accordance with applicable standards of local, state, and federal law, and in accordance with the provisions of the Strategic Plan and this Agreement. ARTICLE VI Defaults and Remedies Section 6.1. Default by the Authority. The following events are "Events of Default" by the Authority: A. Failure of the Authority to pay principal and interest on any Obligations issued for the Project or obtained by the Authority pursuant to this Agreement when due; B. If the Authority is for any reason rendered incapable of performing any of its material obligations under this Agreement; C. The Authority makes an assignment of all or a substantial portion of its Obligations under this Agreement without the prior consent of all the Participating Members; D. The Authority defaults on any of its material obligations under any agreement pursuant to which any Obligation issued for the Project is obtained by the Authority pursuant to this Agreement and such default is not cured within any applicable cure period; E. Any proceeding is instituted, with the consent or acquiescence of the Authority, for the purpose of effecting a composition between the Authority and its creditors or for the purpose of adjusting the claims of such creditors pursuant to any state {00445492.DOCX } 16 Southside Regional Connectivity Ring Project Participation Agreement or federal statute now or hereafter in effect, if the claims of such creditors are under any circumstances payable from the funds of the Authority; or F. The Authority defaults in the due and punctual performance of any other of the covenants, conditions, agreements, and provisions contained in this Agreement. Section 6.2. Default by Participating Members. The occurrence of any one or more of the following events shall constitute an"Event of Default"by any Participating Member: A. Failure of any Participating Member to make any payment to the Authority when due and outside any applicable grace period; B. Any Participating Member becomes unable to fulfil its material obligations under this Agreement; C. Any proceeding is instituted, with the consent or acquiescence of any Participating Member, for the purpose of effecting a composition between such Participating Member and its creditors for the purpose of adjusting the claims of such creditors pursuant to any federal or state statute now or hereafter in effect, if the claims of such creditors are under any circumstances payable from the general funds of such Participating Member; or D. Any Participating Member defaults in the due and punctual performance of any other of the covenants, conditions, agreements, and provisions contained in this Agreement. Section 6.3. Remedies of Participating Members. Upon the occurrence of an Event of Default by the Authority and the default continues for thirty (30) days after written notice specifying the default and requiring it to be remedied has been given to the Authority by any Participating Member, any Participating Member, after giving notice of such Event of Default to {00445492.DOCX } 17 Southside Regional Connectivity Ring Project Participation Agreement all parties, may bring suit by mandamus or other appropriate proceeding to require the Authority to perform its duties under the Act and this Agreement or to enjoin any acts in violation of the Act or this Agreement. Section 6.4. Remedies of Authority. Upon the occurrence of an Event of Default by a Participating Member and the default continues for thirty(30) days after written notice specifying the default and requiring it to be remedied has been given to such Participating Member by the Authority or other Participating Member, the Authority, after giving notice of such Event of Default to all parties, may bring suit by mandamus or other appropriate proceeding to require the Participating Member to perform its duties under the Act and this Agreement or to enjoin any acts in violation of the Act or this Agreement. Section 6.5. Remedies Not Exclusive. No remedy in this Agreement conferred upon or reserved to the parties is intended to be exclusive of any other remedy, and each remedy is cumulative and in addition to every other remedy given under this Agreement or now or hereafter existing. Article VII Additional Agreements Section 7.1. Further Documents and Data. The parties to this Agreement will execute and deliver such further documents and perform all other acts that are reasonably necessary to perform the obligations and consummate the transactions contemplated by this Agreement. Section 7.2. Notification. The Authority will promptly furnish to each Participating Member a copy of any notice or order of any governmental authority asserting that the Project is not in compliance in any material respect with any Applicable Law. Section 7.3. Tax-Exemption Covenant; Continuing Disclosure. {00445492.DOCX f 18 Southside Regional Connectivity Ring Project Participation Agreement A. The Authority may issue Obligations in a manner such that the interest thereon is excludable from gross income for income tax purposes under Applicable Laws. The Authority and each Participating Member agree that after an Obligation is issued they will not knowingly take any action or omit to take any action that would intentionally adversely affect such exclusion. B. Pursuant to Section 15c2-12(b) of regulations issued by the U.S. Securities and Exchange Commission, the Authority and the Member Jurisdictions may be required to agree with the owners of Obligations, for as long as such Obligations are outstanding,to supply certain national municipal securities information repositories (i) annually, certain financial and operating information, and (ii) periodically, notification of certain specified material events affecting the Authority, the Participating Members, and such Obligations. The particulars of this ongoing disclosure requirement will be set forth in one or more of an indenture, loan agreement, or continuing disclosure agreement. Each Participating Member agrees to cooperate with the Authority in fulfilling this requirement, including providing the Authority with timely notice of the occurrence of any of the specified events that are material to its operations and hereby authorizes the Authority's Executive Director to execute and deliver any agreement considered necessary or appropriate to evidence such Participating Member's continuing disclosure undertaking. Article VIII Covenants & Guaranties Section 8.1. Covenants of the Authority. The Authority represents, warrants, and covenants as follows: A. Organization, Authorization and Validity. The Authority is a body corporate and politic and a political subdivision of the Commonwealth duly organized and (00445492.DOCX } 19 Southside Regional Connectivity Ring Project Participation Agreement validly existing under the laws of the Commonwealth and has duly authorized, executed, and delivered this Agreement. B. Authority.The Authority has all requisite authority under the Act to execute and deliver and perform its obligations under this Agreement and is not a party to any indenture, contract, or other agreement or arrangement the performance of which by the Authority would prevent or materially and adversely affect the Authority's ability to perform the terms of this Agreement. C. Non-Contravention. The execution and delivery of this Agreement by the Authority and the consummation of the transactions contemplated in it will not conflict with or result in a breach of or constitute a default under or violate any of the terms, conditions or provisions of the Act, the bylaws of the Authority or any material indenture, contract, or other agreement or arrangement to which the Authority is a party or by which any of its properties are bound, or any Applicable Law by which the Authority is bound. D. Litigation. The Authority is not a party to any legal, administrative, arbitration, or other proceeding or controversy pending, or, to the best of the Authority's knowledge, threatened, which would materially adversely affect the Authority's ability to perform its obligations under this Agreement. Section 8.2. Covenants of Participating Members.The Participating Members represent, warrant, and covenant as follows: A. Organization, Authorization, and Validity. Each Participating Member is a political subdivision of the Commonwealth duly organized and validly existing under the laws of the Commonwealth, and each has duly authorized, executed, and delivered this Agreement. {00445492.DOCX } 20 Southside Regional Connectivity Ring Project Participation Agreement B. Authority. Each Participating Member has all requisite authority to execute and deliver and perform its obligations under this Agreement and is not a party to any indenture, contract, or other agreement or arrangement, the performance of which by it would prevent or materially and adversely affect its individual performance under this Agreement. C. Non-Contravention. The execution and delivery of this Agreement by each Participating Member and the consummation of the transactions contemplated in it will not conflict with or result in a breach of or constitute a default under or violate any of the terms, conditions, or provisions of any charter, resolution, or ordinance, any material indenture, contract,or agreement or arrangement to which it is a party or by which any of its properties are bound, or any Applicable Law by which it is bound. D. Litigation. No Participating Member is a party to any legal, administrative, arbitration, or other proceeding or controversy pending, or, to the best of its knowledge, threatened, which would materially and adversely affect its ability to perform under this Agreement. Article IX Miscellaneous Clauses Section 9.1. Severability of Invalid Provisions.If any clause,provision,or section of this Agreement is held to be illegal or invalid by any court, administrative agency, or other governmental authority,the invalidity of the clause,provision,or section will not affect any of the remaining clauses, provisions, or sections, and this Agreement will be construed and enforced as if the illegal or invalid clause, provision, or section has not been contained in it. Section 9.2. Notices. Any notice or other communication under or in connection with this Agreement shall be in writing to the below persons and addresses, or to such other persons {00445492.DOCX } 21 Southside Regional Connectivity Ring Project Participation Agreement and addresses as any Participating Member may from time to time specify in writing. A notice shall be construed to be delivered upon the earliest of(i) execution of a registered mail return receipt by the addressee,(ii)refusal of the mail by the addressee,or(iii)seven days from the notice being deposited in the U.S. Mail, first-class postage prepaid by registered mail, return receipt requested. Notice to: With a copy to: For the Authority: Southside Network Authority Guynn, Waddell, Carroll & Lockaby, P.C. The Regional Building 415 South College Avenue 723 Woodlake Drive Salem,Virginia 24153 Chesapeake, Virginia 23320 Attn: Authority Counsel Attn: Executive Director For the City of Chesapeake: City Manager City Attorney Chesapeake City Hall Chesapeake City Hall 306 Cedar Road 306 Cedar Road Chesapeake, Virginia 23322 Chesapeake, Virginia 23322 For the City of Norfolk: City Manager City Attorney Norfolk City Hall Norfolk City Hall 810 Union Street 810 Union Street Norfolk, Virginia 23510 Norfolk, Virginia 23510 For the City of Portsmouth: City Manager City Attorney Portsmouth City Hall Portsmouth City Hall 801 Crawford Street 801 Crawford Street Portsmouth, Virginia 23704 Portsmouth, Virginia 23704 For the City of Suffolk: City Manager City Attorney Suffolk City Hall Suffolk City Hall {00445492.DOCX } 22 Southside Regional Connectivity Ring Project Participation Agreement 442 W. Washington Street 442 W. Washington Street Suffolk, Virginia 23434 Suffolk, Virginia 23434 For the City of Virginia Beach: City Manager City Attorney City Hall City Hall 2401 Courthouse Drive 2401 Courthouse Drive Virginia Beach, Virginia 23456 Virginia Beach, Virginia 23456 Section 9.3. Execution of Agreement. A sufficient number of copies for each party approving this Agreement, each of which shall be deemed to be an original having identical legal effect, shall be executed by the parties. Section 9.4. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth. Venue for any dispute hereunder shall be in the state and federal courts for the City of Chesapeake, Virginia, or the locality of any future location of the Authority's corporate office. Section 9.5. Amendments. This Agreement may be changed or amended only with the consent of the Authority and each Participating Member. No such change or amendment may be made which will affect adversely the prompt payment when due of all moneys required to be paid by the Participating Members under the terms of this Agreement, and no such change or amendment shall be effective which would cause a violation of any provision of any resolution, indenture, or agreement pursuant to which any Obligation has been issued or obtained by the Authority for the Project. Section 9.6. Waiver. Sufferance of violation of any term of this Agreement, no matter how long continued, shall not operate as a waiver of that term in any future situation. Any waiver by any party of its rights under this Agreement must be in writing,and will not be deemed a waiver with respect to any matter not specifically covered. Nothing in this Agreement authorizes the {00445492.DOCX } 23 Southside Regional Connectivity Ring Project Participation Agreement waiver of any Participating Member's obligation to make payments when due of all moneys required to be paid by the Participating Member under the terms of this Agreement. IN WITNESS WHEREOF, see the following signatures: Signatures on following pages... (00445492.DOCX } 24 Southside Regional Connectivity Ring Project Participation Agreement Southside Network Authority: By: Name: Its: Date: A teste: Secretary, Board of Directors Signatures continue on next page... (00445492.DOCX } 25 Southside Regional Connectivity Ring Project Participation Agreement City of Chesapeake, Virginia: By: Name: Its: Date: A teste: Clerk, City Council Signatures continue on next page... {00445492.DOCX } 26 Southside Regional Connectivity Ring Project Participation Agreement City of Norfolk,Virginia: By: Name: Its: Date: A teste: Clerk, City Council Signatures continue on next page... {00445492.DOCX } 27 Southside Regional Connectivity Ring Project Participation Agreement City of Portsmouth,Virginia: By: Name: Its: Date: A teste: 14\10 Clerk, City Council Signatures continue on next page... (00445492.DOCX } 28 Southside Regional Connectivity Ring Project Participation Agreement City of Suffolk,Virginia: By: Name: Its: Date: A testes Clerk, City Council Signatures c• • - •... {00445492.DOCX } 29 Southside Regional Connectivity Ring Project Participation Agreement City of Virginia Beach,Virginia: By: Name: Its: Date: A teste: Clerk, City Council y b, (00445492.DOCX ) 30 Southside Regional Connectivity Ring Project Participation Agreement Appendix A [To be supplied by A/E] {00445492.DOCX ) 31 Southside Regional Connectivity Ring Project Participation Agreement Appendix B • Reliable and secure backhaul communications connectivity to support the needs of public safety entities and national security institutions. • Availability of dark fiber for internal governmental needs of the Participating Members. • Provide bandwidth to support growing educational needs (e.g., virtual classrooms). • Provide affordable access to underserved and unserved citizens to address the residential Digital Divide. (Affordability/availability of service to low- and moderate-income households and households with poor credit.) • Attract new enterprises with high-paying jobs to the region(i.e., Biomed, cyber security, corporate headquarters, and financial services), and in particular the Participating Members. • Enable strategic partnerships between commercial providers leveraging subsea cables and data centers and anchor institutions such as colleges, universities, hospitals, the Commonwealth of Virginia, and the armed forces. • Expedited service availability or arrangements to benefit economic development prospects or other community development needs. • Provide competitive and non-discriminatory access to middle-mile fiber to promote investment by commercial providers in innovative and competitively priced last-mile broadband services—the Project is not to be used exclusively for the Authority and its members, rather it must be available to facilitate competitive delivery of broadband services on an open access basis. • Expand accessibility to subsea cables and related localized commercial data center infrastructure. • Support broadband needs of business incubators, technology innovators, product accelerators, and data centers. • Foster an ecosystem for low-cost internet service providers to meet demand for affordable internet to address the business Digital Divide. • Expand advanced technology business creation and retain newly educated/skilled workforce. • Such other and further matters as may be reasonably related to the Project. {00445492.DOCX , 32 34 ITEM— V.J.6a ORDINANCES/RESOLUTIONS ITEM#72436 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council ADOPTED, BY CONSENT, Ordinance to AMEND: a. $300,000 from the Landmark Foundation to the FY 2021-22 Public Health Operating Budget and AUTHORIZE grant-supported positions re Baby Care Program Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M.Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE GRANT 2 FUNDS TO THE DEPARTMENT OF PUBLIC HEALTH FOR 3 THE BABY CARE PROGRAM AND TO CONTINUE THE 4 AUTHORIZATION OF GRANT-SUPPORTED POSITIONS 5 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA, THAT: 8 9 $300,000 is hereby accepted from the Landmark Foundation and appropriated,with 10 revenues increased accordingly, to the FY 2021-22 Operating Budget of the Public Health 11 Department for the continuation of the Baby Care Program, and the grant-supported 12 positions for the Baby Care Program, totaling 5.0 FTE, are continued and remain 13 contingent upon future funding of this grant. Adopted by the Council of the City of Virginia Beach, Virginia on the 18 t h day of January , 2022. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: 36ti7jULI Budget and Management Services y A ey's Office CA15672 R-1 January 5, 2022 35 ITEM— V.J.6b ORDINANCES/RESOLUTIONS ITEM#72437 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council ADOPTED, BY CONSENT, Ordinance to AMEND: b. $547,358 from the Virginia Department of Justice to the FY 2021-22 Commonwealth Attorney's Operating Budget and AUTHORIZE 25% in-kind Grant Match by the Commonwealth Attorney's and one (1) grant funded full-time position in Human Services re drug treatment court Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M.Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE GRANT 2 FUNDS TO THE COMMONWEALTH'S ATTORNEY FOR THE 3 DRUG TREATMENT COURT, TO AUTHORIZE A GRANT 4 MATCH, AND TO AUTHORIZE A GRANT-FUNDED 5 POSITION 6 7 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 8 VIRGINIA, THAT: 9 10 1. $547,358 from the United States Department of Justice is hereby accepted and 11 appropriated, with estimated federal revenues increased accordingly, to the FY 2021-22 12 Operating Budget of the Office of the Commonwealth's Attorney for the drug treatment 13 court. 14 15 2. A grant match (25%) is to be made in-kind by the Commonwealth's Attorney through 16 existing appropriations. 17 18 3. One grant-funded Clinician III position (1.0 FTE) is hereby authorized in the Department 19 of Human Services, provided such position is contingent upon future grant funding. Adopted by the Council of the City of Virginia Beach, Virginia on the 18 t h day of January , 2022. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: &1 udget & Management Services tto ey's ffice CA15676 R-1 January 6, 2022 36 ITEM— V.K.1 PLANNING ITEM#72438 The following registered to speak: Eddie Bourdon,Attorney for Applicant, spoke in SUPPORT Barbara Messner, P. O. Box 514, spoke in OPPOSITION Upon motion by Council Member Jones, seconded by Council Member Moss, City Council APPROVED, AS MODIFIED, Application of HUNT CLUB CONDOMINIUM ASSOCIATION, INC. for a Modification of Conditions re increase the number of multi family dwellings by eleven (11)at 120 Loflin Way DISTRICT I (Formerly District 2—Kempsville) BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA HUNT CLUB CONDOMINIUM ASSOCIATION, INC. for a Modification of Conditions re increase the number of multi- family dwellings by eleven (11) at 120 Loftin Way (GPIN 1467337519)DISTRICT 1 (Formerly District 2—Kempsville) This Ordinance shall be effective in accordance with Section 107(f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the 18th day of January Two Thousand Twenty Two. Voting: 9-1 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N. D. "Rocky"Holcomb, Louis R. Jones, Aaron R. Rouse, Guy K. Tower and Sabrina D. Wooten Council Members Voting Nay: John D. Moss Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 cSo2c/tfY ' 4 o,. - rLv _ o �VV��_,'L ' � o a'� 3 o --1 v Q / 00�� 00 01 o V M0 'cce;QCIII: Q � ■ N ti 1 o , a I? 1I' Uieepo i�,c4% ti,, F. iPi_j__ 10 o° >c-- ti i ______,. -4 qiiPi,(1, 471 1 cr, `DC , L--- _ __ i *e4,, ' ''''' 5))•e , _ C � Ii \ 0-.. ' ,.. /*/ ftwcix ,,A . . N7 '&71 �\ o , : d P &\. 'IL : /57), ' &..\.\a, -wb ,° • • I:i 0 /* , ./ /0 tsa / • . , c.) E=r-]% '`D .• 7---_,,...„'0° , -12 c%i W ad _ate ���, ._," '':) 'E) . 'i isr t , . / /LI, /LizicvN i i i ' anT•TmmiWi 417Pg ‘5 I th. --7---------......., Q 0 ,,, 0 0 Z) ,rJ/---, 4 3 — j‘C2 ----- 41° '' �'& L' ,.) cil/ tie" 0 . ' s • 0 a) 0 b -L>c) 63 i . o " 0, cv0 0 Q ,o >, - 0 0 .1(2 ‘‘,0.'+- 'c5811. 0 m __- a3 5 i �j- 41 / 4-ACO :0, t Cr) C 1111 I C Ap Q /// ' -*0 (D c •- �Q1 N_ i �r�/�/- �\ _. CO fI1 -- cNr� � p� 0 _ HUNT CLUB CONDOMINIUM ASSOCIATION, INC.,a Virginia non-stock 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 November, 2021, by and between HUNT CLUB CONDOMINIUM ASSOCIATION, INC.,a Virginia non-stock corporation,Grantor,party of the first part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee,party of the second part. WITNESSETH: WHEREAS, the Grantor is the mandatory membership unit owners association of the Hunt Club Condominium on 11.3 acres in the Kempsville District of the City of Virginia Beach, Virginia which is empowered to operate, manage, administer, maintain, control, add to and improve the condominium's property as described on Exhibit "A" (hereinafter the "Property"); and WHEREAS, the Declaration of Condominium creating the Hunt Club Condominium recorded on October 28, 1987 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2686, at Page 1998 included the creation of those "Convertible Land Areas"designated"PHASE FOUR-AREA= 1.583 ACRES"and"PHASE FIVE-AREA= 2.444 ACRES"as depicted on"Exhibit C-1 PLAT OF HUNT CLUB CONDOMINIUM"recorded in the above referenced Clerk's Office in Deed Book 2686, at Page 2045, , as described on Exhibit "B" (the "Phase Four and Phase Five Land"), upon which three (3) buildings were to be constructed by the Declarant,which were not developed;and WHEREAS, the Grantor, as authorized by its Board of Directors and Members has initiated a conditional amendment to the Zoning Maps of the City of Virginia Beach to modify GPIN: 1467-33-7519-0000 PREPARED BY: S'L B SYKES,BOURDON, Prepared by: AL` £RN&LEVY,P.C. R.Edward Bourdon,Jr.,Esquire VSB#2216o Sykes,Bourdon,Ahern&Levy,P.C. 4429 Bonney Road Suite 500 Virginia Beach,Virginia 23462 condition number five (5) of the City Council approved PDH-2 Zoning District approved for the Property on September 27, 1982, to permit the Hunt Club Condominium to contain a total of forty-eight (48) units in six (6) buildings at a density of 4.25 units per acre,including three (3) new buildings on the Phase Four and Phase Five Land. NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives, assigns, grantee, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval,hereby makes the following modification to condition numbered 5 of the PDH-2 Zoning District governing the Property as approved by Grantee on September 27, 1982 subject to the 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 Phase Four and Phase Five Land is developed, it shall be as three (3) additional residential condominium buildings, each containing eight (8) residential dwelling units, substantially in accordance with the exhibit entitled "PROPOSED SITE IMPROVEMENTS, PHASES 4 & 5, PLAT OF HUNT CLUB CONDOMINIUM" dated 9/29/2021, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning(the"Conceptual Site Plan"). 2. When the Property is developed, additional supplemental landscape screening shall be planted along the western boundary of the Property,along Parliament Drive and Loflin Way,as well as additional foundation landscaping on the existing and new buildings and parking lot landscaping within the existing and new phases substantially as depicted and described on the Conceptual Site Plan. 3. The architectural design and exterior building materials on the three (3) new residential building as well as the new exterior building materials on the renovated exteriors of the three(3)existing residential buildings will be substantially as depicted and described on the PREPARED BY: B SYKPS,POURDON, exhibit entitled "Typical Hunt Club Condominium Building Elevation" dated 9/29/2021,which {I- SRN&LEVY,P.C. has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning(the"Elevation") 2 4. Condition number 5 of the 8 conditions governing the residential use of the Property under the PDH-2 rezoning granted on September 27, 1982 is modified to permit no more than a total of forty-eight(48)residential dwelling units in the six(6)buildings as depicted and described on the Conceptual Site Plan. 5. The provisions and requirements set forth in the remaining seven (7) original conditions of development have all been complied with,as reflected in the Conceptual Site Plan, and remain binding upon the Property. 6. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the modification to the condition attached to the Rezoning, 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: (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 PREPARED BY: ►� SYKES.BOURDON. authority(a)to order,in writing,that any noncompliance with such conditions be remedied;and S. I AHERN&LEVY.P.C. (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; 3 (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 name of the Grantors and the Grantee. PREPARED BY: :.B SYIC£S.POURDON, ``L AII£RN&LEVY.P.C. 4 WITNESS the following signature and seal: Grantor: Hunt Club Condominium Association, Inc., a Virginia non-stock corporation CABy: (SEAL) Mark C. Eller,President STATE OF VIRGINIA CITY OF VIRGINIA BEACH,to-wit: The foregoing instrument was acknowledged before me this 12th day of November,2021, by Mark C. Eller, President of Hunt Club Condominium Association, Inc., a Virginia non-stock corporation, Grantor. Ji4 /17:/-72 Notary Public My Commission Expires: August 31, 2022 Notary Registration Number: 192628 ts%\IA,R,,��•4'•s com>ti •. z ��_ • A /J'yCP jA • Viet f C 0-S%••' PREPARED BY: 113 SYK£S,BOURDON, AHERN&LEVY.P.C. 5 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY ALL THAT certain piece or parcel of land,with the buildings and improvements thereon and the appurtenances thereunto belonging, including an undivided one-half (1/2) interest in a twenty foot(20')unimproved private road located contiguous to the western boundary of said property, situate, lying and being in Kempsville Borough, City of Virginia Beach, Virginia, said property being more particularly bounded and described as follows: BEGINNING at the southeastern intersection of Lowthern Drive in the Norfolk and Southern Railroad Right of Way, thence along the southern Right of Way of the Norfolk and Southern Railroad Right of Way, S. 84° 19' 22" E, a distance of 163.97 feet to the point of beginning (said point of beginning is also the northwestern corner of Lot 3, Subdivision of Property of Norman P. Scott, said plat duly recorded in Deed Book 857, at Page 270); thence from said point of beginning continuing along the southern Right of Way of the Norfolk and Southern Railroad, S. 84° 19' 22" E. a distance of 693.14 feet to a point in the western line of a twenty foot (20') unimproved road (which road is referred to in an agreement between Miller and Santos in Deed Book 83, at Page 461); thence along the western line of said road, S. 15° 22' 19"W. a distance of 838.69 feet (833.59 feet Field) to the northern Right of Way line of Parliament Drive; thence along the northern Right of Way Line of Parliament Drive, N. 63° 03' 51" W. (N 63° 03' 42" W Field),a distance of 616.71 feet(615.68 feet Field) to a point in the line of the property of the City of Virginia Beach, Virginia; thence along the eastern line of the property of the City of Virginia Beach, Virginia, N. 26° 51' 04" E. (N 26° 50' 46" E Field), a distance of 75 feet (70 feet Field) to a point; thence turning and running along the northern line of the property of the City of Virginia Beach, Virginia, N. 63° 08' 56" W. (N 63° 09' 14" W Field), a distance of 63.43 feet (63.40 feet Field) to the western line of Lot One (1), of the Norman P. Scott Subdivision; thence along the eastern line of said subdivision, N. 11°49' 04" E. (N 11°48'46" E Field),a distance of 513.21 feet (513.19 feet Field) to the point of beginning. GPIN: 1467-33-7519-0000 PREPARED BY: 11 SYK£S,BOURDON, AAI RN&LEVY.P.C. 6 EXHIBIT "B" LEGAL DESCRIPTION PHASE FOUR AND PHASE FIVE LAND ALL THOSE certain lots, pieces or parcels of land, lying, situate and being in the Kempsville District of the City of Virginia Beach, Virginia, as shown, designated and depicted as "PHASE FOUR AREA = 1.583 ACRES (CONVERTIBLE LAND") and "PHASE FIVE AREA = 2.444 ACRES ("CONVERTIBLE LAND") on that certain plat entitled "EXHIBIT 'C-1' PLAT OF HUNT CLUB CONDOMINIUM" dated October 19, 1987 made by Rouse-Sirine Associates, Ltd., which plat is attached as EXHIBIT C-1 to the DECLARATION OF CONDOMINIUM OF HUNT CLUB CONDOMINIUM and which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach,Virginia,in Deed Book 2686,at Page 2045. It being a portion of the entire 11.3 acre parcel rezoned to PDH-2 on September 27, 1982 as described on Exhibit A of the Condominium Declaration recorded in Deed Book 2686, at Page 2027. GPIN: Part of 1467-33-7519-0000 H:\AM\—Mod of Conditions\Hunt Club Condo Assn\Proffer Agreement.docx PREPARED BY: BM SYKES.BOURDON, MI AR£RN&LEVY.P.C. 7 37 ITEM— V.K.2 PLANNING ITEM#72439 The following registered to speak: R.J. Nutter,Attorney for Applicant, 222 Central Park Avenue, Phone: 687-7502, spoke in SUPPORT Barbara Messner, P. O. Box 514, spoke in OPPOSITION Upon motion by Council Member Henley, seconded by Council Member Branch, City Council APPROVED, AS PROFFERED, Application of PRINCESS ANNE VILLAGE, LLC / SUSAN KELLAM,DAVID E.KELLAM REVOCABLE TRUST,KELLAM&EA TON,INC.,SISTERS II,LLC, CHARLES F. BURROUGHS HI& CITY OF VIRGINIA BEACH for a Conditional Change of Zoning from B-2 Community Business, AG-1 &AG-2 Agricultural Districts to Conditional PD-H2 Planned Unit Development(R-10 Residential District)& Conditional B-2 Community Business Districts)re development of 73 residential lots with up to 89 dwellings and one commercial parcel at 2369, 2373, 2375, 2381, 2385 Princess Anne Road, 2393, 2401, 2413 North Landing Road&parcel between 2393 North Landing Road, 2385 Princess Anne Road DISTRICT 2 (Formerly District 7—Princess Anne) BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA PRINCESS ANNE VILLAGE, LLC / SUSAN KELLAM, DAVID E. KELLAM REVOCABLE TRUST,KELLAM& EA TON,INC.,SISTERS II, LLC, CHARLES F. BURROUGHS HI & CITY OF VIRGINIA BEACH for a Conditional Change of Zoning from B-2 Community Business, AG-1 & AG-2 Agricultural Districts to Conditional PD-H2 Planned Unit Development (R-10 Residential District) & Conditional B-2 Community Business Districts) re development of 73 residential lots with up to 89 dwellings and one commercial parcel at 2369, 2373, 2375, 2381, 2385 Princess Anne Road, 2393, 2401, 2413 North Landing Road & parcel between 2393 North Landing Road, 2385 Princess Anne Road (GPINs 1494926240, 2404012707, 1494927384, 2403293752, 1494928455, 2404023254, 2404030056, 2404024848, 2404035242, 2404036378) DISTRICT 2 (Formerly District 7—Princess Anne) The following conditions shall be required: An Agreement encompassing proffers shall be recorded with the Clerk of Court. This Ordinance shall be effective in accordance with Section 1070 of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the 18th day of January Two Thousand Twenty Two. Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M.Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 46 ► \\\ \ ''''''' .N" LL NO r o ,���\ ° r (mi .0 r? of ,_ 11\ 0 0o \\ 7 \2 o I . 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' mN pN O CLACO o N(.9%,j m N q 4 CC0 \ c,Q )1 2.0-‹?O ...1 QQ g � � (:: / Document Prepared By: Troutman Pepper LLP 222 Central Park Avenue,Suite 2000 Virginia Beach,VA 23462 RJ Nutter(VSB#17774) AGREEMENT THIS AGREEMENT (this "Agreement"), made this 10th day of June, 2021, by and between SISTERS II, LLC, a Virginia limited liability company; CHARLES F. BURROUGHS, III, an individual; SUSAN S. KELLAM, Successor Trustee of the David E. Kellam Revocable Trust; SUSAN S. KELLAM, an individual; and KELLAM AND EATON, INCORPORATED, a Virginia corporation (collectively to be indexed as "Owners"); and PRINCESS ANNE VILLAGE LLC, a Virginia limited liability company; and the City of Virginia Beach, a Municipal Corporation, of the Commonwealth of Virginia (the "Applicant") (the "Applicant and Owners hereinafter collectively referred to as "Grantors"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as the "Grantee", and to be indexed as Grantee). WITNESSETH: WHEREAS, Sisters, II, LLC is the current owner of that certain parcel located in the City of Virginia Beach, Virginia, identified by GPIN No. 2404-02-4848-0000; Charles F. Burroughs, III is the current owner of those certain parcels located in the City of Virginia Beach, Virginia, identified by GPIN Nos. 2404-03-6378-0000 and 2404-03-5242-0000; GPIN No.2404- 03-0056-0000, owned by Charles F. Burroughs, III. Susan S. Kellam, Successor Trustee of the David E. Kellam Revocable Trust, is the current owner of those certain parcels located in the City of Virginia Beach, Virginia, identified by GPIN Nos. 1494-92-8455-0000 and 1494-92- 6240-0000; Susan S. Kellam, an individual, is the current owner of that certain parcel located in the City of Virginia Beach, Virginia identified by GPIN No. 2404-02-3254-0000; and Kellam and Eaton, Incorporated is the current owner of that certain parcel located in the City of Virginia Beach, Virginia, identified by GPIN No. 2401-01-2707-0000; the City of Virginia Beach is the current owner of those certain parcels located in Virginia Beach identified by GPIN No. 1494- 92-7384 and a portion of GPIN No. 2403-29-3752, as more particularly described in Exhibit A attached hereto and incorporated hereby by reference(the "Property"); and WHEREAS, Princess Anne Village, LLC is the current contract purchaser of the Property; and GPIN No.2404-02-4848-0000 GPIN No.2404-03-6378-0000 GPIN No.2404-03-5242-0000 GPIN No. 1494-92-8455-0000 GPIN No. 1494-92-6240-0000 GPIN No.2404-02-3254-0000 GPIN No.2401-01-2707-0000 GPIN No. 1494-92-7384-0000 GPIN No.2403-29-3752-0000 GPIN No.2404-03-0056-0000 35103510 WHEREAS, Grantors have initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the Property from Conditional B-2 and AG-1 to Conditional B-2 and Conditional R-10 with a PDH-2 overlay over the R-10 portion of the Property; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed-use purposes, through zoning and other land development legislation; and WHEREAS, Grantors acknowledge that competing and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to recognize the effects of the change and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned B-2 and R-10 with a PDH-2 overlay are needed to cope with the situation to which the Grantors' rezoning application gives rise; and WHEREAS, Grantors have voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing B-2, R-10 and PHD-2 zoning districts by the existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning;and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of the ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenants and agrees that these 35103510 2 proffers (collectively, the "Proffers") shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. When developed, the lot dimensions, setbacks, height and other development criteria set forth in the City Zoning Ordinance shall be as set out in the attached exhibit entitled Princess Anne Village Residential Development Criteria dated August 25, 2021 (the "Development Criteria"), a copy of which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. The Development Criteria shall be in lieu of all corresponding criteria in the Virginia Beach Zoning Ordinance applicable to the R-10 zoning district. 2. When developed, the project shall be developed in substantial conformity with the conceptual site plan consisting of 3 pages entitled "Conceptual Site Plan with Context", "Conceptual Site Plan" and "Program and Parking" dated May 28th 2021, (the "Concept Plan"), a copy of which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. 3. When developed, the number of single family residential homes located on the Property shall not exceed a total of 73 homes and 16 Garage Apartments. 4. Residential structures constructed on the Property shall be in substantial conformity with the conceptual architectural renderings consisting of 2 pages entitled Home Styles, Princess Anne Village, "Elevations", a copy of which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning and which have been approved by the Virginia Beach Historical Review Board on July 18, 2018. 5. When developed, access to the Property from North Landing Road shall be landscaped and contain a monument-styled free standing sign substantially as shown on exhibit entitled "Monument Sign", a copy of which has been exhibited to the Virginia Beach City Council and is on file unless modified by the Virginia Beach Historical Review Board with the Virginia Beach Department of Planning. 6. When developed the entrance open space areas shall be in substantial conformity with the elevation entitled "Entrance Way" dated June 4, 2021, a copy of which has been exhibited a copy of which has been exhibited to the Virginia Beach City Council and is on file unless modified by the Virginia Beach Historical Review Board with the Virginia Beach Department of Planning. 7. When developed, there should be a pedestrian trail system on the Property and that will connect to the adjacent City trail system as shown on the concept plan. 35103510 3 8. When developed, a linear open space area along Princess Anne road within the residential zones will be subdivided as shown on the elevation site plan entitled "Linear Open Space", dated June 4th, 2021, a copy of which has been exhibited to the Virginia Beach City Council and is on file unless modified by the Virginia Beach Historical Review Board with the Virginia Beach Department of Planning. 9. When developed, the Applicant will construct turn lanes at the vehicular entrance to Princess Anne Village substantially as shown on the Concept Plan. 10. When developed, the street widths, curb heights, centerline radii, rear lane, rear alley street signage and trail widths shall be developed in substantial conformity with the 3-page exhibit entitled "Thoroughfare Types" dated May 28th, 2021, a copy of which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. Proffers Relating to the Conditional B-2 Portion of Princess Anne Village 11. Vehicular access to the portion of the Property zoned Conditional B-2 shall be from the road system within Princess Anne Village and not directly from the North Landing Road. 12. When developed, only the following uses shall be permitted on the Property zoned Conditional B-2: Restaurants with no drive-through, office, and retail. 13. The height of any principal structure on the Property zoned Conditional B-2 shall not exceed 45 feet. The exterior design and building materials shall be complimentary to the building materials and architectural designs of the homes in Princess Anne Village and shall be subject to approval by the Virginia Beach Historic Review Board. 14. Any freestanding sign on the portion of the Property zoned Conditional B-2 shall be a monument style sign, externally lit, and shall not exceed 8 feet in height. The fmal design and building materials of any freestanding sign shall be subject to approval of the Virginia Beach Historic Board. 15. Further conditions lawfully imposed by applicable development ordinances may be required by Grantee during detailed site plan and/or subdivision review and administration of applicable City Codes by all relevant City agencies and departments to meet all applicable City Code requirements. 16. All references hereinabove to zoning districts and to applicable regulations refer to the Zoning Ordinance of the City of Virginia Beach, in force as of the date the conditional zoning amendment is approved by Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, 35103510 4 including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii)the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Department of Planning and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantors and Grantee. [Remainder of Page Intentionally Left Blank. Separate Signature Pages to Follow.] 35103510 5 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: SISTER II,LLC,a Virginia limited liability company B : K &VIMAJ Its: Qy�. STA C IN,WE•• r` OF CITY OF W —! j , ,asp, i to-wit: •The foregoing •'• ; ent w worn to and acknowledged bef. - me this g day of u„....„_, , 2021, by I I, (� two in her/his capacity . /�/, , ,.,1 of Sister II, Virginia limi liability company. She/he is either personally kno to 9- or has produced as identification. Witness my hand and official stamp or seal this g day o ,2021. r' 1 9 otary Public (SEAL) My Commission Expires: q a aag 7'i*912 Elizabeth K PakRegistration Number: ,c ) NOTARY PUBLIC Commonwealth of Virginia Reg.#7690832 My Commission Expires 9/30/2024 35103510v2 6 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: CHARLES F.BURROUGHS,III, an individual By: L'u-Gfil,lt, -'.le Its: STATE/COMMONWEAL OF V 1 1 A1(J1/4} CITY OF `fthe, C \ ,to—wit: The foregoing instrument was sworn to and acknowledged before me thisir day of , 2021, by Charles F. Burroughs,1II, an individual. He is either personally known to me or has produced Vi(51`P,l G..kakQ (4(e nSe as identification. r myhand and official stamp or seal this (Q day of n e, ,2021. Witness P Notary Public (SEAL) My Commission Expires: ,jO(P4 ��>>‘ti1111/�// Ora Re —17 (62 / Registration Number: ( ' � $.: *OTARy••.'yG, tJD 1 1 �• a .,mo. per, o••, C .: "ill 1 oo 35103510v2 7 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: SUSAN S.KELLAM,Successor Trustee of the David E.Kellam Revocable Trust 64,4,0,„„) 5 '- ' Susan S. Kellam STATE/COMMONWEALTH OF 1/ . . CITY OF U . . e)24,4,A, ,to-w � �. The foregoing instrument was sworn to and acknowledged before me this Cr& day of 2021 by Su ellam as Su ssor Trustee of the David E. Kellam Revocable rust. She is eithe ersonally kno to me or produced as identification. Witness my hand and o stamp or se 's �� ffiday of icial ,LL, ,2021. 9 Notary Public (SEAL) My Commission Expires: Y/30/2.2 JAMES W. LAM Registration Number: 7 01 go 7 7 n NOTARY PUBLIC � Commonwealth of Virginia Reg. #7018049 My Commission Expires April 30.2022 U 351ov2 8 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: SUSAN S.KELLAM, an individual By: (C6,, Its: STATE/COMMONWEALTH OF if ' CITY OF li ,to- The oregoing mstrument was sworn to and ackno 1-.ged 9 day of 2021, by Susan S. Kellam, an individual. Sh. is -ith r personal .�wn to me or has produced as identificati i.n. stampor seal thisd. of (, ' ,2021. Witness my hand and official 9 Y 'Tr Public (SEAL) My Commission Expires: y13c/z2 Registration Number: -/0/101/9 JAM ES W. LAM 7 NOTARY PUBLIC Commonwealth of Virginia Reg. #7018049 My Commission Expires April 30.2022 35103510v2 9 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: KELLAM AND EATON,INCORPORATED, a Virginia corporation By: f¢--- Its: r_ez,:24_..cleytt.L., STATFJCOONWEAL OF if CITY OF �/ ,to-w' : The foregoing instrument w orn to an. •cknowledged b ore me this day of ,2021,by 5t4,4A,,,, , in ti- 1 's capacity as ' of Kellam and Eaton, Incorporated, a Virginia corporation. She/h• eith: personally known to me or has produced as identifi•• • . Witness my hand and official stamp or seal this ;al day of ,it,1 ,2021. I Notary Public (SEAL) My Commission Expires: 00 Z� JAMES W. LAM NOTARY PUBLIC Registration Number: 7O Commonwealth of Virginia 4 Reg, #7018049 t My Commission Expires April 30,2022 35103510v2 1 0 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: PRINCESS ANNE VILLAGE LLC, a Virginia limited liability company By: ( .r. :ch1).44,441 ,e,4^. Its: A)/4N 4 GER STATE/COMMONWEALT OF VI f�f\i CU CITY OF & €o. to-wit: d Niv� , The foregoing in trument was sworn to and ackn wledged before me this /0-111 day of u,ll\4e- , 2021, by C r`CS r�0 a 'ns in her i /l�ca aci as of Pr incess nncess Anne Village LLC, a Virginia limited liability company . Sher is either ersonal known to me p Y or has produced V -mlg./ a t Ni4-e.,fr Ljcostas identification. Witness my hand and official stamp or seal this (Oday of Ile- 2021. 9/612,1/ ,, keea,4- Notary Public (SEAL) My Commission Expires: 6 IO/c / ,‘„,,ii_it,,,,,, a.R ,'• , Registration Number: 7 7 to Z I /1"iiiiiiN•;•• aj 0 , , N•eoaut A ib „:„ 044......11, - LIM gt tO ,iiif1111 O- 35103510 11 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: City of Virginia Beach, a Mu ipal Corporatio By: Its: City Manager STATE/COMMONWEALTH OF /' !1 1 CITY OF -y,,e-ri4 ,to-wit: The foregoing ins rent wal sworn to and acknowledged befo e Te this /7 day of Myenv&r, 2021, by L U in her/his capacity as (U ,e r of the City of Virginia Beach, a Municipal Co ration. She/he is either personally known to me or has produced (f(rztmxriA-tas identification. Witness my hand and official stamp or seal this /7 qay oft. Notary Public / (SEAL) My Commission Expires: D t 3 f 2 Commonwealth of Virginia Registration Number: / °I 26 3 9 Sarah Deal Jenkins•Notary Public Commission No.1926 My Commission Expires J _.LL___ -� 35103510 12 EXHIBIT A Legal Description 35103510 13 rroject Area _0--cripiion Beginning at point A; thence N 11 °25'31 " E a distance of 38'; thence N 08°43'35" E a distance of 70'; thence N 13°14'28" E a distance of 161 '; thence N 10°12'53" E a distance of 83'; thence N 21 °09'02" E a distance of 182'; thence N 31 °04'31 " E a distance of 397'; thence N 38°27'57" E a distance of 189'; thence S 43°55'26" E a distance of 224'; thence N 42°28'35" E a distance of 175'; thence N 43°55'25" W a distance of 217'; thence N 53°49'37" E a distance of 111 '; thence S 44°01 '38" E a distance of 5'; thence N 50°00'05" E a distance of 134'; thence with a curve turning to the right with an arc length of 219', with a radius of 295', with a chord bearing of N 71 °18'10" E, with a chord length of 214',; thence S 87°23'48" E a distance of 52'; thence N 02°36'12" E a distance of 10'; thence S 87°23'48" E a distance of 89'; thence N 03°27'21 " W a distance of 9'; thence S 89°10'23" E a distance of 160'; thence S 09°38'55" W a distance of 684'; thence S 44°00'34" E a distance of 1321 '; thence S 63°28'50" W a distance of 38'; thence S 45°13'45" W a distance of 216'; thence S 18°56'05" W a distance of 281 '; thence N 88°10'25" W a distance of 772'; thence S 03°49'34" W a distance of 194'; thence N 45°29'47" W a distance of 1149'; thence S 31 °10'14" W a distance of 45'; thence N 58°42'55" W a distance of 195'; thence S 24°02'20" W a distance of 0'; thence N 58°50'18" W a distance of 12'; which is the point of beginning, having an area of 2,420,964.82 square feet, 55.578 acres E DESCRIPTION OF NN PROJECT AREA ,, beginning at point A; �+ thence N 11'25'31" E a distance of 38'; .� thence N 08'43'35" E a distance of 70'; thence N 13'14'28" E a distance of 161'; thence N 10'12'S3" E a distance of 83'; 4,...,,,...., thence N 21'09'02" E a distance of 182'; thence N 31'04'31" E a distance of 397'; thence N 38'27'57" E a distance of 189'; thence S 43'55'26" E a distance of 224'; thence N 42'28'35" E a distance of 175'; thence N 43'55'25" W a distance of 217'; thence N 53'49'37" E a distance of 111';�..� �, thence S 44'01'38" E a distance of 5'; 1� *p SITE N o32T29 It thence N 50'00'05" E a distance of 134'; ,001N 1. eat thence with a curve s ensse' tea'f'10'2TE turning to the right t0't Se LOCATION MAP SCALE. 1"= 2,000 FT N 02.3e•12•E with an arc length of 219', with a radius of 295', THE YERaAN SOURCE OF TN6 PUT/S BASED ON n1E �• 9 with a chord bearing of N 71'18'10" E. *+A STATE PANE OOOCIVAIE m7.• TM 20.E a` with a chord length of 214',; N.A...,YQ5/93(NAAN).COMINATE VALUES ARE K 9 EJ6RESSED R+US SURVEY FEET s 1117'2' "E thence S 87'23'48" E a distance of 52'; thence N 02'36'12" E a distance of 10'; \ O thence S 87'23'48" E a distance of 89'; a 134,± 10 thence N 0327'21" W a distance of 9'; +;,,, N 5090.05"E thence S 89'10'23" E a distance of 160'; y,,$:„ \ - thence S 09'38'55" W a distance of 684'; Z.r F thence S 44'00'34" E a distance of 1321'; �,�'�('aJ, \ thence S 6328'50" W a distance of 38'; . . \ thence S 4513'45"W a distance of 216'; � Q \ ® - thence S 18'56'05" W a distance of 281'; thence N 88'10'25" W a distance of 772'; 4.1 s thence S 03'49'34" W a distance of 194'; r .55J set \ thence N 45'29'47" W a distance of 1149'; O \+�0'F, �,j thence S 3110'14" W a distance of 45'; drE, Q thence N 58'42'55" W a distance of 195'; ,-3R• thence S 24'02'20" W a distance of 0'; ��b '\ \ thence N 58'50'18" W a distance of 12'; which is the point of beginning, ��� ^' \ Q having on area of A3 y ‘\< 2420964.82 square feet, 55.578 acres QZ r a • .t nireoer�i£LWS - or morose rroreGT \ APPROXIMATEUMTSi !1 '•\ JE OF PROROPoPROPOSEDPRo,ECT Pcour A N Aver E``\ PROJECT LINE \ O,t POINT 1TF BENNG .s \ 4.QF\ ``\ s ss 66 \R� J f 61'! © \ N �14. E` `\ N OS.3'7�E ©, > \ 49 SS t .y N 11.25'31'E ``\ 3 't3' �}r w O \ \ \ . .ey,1 45 t \\ 5 31.OB' '.,,, \ • \ / M N ,\ S e329'S0 N ,, \' ) \\ \• IMP 110C44 56.PACE 45 sersomy or TITLE / / / / •+11.4. \\s4 \ - / / / / \\ \ ,, i• 4, / s,nB'ssS=/ /' N eel??S'■ / / © mt / 1 APPROK,YATE LOCATKR, / // // / I \\ of 100'oAAr+ACE EASEMENT APPROXIIME LINTS (NM BOOK 55.PAGE 45) �\ ""/ I I `\ K PROPOSED PROJECT ,`\ 0 - \\ X / ss \., \ //• PROJECT AREA or • Princess Anne GRAPHIC SCALE \ ><,� Village 00 0 50 too 200 400 \ I Q FOR / Princess Anne Village LLC --`J FEET `` I / ,e /'� PRINCESS ANNE VIRGINIA BEACH 1 INCH= 100FEET ' " ELLAM ERWITZ ENGINEERING-SURVEYING-PLANTING 5'''.TTAL C177 OW I17 VDtGD.'IA BEACH.'2" FIOA:[7 l:fL`. FIST)740 tM71-FRX(TST))•0 I601 oE90EU RSK APPpo ik - PRO.ECT/Y14013 DRAWS KS DATE 06/tl/21 SHEET O/C0(ED. RSK cr., t'.10d 1 OF 1 38 ITEM— V.K.3 PLANNING ITEM#72440 The following registered to speak: James White, 407 18th Street, Phone: 749-8469, did not respond Barbara Messner, P. O. Box 514, spoke in OPPOSITION Upon motion by Council Member Branch, seconded by Council Member Jones, City Council APPROVED, AS CONDITIONED, Application of JAMES D. WHITE REVOCABLE LIVING TRUST for a Conditional Use Permit re short term rental at 407 18th Street, Unit A DISTRICT 6(Formerly District 6— Beach)APPLICANT REQUEST DEFERRAL TO FEBRUARY 15,2022 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA JAMES D. WHITE REVOCABLE LIVING TRUST for a Conditional Use Permit re short term rental at 407 18th Street, Unit A (GPIN 24270763310001)DISTRICT 6(Formerly District 6 — Beach) APPLICANT REQUEST DEFERRAL TO FEBRUARY 15,2022 The following conditions shall be required: 1. An annual(yearly)STR Zoning Permit must be obtained from the Department of Planning and Community Development(Zoning Administration)before using the dwellingfor Short- Term Rental purposes. 2. Off-street parking shall be provided as required by Section 241.2 and 2303(b)(a)(i)(ii) of the City Zoning Ordinance or as approved by City Council. 3. The garage space within the unit must remain a minimum of nine(9)feet by eighteen (18) feet, contain a minimum eight (8)foot wide vehicle entryway opening, and shall remain free of materials to ensure vehicular accessibility to the Short Term Rental tenants. 4. Two (2)parking spaces, at a location subject to approval by the Zoning Administrator, shall be available for use by the Short Term Rental occupants at all times. 5. For properties located within the boundaries of the Residential Parking Permit Program (RPPP), while the Short Term Rental use is active,parking passes issued for the subject dwelling unit(s) through the RPPP shall be limited to two (2) resident passes only. Guest and temporary passes through the RPPP shall not be permitted. 6. This Conditional Use Permit shall expire five (5) years from the date of approval. The renewal process of this Conditional Use Permit may be administrative and performed by the Planning Department;however, the Planning Department shall notes the City Council in writing prior to the renewal of any Conditional Use Permit for a Short Term Rental where the Short Term Rental has been the subject of neighborhood complaints, violations of its conditions or violations of any building, housing,zoning,fire or other similar codes. January 18, 2022 39 ITEM— Y.K.3 PLANNING ITEM#72440 (Continued) 7. No events associated with the Short Term Rental shall be permitted with more than the allowed number of people who may stay overnight(number of bedrooms times two (2))on the property where the Short Term Rental is located. This Short Term Rental may not request or obtain a Special Event Permit under City Code Section 4-1. 8. The owner or operator must provide the name and telephone number of a responsible person, who may be the owner, operator or an agent of the owner or operator, who is available to be contacted and to address conditions occurring at the Short Term Rental within thirty (30) minutes and to be physical present at the Short Term Rental within one (1) hour. 9. If, or when, the ownership of the property changes, it is the seller's responsibility to notify the new property owner of requirements 'a'through `c'below. This information must be submitted to the Planning Department for review and approval. This shall be done within six(6)months of the property real estate transaction closing date. a. A completed Department of Planning and Community Development Short Term Rental Zoning Permit; and b. Copies of the Commissioner of Revenue's Office receipt of registration; and c. Proof of liability insurance applicable to the rental activity of at least$1-Million. 10. To the extent permitted by state law, each Short Term Rental must maintain registration with the Commissioner of Revenue's Office and pay all applicable taxes. 11. There shall be posted in a conspicuous place within the dwelling a summary provided by the Zoning Administrator of City Code Sections 23-69 through 23-71 (noise), 31-26, 31-27 and 31-28 (solid waste collection), 12-5 (fires on the beach), 12-43.2 (fireworks), and a copy of any approved parking plan. 12. All refuse shall be placed in automated refuse receptacles, where provided, and comply with the requirements of City Code sections 31-26, 31-27 and 31-28. 13. Accessory structures shall not be used or occupied as Short Term Rentals. 14. No signage shall be on-site, except that each short term rental shall have one (1)four- square foot sign posted on the building, or other permanent structure or location approved by the Zoning Administrator, that identifies the property as a short term rental and provides the telephone numbers for the Short Term Rental Hotlines in text large enough to be read from the public street. January 18, 2022 40 ITEM— V.K.3 PLANNING ITEM#72440 (Continued) 15. The Short Term Rental shall have no more than one(1)rental contract for every seven (7) consecutive days. 16. The owner or operator shall provide proof of liability insurance applicable to the rental activity at registration and renewal of at least $1-Million underwritten by insurers acceptable to the City. 17. There shall be no outdoor amplified sound after 10.•00 p.m. or before 10:00 a.m. 18. The maximum number of persons on the property after 11:00 p.m. and before 7:00 a.m. ("Overnight Lodgers') shall be two (2) individuals per bedroom, which number shall not include minors under the age of 16, provided that in no case may the total number of persons staying overnight at the property exceed the number of approved bedrooms multiplied by three(3). 19. The property owner, or their representative,shall provide to the City Planning Department permission to inspect the Short Term Rental property annually. Such inspection shall include: 1)At least one fire extinguisher has been installed inside the unit(in the kitchen) and in plain sight 2) Smoke alarms and carbon monoxide detectors are installed in accordance with the building code in affect at the of construction and interconnected. Units constructed prior to interconnection requirements must have a minimum of one smoke alarm installed on every floor of the structure and in the areas adjacent to all sleeping rooms, and when activated, be audible in all sleeping rooms, and 3)All smoke alarms and carbon monoxide detectors have been inspected within the last twelve months and are in good working order. 20. Properties managed by Short Term Rental Companies certified by the Department of Planning shall only be required to be inspected every three years. The inspection for compliance with the requirements above shall be performed by the Short Term Rental management company and be documented on a form prescribed by the Planning Department and shall be provided during the yearly permitting process. 21. Properties may be inspected annually for compliance with the requirements above by certified Short Term Rental Management Companies or Certified Home Inspectors. The compliance inspection shall be documented on a form prescribed by the Planning Department and shall be provided during the yearly permit process. 22. A structural safety inspection report shall be provided to the city every three (3) years indicating all exterior stairways, decks,porches, and balconies have been inspected by a licensed design professional qualified to perform such inspection (engineer or architect) and are safe for use. The report must indicate the maximum number of occupants permitted on each level of these structures and placards indicating the maximum number of occupants of all exterior stairways, decks,porches, and balconies must be posted on each level of these structures. January 18, 2022 41 ITEM— V.K.3 PLANNING ITEM#72440 (Continued) This Ordinance shall be effective in accordance with Section 107(1) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the 18t day of January Two Thousand Twenty Two. Voting: 7-3 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley, N. D. "Rocky" Holcomb, Louis R. Jones and Sabrina D. Wooten Council Members Voting Nay: John D. Moss, Aaron R. Rouse and Guy K. Tower Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 V 1 -�f^ Oft 1 .‘ OR\ ----'/N ''' ''\_ _ \_ :teet _.()`11 _ - St MI --...\__ A-9- .______,—mn, ir ! , 'P'\ tree' OR OR 9ths _,_ -------1 1 _----- Cl\ \ GUS00 0\ C.N , 43 11111 --_- OR ' \ OR OR et 0 4 \ 601Ilit ' �$th Stre O`R _ � � S 11 SOO (1) '� \ sire I:\ ' O , � o1 r*: Street '��, OR hs VABt \ cv OR - ', •SROR es iiii \---- - ,, Site James D. White Revocable LivingTrust W-\.0' /% s � 1� Property Polygons 407 18th Street, Unit A s Zoning Building - lim =moo Feet 0 20 40 80 120 160 200 240 42 ITEM— V.K.4 PLANNING ITEM#72441 Upon motion by Council Member Jones,seconded by Council Member Moss, City Council APPROVED, AS CONDITIONED,BY CONSENT,Application of 2508 PACIFIC AVENUE,LLC for a Conditional Use Permit re short term rentals at 2510, 2514, 2518, 2522, 2526&2530 Pacific Avenue DISTRICT 6 (Formerly District 6—Beach) BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA 2508 PACIFIC AVENUE,LLC for a Conditional Use Permit re short term rentals at 2510, 2514, 2518, 2522, 2526 & 2530 Pacific Avenue(GPIN24280072160000)DISTRICT 6(Formerly District 6—Beach) The following conditions shall be required: 1. The following conditions shall only apply to the dwelling unit addressed as 2510, 2514, 2418, 2522, 2526,2530 Pacific Ave., and the Short Term Rental use shall only occur in the principal structure. 2. An annual(yearly)STR Zoning Permit must be obtained from the Department of Planning and Community Development(Zoning Administration)before using the dwelling for Short- Term Rental purposes. 3. Off-street parking shall be provided as required by Section 241.2 and 2303(b)(a)(i)(ii) of the City Zoning Ordinance or as approved by City Council. 4. The garage space within the unit must remain a minimum of nine(9)feet by eighteen (18) feet, contain a minimum eight (8)foot wide vehicle entryway opening, and shall remain free of materials to ensure vehicular accessibility to the Short Term Rental tenants. 5. All additional required parking spaces, at a location subject to approval by the Zoning Administrator, shall be available for use by the Short Term Rental occupants at all times. 6. For properties located within the boundaries of the Residential Parking Permit Program (RPPP), while the Short Term Rental use is active,parking passes issued for the subject dwelling unit(s) through the RPPP shall be limited to two (2) resident passes only. Guest and temporary passes through the RPPP shall not be permitted. 7. This Conditional Use Permit shall expire five (5) years from the date of approval. The renewal process of this Conditional Use Permit may be administrative and performed by the Planning Department;however, the Planning Department shall not the City Council in writing prior to the renewal of any Conditional Use Permit for a Short Term Rental where the Short Term Rental has been the subject of neighborhood complaints, violations of its conditions or violations of any building, housing,zoning,fire, or other similar codes. January 18, 2022 43 ITEM— Y.K.4 PLANNING ITEM#72441 (Continued) 8. No events associated with the Short Term Rental shall be permitted with more than the allowed number of people who may stay overnight(number of bedrooms times two (2))on the property where the Short Term Rental is located. This Short Term Rental may not request or obtain a Special Event Permit under City Code Section 4-1. 9. The owner or operator must provide the name and telephone number of a responsible person, who may be the owner, operator or an agent of the owner or operator, who is available to be contacted and to address conditions occurring at the Short Term Rental within thirty (30) minutes and to be physical present at the Short Term Rental within one (1)hour. 10. If, or when, the ownership of the property changes, it is the seller's responsibility to notify the new property owner of requirements 'a'through `c'below. This information must be submitted to the Planning Department for review and approval. This shall be done within six(6)months of the property real estate transaction closing date. a. A completed Department of Planning and Community Development Short Term Rental Zoning registration;and b. Copies of the Commissioner of Revenue's Office receipt of registration; and c. Proof of liability insurance applicable to the rental activity of at least $1-Million. 11. To the extent permitted by state law, each Short Term Rental must maintain registration with the Commissioner of Revenue's Office and pay all applicable taxes. 12. There shall be posted in a conspicuous place within the dwelling a summary provided by the Zoning Administrator of City Code Sections 23-69 through 23-71 (noise), 31-26, 31-27 and 31-28 (solid waste collection), 12-5 (fires on the beach), 12-43.2 (fireworks), and a copy of any approved parking plan. 13. All refuse shall be placed in automated refuse receptacles, where provided, and comply with the requirements of City Code sections 31-26, 31-27 and 31-28. 14. Accessory structures shall not be used or occupied as Short Term Rentals. 15. No signage shall be on-site, except that each Short Term Rental shall have one (1)four- square foot sign posted on the building, or other permanent structure or location approved by the Zoning Administrator, that identifies the property as a short term rental and provides the telephone numbers for the Short Term Rental Hotlines in text large enough to be read from the public street. January 18, 2022 44 ITEM— Y.K.4 PLANNING ITEM#72441 (Continued) 16. The Short Term Rental shall have no more than one(1)rental contract for every seven (7) consecutive days. 17. The owner or operator shall provide proof of liability insurance applicable to the rental activity at registration and renewal of at least $1-Million underwritten by insurers acceptable to the City. 18. There shall be no outdoor amplified sound after 10:00 p.m. or before 10:00 a.m. 19. The maximum number of persons on the property after 11:00 p.m. and before 7:00 a.m. ("Overnight Lodgers') shall be two (2) individuals per bedroom, which number shall not include minors under the age of 16, provided that in no case may the total number of persons staying overnight at the property exceed the number of approved bedrooms multiplied by three(3). 20. The property owner, or their representative,shall provide to the City Planning Department permission to inspect the Short Term Rental property annually. Such inspection shall include: 1)At least one fire extinguisher has been installed inside the unit(in the kitchen) and in plain sight 2) Smoke alarms and carbon monoxide detectors are installed in accordance with the building code in affect at the of construction and interconnected. Units constructed prior to interconnection requirements must have a minimum of one smoke alarm installed on every floor of the structure and in the areas adjacent to all sleeping rooms, and when activated, be audible in all sleeping rooms, and 3)All smoke alarms and carbon monoxide detectors have been inspected within the last twelve months and are in good working order. Properties managed by Short Term Rental Companies certified by the Department of Planning shall only be required to be inspected every three years. The inspection for compliance with the requirements above shall be performed by the short term rental management company and be documented on a form prescribed by the Planning Department and shall be provided during the yearly permitting process. Properties may be inspected annually for compliance with the requirements above by certified Short Term Rental Management Companies or Certified Home Inspectors. The compliance inspection shall be documented on a form prescribed by the Planning Department and shall be provided during the yearly permit process. January 18, 2022 45 ITEM— V.K.4 PLANNING ITEM#72441 (Continued) 21. A structural safety inspection report shall be provided to the City every three (3) years indicating all exterior stairways, decks,porches, and balconies have been inspected by a licensed design professional qualified to perform such inspection (engineer or architect) and are safe for use. The report must indicate the maximum number of occupants permitted on each level of these structures and placards indicating the maximum number of occupants of all exterior stairways, decks,porches, and balconies must be posted on each level of these structures. This Ordinance shall be effective in accordance with Section 107(f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the 18`'' day of January Two Thousand Twenty Two. Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 z 1\ t LL O _ ug , ��0 O Ives _\ ' 3 Ah-c,, :al 0 0 is, .t.,IGo N - 40 \\*to ___-------Z • 04 0 0 u. .--0°°.-- \ _____________,- vs rn 1-4-114-tf)--7 71111 41): I 20 d \ _ N Q ) \ � N co V 2 N \• • anus ...1 a p ace 6 in M N ID ---- - \ 0) Ce� Q N r• o \ ce C.) Lin O \\ •— N C.) N O i 40 cU Ce co N o O. CNo FL S oo o � s in in ' \\ ' '-- . 04A Tr- _ 17 0 - ,- �s N o -\ re, TA D\T. 0_ d CeNet =t I Q , 0- 14= 0 (--;,-s:-D u, 0 --(-13 "0 '‘..\ co -)‘ . - <c3r- NIA 1\ - g ,-,,f, t___, _0 (.4 Cc_2 CD cm __--- it SIO, >, 0) c,_44 0%\_,73______ ___,0, ______ Os \ -E3, o c L O = -- Ci8 , 0 ii\\, 0 \ N IN Q 46 ITEM— V.K.5 PLANNING ITEM#72442 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council APPROVED, AS CONDITIONED, BY CONSENT, Application of ORP VENTURES, LLC for a Conditional Use Permit re short term rental at 603 20`"Street DISTRICT 6(Formerly District 6—Beach) BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA ORP VENTURES, LLC for a Conditional Use Permit re short term rental at 603 20th Street (GPIN 24179757080000) DISTRICT 6(Formerly District 6—Beach) The following conditions shall be required: 1. The following conditions shall only apply to the dwelling unit addressed as 603 20`"Street and the Short Term Rental use shall only occur in the principal structure. 2. An annual(yearly)STR Zoning Permit must be obtained from the Department of Planning and Community Development(Zoning Administration)before using the dwellingfor Short- Term Rental purposes. 3. Off-street parking shall be provided as required by Section 241.2 and 2303(b)(a)(i)(ii) of the City Zoning Ordinance or as approved by City Council. 4. The garage space within the unit must remain a minimum of nine(9)feet by eighteen (18) feet, contain a minimum eight (8)foot wide vehicle entryway opening, and shall remain free of materials to ensure vehicular accessibility to the Short Term Rental tenants. 5. All additional required parking spaces, at a location subject to approval by the Zoning Administrator, shall be available for use by the Short Term Rental occupants at all times. 6. For properties located within the boundaries of the Residential Parking Permit Program (RPPP), while the Short Term Rental use is active,parking passes issued for the subject dwelling unit(s) through the RPPP shall be limited to two (2) resident passes only. Guest and temporary passes through the RPPP shall not be permitted. 7. This Conditional Use Permit shall expire five (5) years from the date of approval. The renewal process of this Conditional Use Permit may be administrative and performed by the Planning Department;however, the Planning Department shall notify the City Council in writing prior to the renewal of any Conditional Use Permit for a Short Term Rental where the Short Term Rental has been the subject of neighborhood complaints, violations of its conditions or violations of any building, housing,zoning,fire, or other similar codes. 8. No events associated with the Short Term Rental shall be permitted with more than the allowed number of people who may stay overnight(number of bedrooms times two (2))on the property where the Short Term Rental is located. This Short Term Rental may not request or obtain a Special Event Permit under City Code Section 4-1. January 18, 2022 47 ITEM— Y.K.5 PLANNING ITEM#72442 (Continued) 9. The owner or operator must provide the name and telephone number of a responsible person, who may be the owner, operator or an agent of the owner or operator, who is available to be contacted and to address conditions occurring at the Short Term Rental within thirty (30) minutes and to be physical present at the Short Term Rental within one (1) hour. 10. If or when, the ownership of the property changes, it is the seller's responsibility to notify the new property owner of requirements 'a'through 'c'below. This information must be submitted to the Planning Department for review and approval. This shall be done within six(6)months of the property real estate transaction closing date. d. A completed Department of Planning and Community Development Short Term Rental Zoning registration; and e. Copies of the Commissioner of Revenue's Office receipt of registration; and f Proof of liability insurance applicable to the rental activity of at least $1-Million. 11. To the extent permitted by state law, each Short Term Rental must maintain registration with the Commissioner of Revenue's Office and pay all applicable taxes. 12. There shall be posted in a conspicuous place within the dwelling a summary provided by the Zoning Administrator of City Code Sections 23-69 through 23-71 (noise), 31-26, 31-27 and 31-28 (solid waste collection), 12-5 (fires on the beach), 12-43.2 (fireworks), and a copy of any approved parking plan. 13. All refuse shall be placed in automated refuse receptacles, where provided, and comply with the requirements of City Code sections 31-26, 31-27 and 31-28. 14. Accessory structures shall not be used or occupied as Short Term Rentals. 15. No signage shall be on-site, except that each Short Term Rental shall have one (1)four- square foot sign posted on the building, or other permanent structure or location approved by the Zoning Administrator, that identifies the property as a short term rental and provides the telephone numbers for the Short Term Rental Hotlines in text large enough to be read from the public street. 16. The Short Term Rental shall have no more than one(1)rental contract for every seven (7) consecutive days. January 18, 2022 48 ITEM— V.K.5 PLANNING ITEM#72442 (Continued) 17. The owner or operator shall provide proof of liability insurance applicable to the rental activity at registration and renewal of at least $1-Million underwritten by insurers acceptable to the City. 18. There shall be no outdoor amplified sound after 10:00 p.m. or before 10:00 a.m. 19. The maximum number of persons on the property after 11:00 p.m. and before 7:00 a.m. ("Overnight Lodgers') shall be two (2) individuals per bedroom, which number shall not include minors under the age of 16, provided that in no case may the total number of persons staying overnight at the property exceed the number of approved bedrooms multiplied by three(3). 20. The property owner,or their representative,shall provide to the City Planning Department permission to inspect the Short Term Rental property annually. Such inspection shall include: 1)At least one fire extinguisher has been installed inside the unit(in the kitchen) and in plain sight 2) Smoke alarms and carbon monoxide detectors are installed in accordance with the building code in affect at the of construction and interconnected. Units constructed prior to interconnection requirements must have a minimum of one smoke alarm installed on every floor of the structure and in the areas adjacent to all sleeping rooms, and when activated, be audible in all sleeping rooms, and 3)All smoke alarms and carbon monoxide detectors have been inspected within the last twelve months and are in good working order. Properties managed by Short Term Rental Companies certified by the Department of Planning shall only be required to be inspected every three years. The inspection for compliance with the requirements above shall be performed by the short term rental management company and be documented on a form prescribed by the Planning Department and shall be provided during the yearly permitting process. Properties may be inspected annually for compliance with the requirements above by certified Short Term Rental Management Companies or Certified Home Inspectors. The compliance inspection shall be documented on a form prescribed by the Planning Department and shall be provided during the yearly permit process. 21. A structural safety inspection report shall be provided to the City every three (3) years indicating all exterior stairways, decks,porches, and balconies have been inspected by a licensed design professional qualified to perform such inspection (engineer or architect) and are safe for use. The report must indicate the maximum number of occupants permitted on each level of these structures and placards indicating the maximum number of occupants of all exterior stairways, decks,porches, and balconies must be posted on each level of these structures. January 18, 2022 49 ITEM— V.K.5 PLANNING ITEM#72442 (Continued) This Ordinance shall be effective in accordance with Section 1070 of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the 18`" day of January Two Thousand Twenty Two. Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M.Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 O•R / W 1111 21st Street _.,— 0 cR 1 C � `` treat,---. .�-- 'C: ' 32pTh N. OR __----- ci. ___,---k_-\\ \--1\ ' 1"elt \ e1=3t-- ;��/�� � cos %.....: 3 % ,_ • Ili 1 OR � �7:,,N7s/7_,_ 20-�h Street-- \ , 7 \ 0, \ \ Ulm -------. /�St�eet _� _ _---------- 2, \ c 1 \10, 00R\ \ c , ,\ \ ORc ....... ' 11, , _.... ' milli V. Site ORP Ventures, LLC `"��y F Property Polygons 603 20th Street s QZoning Building me iiiii Feet 0 15 30 60 90 120 150 180 50 ITEM— V.K.6 PLANNING ITEM#72443 Upon motion by Council Member Jones, seconded by Council Member Moss, City Council APPROVED, AS CONDITIONED, BY CONSENT, Application of ORP VENTURES, LLC for a Conditional Use Permit re short term rentals at: 410 19th Street 41219`h Street f Unit 101 a. Unit 101 g. Unit 102 b. Unit 102 h. Unit 103 c. Unit 201 i. Unit 201 d. Unit 202 j. Unit 202 DISTRICT 6(Formerly District 6—Beach) BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA ORP VENTURES,LLC for a Conditional Use Permit re short term rentals at: 41019`h Street 41219`h Street a. Unit 101 a. Unit 101 b. Unit 102 b. Unit 102 c. Unit 103 c. Unit 201 d. Unit 201 d. Unit 202 e. Unit 202 (GPIN 24270754750000) DISTRICT 6 (Formerly District 6 — Beach) The following conditions shall be required: 1. The following conditions shall only apply to the dwelling units addressed as 41019`h Street Units 101, 102, 103, 201, 202 and 41219`h Street Units 101, 102, 201, 202, and the Short Term Rental use shall only occur in the principal structure. 2. An annual(yearly)STR Zoning Permit must be obtained from the Department of Planning and Community Development(Zoning Administration)before using the dwelling for Short Term Rental purposes. 3. Off-street parking shall be provided as required by Section 241.2 and 2303(b)(a)(i)(ii) of the City Zoning Ordinance or as approved by City Council. January 18, 2022 51 ITEM— V.K.6 PLANNING ITEM#72443 (Continued) 4. This Conditional Use Permit shall expire five (5) years from the date of approval. The renewal process of this Conditional Use Permit may be administrative and performed by the Planning Department;however, the Planning Department shall notify the City Council in writing prior to the renewal of any Conditional Use Permit for a Short Term Rental where the Short Term Rental has been the subject of neighborhood complaints, violations of its conditions or violations of any building, housing,zoning,fire or other similar codes. 5. No events associated with the Short Term Rental shall be permitted with more than the allowed number of people who may stay overnight(number of bedrooms times two (2))on the property where the Short Term Rental is located. This Short Term Rental may not request or obtain a Special Event Permit under City Code Section 4-1. 6. The owner or operator must provide the name and telephone number of a responsible person, who may be the owner, operator or an agent of the owner or operator, who is available to be contacted and to address conditions occurring at the Short Term Rental within thirty (30) minutes and to be physical present at the Short Term Rental within one (1) hour. 7. If, or when, the ownership of the property changes, it is the seller's responsibility to notify the new property owner of requirements 'a'through `c'below. This information must be submitted to the Planning Department for review and approval. This shall be done within six(6)months of the property real estate transaction closing date. a. A completed Department of Planning and Community Development Short Term Rental Zoning Permit; and b. Copies of the Commissioner of Revenue's Office receipt of registration; and c. Proof of liability insurance applicable to the rental activity of at least$1-Million. 8. To the extent permitted by state law, each Short Term Rental must maintain registration with the Commissioner of Revenue's Office and pay all applicable taxes. 9. There shall be posted in a conspicuous place within the dwelling a summary provided by the Zoning Administrator of City Code Sections 23-69 through 23-71 (noise), 31-26, 31-27 and 31-28 (solid waste collection), 12-5 (fires on the beach), 12-43.2 (fireworks), and a copy of any approved parking plan. January 18, 2022 52 ITEM— V.K.6 PLANNING ITEM#72443 (Continued) 10. All refuse shall be placed in automated refuse receptacles, where provided, and comply with the requirements of City Code sections 31-26, 31-27 and 31-28. 11. Accessory structures shall not be used or occupied as Short Term Rentals. 12. No signage shall be on-site, except that each Short Term Rental shall have one (1)four- square foot sign posted on the building, or other permanent structure or location approved by the Zoning Administrator, that identifies the property as a Short Term Rental and provides the telephone numbers for the Short Term Rental Hotlines in text large enough to be read from the public street. 13. The Short Term Rental shall have no more than one(1)rental contract for every seven (7) consecutive days. 14. The owner or operator shall provide proof of liability insurance applicable to the rental activity at registration and renewal of at least $1-Million underwritten by insurers acceptable to the City. 15. There shall be no outdoor amplified sound after 10:00 p.m. or before 10:00 a.m. 16. The maximum number of persons on the property after 11:00 p.m. and before 7:00 a.m. ("Overnight Lodgers') shall be two (2) individuals per bedroom, which number shall not include minors under the age of 16, provided that in no case may the total number of persons staying overnight at the property exceed the number of approved bedrooms multiplied by three(3). 17. The property owner, or their representative,shall provide to the City Planning Department permission to inspect the Short Term Rental property annually. Such inspection shall include: 1)At least one fire extinguisher has been installed inside the unit(in the kitchen) and in plain sight 2) Smoke alarms and carbon monoxide detectors are installed in accordance with the building code in affect at the of construction and interconnected. Units constructed prior to interconnection requirements must have a minimum of one smoke alarm installed on every floor of the structure and in the areas adjacent to all sleeping rooms, and when activated, be audible in all sleeping rooms, and 3)All smoke alarms and carbon monoxide detectors have been inspected within the last twelve months and are in good working order. Properties managed by Short Term Rental Companies certified by the Department of Planning shall only be required to be inspected every three years. The inspection for compliance with the requirements above shall be performed by the Short Term Rental management company and be documented on a form prescribed by the Planning Department and shall be provided during the yearly permitting process. January 18, 2022 53 ITEM— V.K.6 PLANNING ITEM#72443 (Continued) Properties may be inspected annually for compliance with the requirements above by certified Short Term Rental Management Companies or Certified Home Inspectors. The compliance inspection shall be documented on a form prescribed by the Planning Department and shall be provided during the yearly permit process. 18. A structural safety inspection report shall be provided to the city every three (3) years indicating all exterior stairways, decks,porches, and balconies have been inspected by a licensed design professional qualified to perform such inspection (engineer or architect) and are safe for use. The report must indicate the maximum number of occupants permitted on each level of these structures and placards indicating the maximum number of occupants of all exterior stairways, decks,porches, and balconies must be posted on each level of these structures. This Ordinance shall be effective in accordance with Section 107C1) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the 18t1i day of January Two Thousand Twenty Two. Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M. Henley,N. D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 reef � � h St OR 0t OR %4. Stree OR �9th Cs y tr a et ___ 1 ,- cv -- gth s ____- ------e: -/ Q , r \ 140 '' OR tree11 t � OR :• S , / �gth ♦ / o \ , %l1E' ii ' 00 I 0 ,, 0 ,—OR OR S OR co t atRLt ! - _ at I � _ N .1, Site ORP Ventures, LLC W.4&,: 410 19th Street, Units 101 , 102, 103, 201 , 202 -W' Property Polygonss Zoning 412 19th Street, Units 101 , 102, 201 , 202 Building El mimom iiim Iiii Feet 0 15 30 60 90 120 150 180 54 ITEM— V.L APPOINTMENTS ITEM#72444 BY CONSENSUS, City Council RESCHEDULED the following APPOINTMENTS: 2040 VISION TO ACTION COMMUNITY COALITION AGRICULTURAL ADVISORY COMMITTEE ARTS AND HUMANITIES COMMISSION BAYFRONT ADVISORY COMMISSION BEACHES AND WATERWAYS ADVISORY COMMISSION BIKEWAYS AND TRAILS ADVISORY COMMITTEE BOARD OF BUILDING CODE APPEALS CITIZEN OVERSIGHT BOARD COMMUNITY ORGANIZATION GRANT(COG)REVIEW AND ALLOCATION COMMITTEE GREEN RIBBON COMMITTEE HEALTH SERVICES ADVISORY BOARD HISTORICAL REVIEW BOARD INDEPENDENT CITIZEN REVIEW BOARD MINORITY BUSINESS COUNCIL OCEANA LAND USE CONFORMITY COMMITTEE OPEN SPACE ADVISORY COMMITTEE PARKS AND RECREATION COMMISSION RESORT ADVISORY COMMISSION SOCIAL SERVICES ADVISORY BOARD TRANSITION AREA/INTERFACILITY TRAFFIC AREA CITIZENS ADVISORY COMMITTEE URBAN AGRICULTURE ADVISORY COMMITTEE WETLANDS BOARD January 18, 2022 55 ITEM— VII.M APPOINTMENTS ITEM#72445 Upon NOMINATION by Council Member Jones, City Council REAPPOINTED: SUZANNE BALDWIND Representing Private Child/Family Provider DEIDRA BOLDEN Representing Human Services Designee AMANDA CATON Representing Health Department ANGELA HICKS Representing Community Services Board RONI MYERS-DAUB Representing VBCPS OL YMPHL4 PERKINS Representing Juvenile Court Services Two year term 2/1/2022—1/31/2024 COMMUNITY POLICY AND MANAGEMENT TEAM Voting: 10-0 Council Members Voting Aye: Michael F. Berlucchi, Linwood O. Branch, Mayor Robert M. Dyer, Barbara M.Henley,N.D. "Rocky"Holcomb,Louis R.Jones,John D. Moss, Aaron R. Rouse, Guy K. Tower, and Sabrina D. Wooten Council Members Absent: Vice Mayor Rosemary Wilson January 18, 2022 56 NEW BUSINESS ITEM#72446 Council Member Berlucchi advised he attended Plaza Volunteer Rescue Squad's 60th Anniversary event on January 15th and presented a Resolution on behalf of City Council recognizing their continuous dedication to the health and safety of the City since 1962. Council Member Berlucchi expressed his appreciation to the Body for their support. January 18, 2022 440"Pl'..4:4N vr,fer'N'tj, „,w RESOLUTION Whereas: The Plaza Volunteer Rescue Squad was originally chartered and incorporated in 1962 and commemorated the start of the 60th anniversary serving the citizens of Virginia Beach at their Annual Banquet on January 15,2022;and Whereas: The Plaza Volunteer Rescue Squad provides emergency ambulance services from Plaza Volunteer Rescue Station #16 on South Rosemont Road and a second location in Town Center known as Thalia EMS Station#15;and Whereas:The two centrally located Plaza Volunteer Rescue Stations are geographically advantageous as they border four other Volunteer Rescue Squads and comprise a core response resource for the city;and Whereas: The Volunteers operate four State certified ambulances and is the first of the ten Volunteer Rescue Squads in Virginia Beach to placard their new ambulances with the VBRescue logo;and Whereas:During 2021 the women and men of the Plaza Volunteer Rescue Squad volunteered over 18,000 hours of time to providing emergency medical care to the citizens and visitors of Virginia Beach in addition to training and administrative duties;and Whereas: The Plaza Volunteer Rescue Squad provided members to help the City's effort that resulted in delivering more than 125,000 COVID vaccinations at the Convention Center clinics in 2021 and who have continued serving the community uninterrupted during the COVID-19 pandemic;and Whereas: The Plaza Volunteer Rescue Squad has a diverse membership in excess of sixty volunteers across several generations representing numerous careers who responded to more than 6,400 calls for emergency medical service resulting in over 4,100 transports in 2021;and Whereas: The City Council wishes to express its deep appreciation to the Volunteers of the Plaza Volunteer Rescue Squad for their tireless acts of kindness,caring and compassion to the citizens and visitors of Virginia Beach by providing pre-hospital emergency medical services each and every day of the year. Now, Therefore,Be It Resolved By The Council Of The City Of Virginia Beach, Virginia That:On this 15th Day of January,2022, the Plaza Volunteer Rescue Squad is hereby recognized for its continued dedication to the health and safety of the city as it has been doing since 1962. 2 c3. 4,14.A Council'Wernher 9KichaetE Bertucchi Council WernherLinwood"O.Branch Counci[9Kem6erBarbara 1.9-fe n.„0, 41,, ' _ _ Counci(Wernher X.®D. " cky'J{ofcom6 Council-Wernher ,uis Jones ouncil Wernher John cD.Moss _ k")."04% Council9Kember)laron Rpuse Cou ' Wernher guy?X Tower outwit Wernher Sahrinzi D.Wooten Vice Mayor Rose Wits.on Mayor Rohe . "Bob ' "Dyer 57 • ADJOURNMENT ITEM#72447 Mayor Robert M. Dyer DECLARED the City Council FORMAL SESSION ADJOURNED at 8:49 P.M. Terri . eau Chief Deputy City Clerk A n Barnes,MM Robert M. Dy r City Clerk Mayor January 18, 2022