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HomeMy WebLinkAbout10/25/2005 - Regular October 25, 2005 1143 Roanoke County Administration Center 5204 Bernard Drive Roanoke, Virginia 24018 October 25, 2005 The Board of Supervisors of Roanoke County, Virginia met this day at the Roanoke County Administration Center, this being the fourth Tuesday and the second regularly scheduled meeting of the month of October, 2005. IN RE: CALL TO ORDER Chairman Altizer called the meeting to order at 3:02 p.m. The roll call was taken. MEMBERS PRESENT: Chairman Michael W. Altizer, Vice-Chairman Michael A. Wray, Supervisors Joseph B. "Butch" Church, Richard C. Flora, Joseph McNamara MEMBERS ABSENT: None STAFF PRESENT: Elmer C. Hodge, County Administrator; Paul M. Mahoney, County Attorney; John M. Chambliss, Assistant County Administrator; Dan O'Donnell, Assistant County Administrator; Diane S. Childers, Clerk to the Board; Teresa Hamilton Hall, Public Information Officer IN RE: OPENING CEREMONIES The invocation was given by Pastor Adrian Dowell, Shiloh Baptist Church. The Pledge of Allegiance was recited by all present. 1144 October 25, 2005 IN RE: REQUESTS TO POSTPONE, ADD TO, OR CHANGE THE ORDER OF AGENDA ITEMS Supervisor Church requested the addition of a briefing, Item D-1, regarding the real estate assessment process. There was a consensus of the Board to add this item. IN RE: BRIEFING 1: Briefina reaardina the Real Estate Valuation Department assessment process. (Joseph B. "Butch" Church) Supervisor Church referenced a copy of an email that he received in the mail during the first week of September which was from Billy Driver, Director of Real Estate Valuation, to all appraisers. He stated that the email was dated August 2, and it contained wording which implied directions to the appraisers to reassess property. He stated that he received this information, which was not sent anonymously, on September 1 and it raised concerns for him. He advised that he wanted to go on record stating that this information was not sent by the employee who just resigned from the Real Estate Valuation Department; therefore this briefing is not related to a personnel matter. He stated that on September 27, he asked the Director of Real Estate Valuation to meet with him to discuss the email and provide an explanation. He indicated that he is not implying wrongdoing; he is simply bringing forward a request from the citizens relating to taxes which are paid by every person in Roanoke County. He advised that the explanation provided by Mr. Driver left him some concerns, and he inquired if Mr. October 25, 2005 1145 Driver was asked by anyone in administration to make certain assessments or reassessments. Mr. Driver responded that this had not occurred. Supervisor Church stated that the Board and Administration must be squeaky clean with respect to reassessments. He stated that the citizen who sent the information wants a clear cut explanation of the residential and commercial assessment process. Supervisor Church further stated that he received a letter from Mr. Hodge in the Board packet on Friday which explained an attached letter of resignation from an employee in the Real Estate Valuation Department. Also included with the letter from Mr. Hodge was a letter and email from the employee to Mr. Driver, as well as a letter from Mr. Driver to the employee. The dates of the correspondence ranged from September 21 through October 21. The employee indicated a stressful work environment, as well as the fairness of continued assessments on citizens. Supervisor Church stated that this is his reason for added the briefing to ensure fairness and openness to the citizens. He indicated that there are hundreds of employees in Roanoke County, many of which resign and retire from year to year, and never before has he received a letter regarding a retirement or explanation of a retirement. He advised that he phoned the employee on Friday night and cited the following concerns as a result of the conversation: (1) a situation which occurred regarding a portion of Colonial Avenue that the Real Estate Valuation Office instructed be appraised as commercial, even though the property was zoned R-1. He stated that the assessment was disputed by an engineer who lives nearby and threatened legal action; 1146 October 25, 2005 subsequently, the appraisal was reversed. Supervisor Church noted that if the property was appraised as commercial, it would have more than doubled the taxes. (2) He stated that he was informed that an individual must have a Certified General Appraiser designation to legally appraise commercial property. He noted that there were only two employees in the department with this designation, one of whom just resigned. (3) He was advised that a tax refund of over $2,000 was refunded to an individual without going through the proper channels, notably the Board of Equalization (BOE). (4) He stated that he was also advised that if appraisers came back with any decreases in property values, they were repeatedly asked why the value decreased. Supervisor Church stated that properties do devalue and sometimes parcels are split into multiple parcels. He stated that there are 40,000 parcels in Roanoke County to appraise and assess, and he expects each to be done on a fair and equitable basis. He further stated that it was mentioned by someone in the Real Estate Valuation Office that both candidates for the office of Governor have gone on record advocating caps on real estate taxes. He stated that in his opinion, this should not ever be a reason for Roanoke County to be assessing and reassessing property to create a specific revenue figure. He stated that it is most alarming that Roanoke County has no cut-off date on reassessments, and it is his understanding that assessments are conducted up until the printing date of December 14. If this is true, it should make every property owner in Roanoke County jump up and down. He advised that for a $100,000 home, this means that it could be reassessed three times in one year and end up at a value of $120,000 or October 25, 2005 1147 greater. He stated that this process is not illegal. He noted that he has been supplied information by concerned citizens that tells him that Roanoke County has obvious problems because staff is going out and re-examining neighborhoods. He stated that it is his understanding that between nine and eleven neighborhoods were asked to be re- evaluated with the implication being to "come back with a higher number". He requested a study regarding how the County handles property assessments. He indicated that the fact that Roanoke County is okay with the Department of Taxation for 2003-2004 may be true; however, we are focusing on 2005-2006 now. He stated that even though things may be legal, they beg for change. If Roanoke County is reassessing property, the owners should be notified even if a public hearing is only required when the County does an overall increase. Supervisor Church indicated that the local government must operate on a budget just as citizens must do at home. He stated that budgets are arrived at by looking at your priorities and if revenues are not as great as projected, then you have to cut back. It appears that sometimes we are "getting the cart in front of the horse" and, perhaps as he is told, the County is creating an expected revenue number. He advised that for the past four years, County increases in real estate taxes have averaged a minimum of 60/0 and cited the following annual increases: 2001-2002 - 6.1 %; 2002-2003 - 6.8%; 2003-2004 - 6%; and 2004- 2005 - 6.4%. He advised that he does not have a master's degree in assessments but if you put multiply $64,955,000 by 6% for five years, you get $87 million. He questioned if this is a realistic number and stated that if the County is arbitrarily going out and 1148 October 25, 2005 looking for numbers, this is a problem. He stated that this is not the result of a disgruntled employee and stated that "perception is reality" when it comes to the people paying the bills, and if nothing changes, nothing changes. He stated that if there is a quirk in the machine, it should be fixed. If there is not, then it should be explained and we need to make sure everyone is happy with it. He advised that citizens deserve to know that when they receive their tax bill, everyone is being dealt with in a fair and equitable manner. He requested an evaluation regarding how the real estate assessment process is conducted in Roanoke County. Supervisor Wray inquired if it would be appropriate to schedule a work session to further discuss this issue. Mr. Hodge advised that staff is prepared to respond to some of the statements made, if that would be appropriate. Chairman Altizer noted that this would be appropriate; however, he also voiced support for scheduling a work session for further discussion. He stated that he wants to make sure that the perception is not that Roanoke County is creating a revenue number; and if this is the case, then something needs to be done about it. He stated that the Board would want to hear from Mr. Driver regarding these issues, and he indicated that a work session would be appropriate. Mr. Hodge advised that a short response could be offered today, and that a work session on November 15 and a follow up review by the State Department or County Auditors would be scheduled. He also stated that it would be appropriate to hear from Mr. Driver as well. October 25, 2005 1149 Mr. Hodge stated that the Board members who have worked with Mr. Driver know that he and his department are above reproach. He noted that assessments in Virginia are a state program that is audited annually. Further, the BOE is available to review any citizen concerns regarding assessments. He noted that the BOE is appointed by the Circuit Court Judges, they operate independently, and each member receives training. The BOE is in place to ensure equity for the citizens. Mr. Hodge advised that the sales to assessment ratio is a measure of equity, uniformity, and fairness. He stated that Roanoke County has a 900/0 ratio, which means that our assessments are 100/0 below the average selling prices in Roanoke County. He noted that properties typically sell for 5 to 15% higher than the County's assessed value. With respect to the statements made regarding the lack of a cut-off date, he advised that this was implemented to help the citizens. He stated that in prior years, there had been an established cut-off date and this only allowed citizens a short period of time in which to review their assessments with staff. In an effort to improve services to citizens, Mr. Driver and his predecessor, John Birckhead, chose to meet with citizens at night, on weekends, and holidays. They felt that if citizens have a question, they should not have to wait until once a year to meet with staff to review their assessment. Mr. Hodge further stated that there is no way that this process can be set up to lead the market, and advised that the 60/0 assessment increase includes new construction as well as reassessments. He stated that the County is pleased to have new construction, particularly with respect to commercial development, because this keeps the tax burden 1150 October 25, 2005 down for residential property owners. He noted the recent addition of Integrity Windows, Cardinal Glass, and Tecton, which were added to the real estate tax base, helps keep the pressure off residential taxes. He voiced support for a work session and stated that staff would be pleased to undergo a review of the process. Supervisor Altizer requested that the questions raised by Supervisor Church be addressed in the work session. Mr. Driver advised that he has been Director of the Real Estate Valuation Department for five years and two of the most important things they deal with are market value and uniformity. He stated that this is not an easy job and the staff puts a lot of time and effort into the process. He advised that all appraisers are certified except one, and he voiced support for the outstanding staff and their dedication to "going the extra mile" to address the concerns of all citizens. He noted that the number of appeals to his office and the BOE have decreased as a result of how well the office is functioning. He stated that he will be glad to address the questions raised by Supervisor Church during the upcoming the work session. He noted that there are many extenuating circumstances that apply to appraisals, and some properties are more complex to evaluate than others, particularly when an area is in transition. He stated that staff respects every citizen in Roanoke County when evaluating their appraisals. Supervisor Church stated that there were only several people who knew he was going to bring this issue up, and he commended the administration for being so October 25, 2005 1151 well prepared for this discussion. He referenced the discussion he held with Mr. Driver with respect to land value ratios and the effect on insuring homes. Supervisor Church cited an example of a situation where if he provided replacement cost coverage on a piece of property, which came back at $200,000, and he insures the package for $240,000, his customer has a problem. He stated that in this scenario, he is comparing the replacement of the home. But if he continues to place a value of $220,000 or $240,000, which may even be the loan amount, the customer will go to another company who will likely say that they do not need to insure the land, they only need to insure the property. He stated that Mr. Driver indicated in his conversation with him that just because Roanoke County made large increases in land values last year, it does not mean that they will leave them alone this year. He requested that Mr. Driver explain this comment. Mr. Driver advised that staff must come up with a fair market appraisal for building and land values. Each appraisal is based on square footage costs. He stated that for land values, this process is made easier if there have been sales of adjacent lots or property; however if the area is "filled out", staff must use a land/building ratio. He stated that the square footage rates for buildings are known, and staff then arrives at a value. What is remaining then has to be used as a land value. Mr. Driver stated that when you see increases in existing homes, all the value can not be placed just on the building itself; some must be attributed to the land. He noted that with the scarcity of land in Roanoke County, it puts a premium on our land values based on supply and demand. 1152 October 25, 2005 Supervisor Church stated that in looking back, it would concern anyone looking at the previously referenced email that our Real Estate Valuation Department is reviewing sales and going back to reassess eight to eleven neighborhoods. He inquired if this could translate to as many as 300 homes. Mr. Driver responded in the affirmative but stated that they could also consist of smaller neighborhoods. Supervisor Church advised that it bothers him greatly when there is a County employee with the highest designations of degrees who is ready to retire after 22 years of service, and at the same time he receives an email from a separate individual regarding the same issue, along with a letter from the County Administrator, and all of the pieces appear to be scattered. He stated that he also received an email from Mr. Gibson, who lives in either the Vinton or Hollins district, dated March 29, 2005, commenting that the Board of Supervisors were leaving the tax rates unchanged and that there would be no tax increases. He advised that Mr. Gibson indicated in his email that he did not understand this because his property assessment had increased 11.3% over the prior year. Supervisor Church stated that there must be a ceiling in sight; at our current pace, we are at $87+ million in tax revenue. He indicated that he wants the citizens to know that assessments are fair and equitable and they are not done to achieve a certain number. He stated that reassessing homes multiple times concerns him, and he questioned if homes are reassessed every time a property in the area is sold. Mr. Driver stated that when the County conducts a general reassessment, all sales for the year are examined. He stated that just because a home is sold, it does not October 25, 2005 1153 mean that it is reassessed. Staff examines all the data for sales within a neighborhood to determine the median priced home in the neighborhood. He stated that if a home was appraised at $160,000 in the prior year and homes in that neighborhood are now selling for $180,000, the assessment will likely increase to the range of $170,000 to remain within the 90% range of fair market value. He reiterated that simply because a home is sold, it does not mean that the County is going back out and reassessing the value. Supervisor Church further inquired how Mr. Driver accounts for the eight to eleven neighborhoods which were re-evaluated and what criteria would contribute to such a reassessment. Mr. Driver responded that it could be due to a number of factors; for example, the land/building ratios could be wrong and he noted that they try to keep a certain percentage of the total value between 180/0 and 21 %. Mr. Driver advised that other areas such as Northern Virginia and Virginia Beach have seen assessment increases of 20%-50°/Ó in a year. He indicated that Roanoke County increases have remained level, but we are seeing increases. He stated that the recent gains in the real estate market overall are some of the largest experienced in years. He advised that it is the responsibility of his office to reflect what is happening in the marketplace, not set it. Supervisor Church commented that Northern Virginia is not a valid comparison; he stated that we must ensure that if there are decreases to property values, they should be left alone. He advised that we should not look at an assessment and say it can not go down, it should go up. 1154 October 25, 2005 Mr. Driver stated that he could assure Supervisor Church and the citizens in Roanoke County that staff is being more than fair in their market value assessments, and their uniformity is in line with surrounding localities and those of a similar size. He referenced the coefficient of dispersion, which measures uniformity, and noted that according to this measure, Roanoke County is ranked as one of the top in the state. Supervisor Church questioned what type of appraisal designation is needed to evaluate commercial property. Mr. Driver advised that no designation is required for an individual working for a locality. Supervisor Church further inquired what would generally be required to conduct such an appraisal of commercial property. Mr. Driver advised that he was not certain what is generally required; however, he would be glad to research that information. Supervisor Church stated he is concerned that Roanoke County could be legally challenged if we have staff conducting commercial evaluations with no qualifications. He noted the situation previously mentioned on Colonial Avenue and stated that the County needs to be prepared and have qualified individuals conducting the evaluations. Supervisor Church stated that it is his understanding that there is only one appraiser left with the appropriate certification who can do commercial evaluations. Mr. Driver advised that all the senior appraisers are able to assess commercial property. Supervisor Church stated that if the County loses in a lawsuit, the taxpayers pay again. Supervisor Wray requested that Mr. Driver confirm that he is the Director of Real Estate Valuation. Mr. Driver responded in the affirmative. Supervisor Wray October 25, 2005 1155 inquired if there has been an Assistant Director position in the department which has been open for two years. Mr. Driver responded in the affirmative. Supervisor Wray stated that either Mr. Driver has not tried to fill this position, or there were promotions from within, or perhaps he does not need the position and it can be taken off the books. He requested that Mr. Driver elaborate on this situation. Mr. Driver stated that he would be glad to address this further in the work session, and indicated that the department is in the process of evaluating new software which may affect this decision. This position has been held open during this evaluation phase to determine the impact once the new software is installed and how the Assistant Director position will be affected. Supervisor Wray stated that if it has gone this long and no plans have been made, then it might be something that is not needed. Supervisor Church noted that this position has been held open, and yet it is his impression that the work load in the department is overwhelming. He stated that he has been advised that the computers are not working properly and people have to use alternative work stations. He questioned why we are waiting to fill this position, and indicated that perhaps the position should be deleted. He stated that it is his understanding that there were at least two individuals qualified to fill the Assistant Director position, and one is retiring. Supervisor McNamara noted that briefings are normally not 40 minutes long and directed from the Board to a particular department. He stated that he does not want to get into a situation where departments begin to question who the Board will be 1156 October 25, 2005 "going after" next week. He noted that Mr. Driver has indicated he would be glad to hold a work session at the next meeting to address any concerns and issues, and he feels that this is appropriate. Supervisor McNamara stated that appraising is not an exact science but the summation of all the appraisals can generate exact results as to effectiveness. He stated that in past years, this has always been exhibited within the Real Estate Valuation Department. He stated that the Board needs to schedule the work session, which was agreed to, and noted that it is not fair to expect the department to respond to inquiries when they are unprepared. Supervisor Church concurred and stated that he did not expect a briefing to become this involved. As he previously noted, Roanoke County staff was well prepared to address this matter and they chose to do so. He stated that he wants a work session, and this lengthy discussion was brought on by Mr. Hodge and Mr. Driver being present. He stated that as Supervisor McNamara indicated, the briefing should have been brief. Supervisor Altizer stated that generally, briefings do not come from the Board; however, when questions are left unanswered, you have to give people an opportunity to respond to those issues so that it does not go out as a one-sided news story in the media without the opportunity to respond to the issues. There was a consensus of the Board to schedule a work session on November 15, 2005, to further discuss this matter. October 25, 2005 1157 IN RE: NEW BUSINESS 1: Reauest to aDDroDriate funds in the amount of J1.800 for the Durchase and installation of ª Delanev Court Community neiahborhood sian. (Elmer C. Hodae. County Administrator) A-102505-1 Mr. Hodge advised that Ms. Jackie Robinson, a member of the Delaney Court neighborhood and also a teacher at the Roanoke County Career Center, would be joining him in this presentation. He stated that the Delaney Court neighborhood is well-established and located just off the Blue Ridge Parkway. He indicated that the residents are trying to make their community more identifiable, and he noted that similar sign projects have been done with other communities and civic leagues. He stated that Roanoke County values our neighborhoods and encourages the residents to take pride in their community. He noted that staff has worked with communities in the Clearbrook and North Lakes areas to install neighborhood signs of a similar nature. Mr. Hodge advised that this sign will be one that identifies the Delaney Court area. He further noted that in each of these instances, the neighborhood signs also have identification of Roanoke County. He stated that in the past, the cost for these signs has been in the range of $1,500 to $3,000. Ms. Robinson stated that Delaney Court is a small, rural community which has always been last on the list to receive services from Roanoke County. She advised that in the last year, the residents have reorganized a civic league and have decided to 1158 October 25, 2005 address concerns in their neighborhood which have not been dealt with in the past. She stated that it is time for the community to stand up and make their neighborhood what they want it to be. She noted that many years ago, they were a community without indoor plumbing. Ms. Robinson advised that Roanoke County was not instrumental in getting running water to the community, but rather it came through the Virginia Water Project, now known as Southeast Rural Community Assistance Project (RCAP). She stated that this project was made possible through the concerns of a community resident who noted the lack of services that existed for the area. She also stated that their community is last on the list to get their roads cleaned when there is snow or ice; however, they have learned to live with their situation and not cause problems. Ms. Robinson indicated that the community is now at the point where they feel that they pay taxes like everyone else and they should receive services provided to other residents. Ms. Robinson noted that in her conversations with Mr. Hodge, he commented that the water supply was only meant to accommodate 50 households. She stated there are currently approximately 56 homes in the area and there is land being surveyed for additional homes. She voiced concerns about the impact of continued growth on the water supply and what Roanoke County will do to address those issues. She stated that she is Vice-President of the Civic League, and advised that Supervisor Altizer and Mr. Hodge have decided that asking for a sign in the neighborhood would be appropriate to let people know about the existence of the community. She stated that providing a community sign indicates that they are recognized as part of Roanoke October 25, 2005 1159 County. Ms. Robinson also referenced the $87 million in real estate tax revenue mentioned earlier in the meeting and noted that these revenues are supported by their property taxes as well. She thanked Roanoke County for the opportunity to express the needs of her community and she stated that the residents would like to have those needs met. If the needs can not be met, the Board should at least give them an opportunity to approach them and tell them why the needs can not be met. She also noted concerns regarding increasing water bills received from the Western Virginia Water Authority. Ms. Robinson also advised that from March 4-11, 2006, students will be visiting from Georgetown University, and she thanked Supervisor Altizer and Mr. Hodge for their attendance at their event last year. Supervisor Altizer thanked Ms. Robinson and the community leaders in Delaney Court for their active participation. He noted that the County is working with the Virginia Department of Transportation (VDOT) to resolve some of the road issues in their neighborhood, and he also voiced concerns regarding the water supply in the area. He asked that Ms. Robinson leave information regarding the water bill that she referenced in her comments and advised that he would investigate this issue. Supervisor Church voiced support for the community and stated that he put water in his mother's home when he was 20 years old, so he understood the issues Ms. Robinson was referencing in her remarks. 1160 October 25,2005 Supervisor Altizer moved to appropriate $1,800 from the Board Contingency Fund for the cost and installation of the community sign. The motion carried by the following recorded vote. AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None Supervisor Wray commented that the Clearbrook community was very excited when they installed a similar sign. He stated that the sign helped to identify the community, and resulted in a sense of pride in their community for the residents. IN RE: REQUEST FOR PUBLIC HEARINGS AND FIRST READING OF REZONING ORDINANCES - CONSENT AGENDA 1. First readina of an ordinance to rezone 1.3014 acres from C-1. Office District. and .0786 acres from C2C. General Commercial District with Conditions. to C-2C. General Commercial District with Conditions. and to obtain ª sDecial use Dermit for the construction of ª fast food restaurant with drive-thru located at 3814 Challenaer Avenue. Hollins Maaisterial District. UDon the petition of Grant Avenue DeveloDment. Inc. Supervisor Flora moved to approve the first reading and set the second reading and public hearing for November 15, 2005. The motion carried by the following recorded vote: October 25, 2005 1161 AYES: NAYS: IN RE: Supervisors McNamara, Church, Wray, Flora, Altizer None FIRST READINGS OF ORDINANCES 1. First readina of an ordinance authorizina conveyance of ª Dermanent easement to the Virainia DeDartment of TransDortation (VDOT) for imDrovements to State Hiahwav Route 0651. Mountain View Road. Vinton Maoisterial District. (Joseph B. Obenshain, Senior Assistant County Attornev) Mr. Mahoney stated that VDOT is in the process of improving Mountain View Road, State Route 651, in the Vinton Magisterial District. He indicated that VDOT is acquiring rights-of-way and easements to complete this project, and they would like for Roanoke County to convey 0.056 acre of land owned by the County to them for purposes of completing the project. Mr. Mahoney advised that the both the Community Development Department and Liz Belcher, Greenway Coordinator, have reviewed this request and they favorably recommend approval of the first reading. He stated that the second reading of this ordinance will be held on November 15. There was no discussion on this item. Supervisor Altizer moved to approve the first reading and set the second reading for November 15, 2005. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None 1162 October 25, 2005 IN RE: APPOINTMENTS 1. Buildina Code Board of Adiustments and ADDeals (Fire Code Board of ADDeals) Supervisor Altizer advised that Ralph Henry has indicated that he would be willing to serve an additional four-year term and confirmation of this appointment has been placed on the consent agenda. 2. Grievance Panel Supervisor Altizer inquired if Joe Sgroi, Director of Human Resources, has a recommendation for the vacancy on this committee. The Clerk advised that a recommendation is not yet available. IN RE: CONSENT AGENDA R-102505-2, R-102505-2.a Supervisor Altizer moved to adopt the consent resolution. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None RESOLUTION 102505-2 APPROVING AND CONCURRING IN CERTAIN ITEMS SET FORTH ON THE BOARD OF SUPERVISORS AGENDA FOR THIS DATE DESIGNATED AS ITEM J - CONSENT AGENDA BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That the certain section of the agenda of the Board of Supervisors for October 25, 2005, designated as Item J - Consent Agenda be, and hereby is, approved and October 25, 2005 1163 concurred in as to each item separately set forth in said section designated Items 1 through 6, inclusive, as follows: 1. Approval of minutes - October 11, 2005 2. Resolution of appreciation upon the retirement of Rebecca R. Cramer, Social Services Department, after twenty-five years of service. 3. Request from the schools to accept and appropriate dual enrollment revenues in the amount of $100 4. Request from the Police Department to accept and appropriate funds from three Division of Motor Vehicle grants in the amount of $25,500 5. Request to accept and appropriate a grant in the amount of $31,861 on behalf of RADAR for Section 5311 Monies 6. Confirmation of appointment to the Building Code Board of Adjustments and Appeals (Fire Code Board of Appeals) 2. That the Clerk to the Board is hereby authorized and directed where required by law to set forth upon any of said items the separate vote tabulation for any such item pursuant to this resolution. On motion of Supervisor Altizer to adopt the resolution, and carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None RESOLUTION 102505-2.a EXPRESSING THE APPRECIATION OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY UPON THE RETIREMENT OF REBECCA R. CRAMER, SOCIAL SERVICES DEPARTMENT, AFTER TWENTY-FIVE YEARS OF SERVICE WHEREAS, Rebecca R. Cramer was first employed by Roanoke County on March 31, 1980, in the Social Services Department; and served as a senior eligibility worker; and WHEREAS, Ms. Cramer retired from Roanoke County on October 1, 2005, after twenty-five years and six months of service; and WHEREAS, Ms. Cramer consistently strived to meet the financial needs of the elderly population, concentrating on those customers who were in adult care or nursing home facilities; and WHEREAS, Ms. Cramer had the compassion and the special skills necessary to collaboratively work with the elderly and their families to ensure the elderly person's safety and that their daily living needs were being met; and WHEREAS, Ms. Cramer, through her employment with Roanoke County, has been instrumental in improving the quality of life for its citizens. NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of Roanoke County, Virginia, expresses its deepest appreciation and the appreciation of 1164 October 25, 2005 the citizens of Roanoke County to REBECCA R. CRAMER for more than twenty-five years of capable, loyal, and dedicated service to Roanoke County; and FURTHER, the Board of Supervisors does express its best wishes for a happy and productive retirement. On motion of Supervisor Altizer to adopt the resolution and carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None IN RE: REPORTS Supervisor Wray requested that Item N-13 be removed and requested that the Clerk read the proclamation. Supervisor Wray moved to receive and file the following reports. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None 1: General Fund UnaDDroDriated Balance 2. CaDital Reserves 3. Reserve for Board Continaency 4. Future CaDital Proiects 5. Accounts Paid = SeDtember 2005 6. Statement of eXDenditures and estimated and actual revenues for the month ended SeDtember 30. 2005 7. Statement of Treasurer's accountability per investment and Dortfolio Dolicy as of September 30. 2005 8. Public Safety Center Buildina Proiect Budaet Report October 25, 2005 1165 9. Public Safety Center Buildina Proiect Chanae Order ReDort 10. Jail Study Costs ReDort 11. ReDort of claims activity for the self-insurance proaram for the Deriod ended SeDtember 30. 2005 12. ReDort from the Virainia DeDartment of TransDortation (VDOT) of chanaes to the secondary road system in SeDtember 2005. 13. Proclamation declarina October 23 : 30. 2005 as Red Ribbon WORK SESSION 1. Work session with leaislative liaison to consider adoption of ª resolution for ª leaislative Droaram for the 2006 Session of the Virainia General Assembly. (Paul Mahoney. County Attorney) The work session was held from 4:32 p.m. until 5:13 p.m. Mr. Mahoney and Eldon James, Legislative Liaison, briefed the Board on the following issues which are included in the draft legislative program for the 2006 session of the General Assembly: (1) Charter amendment to allow for tax on tobacco products; (2) Support the JLARC recommendations to address the shortfall in state funding for K-12 education and to fully fund the state Board of Education proposals; (3) Support tax restructuring that grants localities additional revenue authority and increases local revenue diversification; (4) Support amending Section 33.1-72.1 to IN RE: authorize counties to allow private roads under local subdivision and zoning ordinances and still participate in the rural addition program with no financial loss or penalty; (5) 1166 October 25,2005 Support additional state funding for transportation, and in particular, funding for improvements to 1-81, and funding for passenger and freight rail improvements; (6) Support telecommunications tax restructuring so long as it protects the long-term fiscal interests of local governments and ensures a modern communications service tax policy that treats all corporate competitors equitably; (7) Oppose the elimination of local cable television franchising authority; (8) Amend Sections 16.1-69.48 and 15.2-1716 to provide that the reimbursement of expenses incurred by localities in responding to DUI and other traffic incidents may be collected as a fee in the criminal or traffic infraction proceedings, and that such fee be paid directly into the treasury of the locality; and (9) Support amending Section 9.1-106 to allow Roanoke County to charge a processing fee in criminal or traffic proceedings to support a criminal justice training academy. There was a consensus of the Board to support these legislative initiatives. IN RE: NEW BUSINESS 1. Resolution adoDtina ª leaislative Droaram for the 2006 session of the Virainia General Assembly and Detitionina the General Assembly to favorably consider the tODics and issues addressed therein. (Paul Mahoney. County Attorney) R-102505-3 October 25, 2005 1167 Mr. Mahoney advised that the Board discussed the topics to be included in the legislative program at a work session held earlier today with Eldon James. He indicated that the draft resolution sets forth the topics discussed in the work session. Mr. Mahoney summarized the following legislative priorities for the 2006 session of the Virginia General Assembly: (1) A public hearing will held at the November 15 meeting to amend the County Charter in order to grant authority to tax tobacco products. (2) The Board supports the JLARC recommendations for the General Assembly to fully fund K-12 education at an estimated annual cost of $870 to $900 million. (3) The County supports granting to localities and counties additional revenue authority and increased local revenue diversification, and voices opposition to attempts to restrict local taxing authority. (4) With respect to the rural addition road program, VDOT has administratively developed a new interpretation of state law provisions that would restrict the ability of localities to approve private roads under local zoning or subdivision ordinances. Mr. Mahoney advised that the Board feels strongly about this issue and recognizes that there is a place for private roads in Roanoke County, and is requesting the General Assembly to authorize counties to allow private roads not built to minimum VDOT standards and still participate in the rural addition road program with no loss of funding or penalty. (5) The Board supports funding for transportation issues such as 1- 81 and passenger and freight rail improvements. (6) The Board supports, with caution, the telecommunications tax restructuring so long as it protects the long-term fiscal interests of local governments while also ensuring a modern communications service 1168 October 25, 2005 tax policy that treats all corporate competitors equitably. The County would like to expand communications service tax revenues in exchange for those companies to enter onto local rights-of-way and easements and also try to ensure adequate consumer protection and safeguard the efficient local public safety E-911 call centers. (7) The Board is concerned about attempts to limit local cable franchising authority, changes in definitions of gross revenues, ensuring quality of services to citizens, maintaining public education and governmental channels. (8) The Board supports amending provisions of state law that would provide an easier method to collect civil fees and expenses arising from emergency responses to DUI traffic accidents. (9) The Board seeks authority to charge a processing fee at certain traffic and criminal cases to support County's Criminal Justice Training Academy. Mr. Mahoney recommended that Item 4 on the draft resolution be amended as follows: "Support amending Sec. 33.1-72.1 to authorize counties to allow private roads not built to VDOT standards under local subdivision and zoning ordinances and still participate in the rural addition program with no financial loss or penalty." There was no discussion on this item. Supervisor Flora moved to adopt the resolution with Item 4 amended to state: "Support amending Sec. 33.1-72.1 to authorize counties to allow private roads not built to VDOT standards under local subdivision and zoning ordinances and still October 25, 2005 1169 participate in the rural addition program with no financial loss or penalty." The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None RESOLUTION 102505-3 ADOPTING A LEGISLATIVE PROGRAM FOR THE 2006 SESSION OF THE VIRGINIA GENERAL ASSEMBLY, AND PETITIONING THE GENERAL ASSEMBLY TO FAVORABLY CONSIDER THE TOPICS AND ISSUES ADDRESSED HEREIN WHEREAS, the Board of Supervisors of Roanoke County, Virginia, has identified major legislative issues of state-wide concern to be considered by the 2006 session of the Virginia General Assembly; and WHEREAS, the Board adopts this resolution as its Legislative Program for the 2006 session of the Virginia General Assembly. NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia, that the following legislative initiatives are submitted for its legislative program for the 2006 session of the Virginia General Assembly for its favorable consideration and adoption. 1) Approve an amendment to the Roanoke County Charter as follows: Sec. 2.02 - Taxing powers. - In addition to the powers granted by other sections of the charter and general law, the county shall have the additional power to levy and collect taxes on cigarettes and tobacco products, pursuant to Section 58.1-3832 of the Code of Virginia. 2) Support the JLARC recommendations to address the shortfall in state funding for K-12 education and to fully fund the state Board of Education proposals. The estimated annual cost of funding both the JLARC recommendations and Board of Education proposals is $870 Million. 3) Support tax restructuring that grants localities additional revenue authority and increases local revenue diversification. Oppose efforts to limit or restrict local taxing authority and revenues, whether by restricting assessment authority or tax rates, exempting portions of fair market value increases, or other property tax limitations. 4) Support amending Sec. 33.1-72.1 to authorize counties to allow private roads not built to VDOT standards under local subdivision and zoning ordinances and still participate in the rural addition program with no financial loss or penalty. 5) Support additional state funding for transportation, and in particular, funding for improvements to 1-81, and funding for passenger and freight rail improvements. 1170 October 25, 2005 6) Support Telecommunications Tax restructuring so long as it protects the long-term fiscal interests of local governments and ensures a modern communications service tax policy that treats all corporate competitors equitably. Local governments must be guaranteed expanding communications service tax revenues in exchange for local right of entry and regulation, adequate consumer protection and services, and efficient local public safety E-911 call center operations. 7) Oppose the elimination of local cable television franchising authority. Where competition exists in a locality and where competing services reach a majority of citizens in a locality, then the competitive free market should be the major regulator of the quality and price of cable TV services. Basic elements should be preserved, including revenues to localities, sufficient tools to ensure quality of services expected by citizens, services such as PEG channels and facilities to provide such channels, and internet and cable to public facilities 8) Amend Sections 16.1-69.48 and 15.2-1716 to provide that the reimbursement of expenses incurred by localities in responding to DUI and other traffic incidents may be collected as a fee in the criminal or traffic infraction proceedings, and that such fee be paid directly into the treasury of the locality. 9) Support amending Section 9.1-106 to allow Roanoke County to charge a processing fee in criminal or traffic proceedings to support a criminal justice training academy. II. That the Clerk to the Board of Supervisors is directed to send a certified copy of this resolution to Senator John S. Edwards, Senator Brandon Bell, Delegate H. Morgan Griffith, Delegate Onzlee Ware, Delegate William Fralin; Mary F. Parker, Roanoke City Clerk; Members of the Roanoke City Council; Forest Jones, Clerk for Salem City Council; Members of the Salem City Council; Clerk for the Town of Vinton; Members of the Vinton Town Council and the Roanoke Valley-Alleghany Regional Commission, and the Virginia Association of Counties. On motion of Supervisor Flora to adopt the resolution with Item 4 amended to state: "Support amending Sec. 33.1-72.1 to authorize counties to allow private roads not built to VDOT standards under local subdivision and zoning ordinances and still participate in the rural addition program with no financial loss or penalty." The motion carried by the following recorded vote: October 25, 2005 1171 AYES: NAYS: Supervisors McNamara, Church, Wray, Flora, Altizer None IN RE: PUBLIC HEARINGS AND SECOND READING OF ORDINANCES 1. Withdrawn at the reauest of the petitioner. Second readina of an ordinance to obtain ª special use permit to construct an accessory aDartment on .43 acres located at 3652 Bond Street. Windsor Hills Maaisterial District. UDon the Detition of Thomas Q. Johnson. (Janet Scheid. Chief Planner) Chairman Altizer advised that this item has been withdrawn at the request of the petitioner. 2. Second readina of an ordinance to obtain ª sDecial use Dermit to construct mini-warehouses on 1.503 acres located at 2205 Washinaton Avenue. Vinton Maaisterial District. upon the petition of Winter ProDerties PartnershiD. LLC. (Janet Scheid. Chief Planner) 0-102505-4 Ms. Scheid reported that Winter Properties requests a special use permit for mini-warehouses and is proposing a 19,500 square foot, two-story building. The first floor would contain mini-warehouses and an office. The second floor would face Washington Avenue, would contain its own parking lot and entrance, and would be for retail use as allowed by-right in the C-2 district. She advised that no mini-warehouse related business would be located on the second floor of the building. The Planning 1172 October 25, 2005 Commission heard this petition on October 4 and recommended approval with the following condition: The mini-warehouse use is allowed on the first floor of the building only. Mr. Winter, the petitioner, advised that the lot is a sloping lot and therefore requires a two-story building. He indicated that the best use of a basement would be for the office and additional storage, and this is the proposed use for this space. Supervisor Altizer noted concerns regarding whether the additional construction will contribute to stormwater runoff on the adjacent Moose Lodge property. Ms. Scheid advised that at the Planning Commission meeting, a citizen from the Moose Lodge noted these concerns and Butch Workman, Roanoke County Drainage Engineer, addressed this issue. She stated that any stormwater issues will be resolved during site plan review. Mr. Winter stated that a building was constructed in October 2004 on the back half of this property and at that time, a substantial retention pond and stormwater runoff containment areas had to be constructed. He indicated that when this was done, the County required that all drainage be blocked so that the water and mud did not leave the area. He noted that on two occasions during the construction, there were heavy downpours and the retention pond overflowed into the storage facility lot and ran off into the Moose Lodge property. He stated that the concerns were short-lived, they have been addressed, and there have been no problems since that time. Mr. Winter further advised that the retention pond is in front of the building next to the gate. October 25, 2005 1173 Supervisor Altizer inquired if the site plan would dictate that any runoff would go to the detention pond. Mr. Winter stated that all runoff will be underground and if the County requires that the detention pond be made larger, there is adequate space to accommodate this change. Supervisor Wray noted that stormwater issues were addressed in the site plan, but he indicated that the report from the Planning Commission also indicates that it is not known if more stormwater would be created on the new site. Mr. Winter stated that he did not see how additional runoff could be created because there is a drop-off from the driveway to the site; therefore unless the detention pond overflows, there should not be a drainage problem. Supervisor Wray questioned if staff felt comfortable that these concerns will be taken care of during site plan review. Ms. Scheid responded in the affirmative, and stated that it will be reviewed and handled during site plan review which occurs following the rezoning. There were no citizens present to speak on this item. Supervisor Altizer advised that he has toured the site and his main concern was with stormwater runoff to the adjacent Moose Lodge site. He stated that following discussions with staff, it appears that any additional runoff which might result from the construction will be adequately handled by the detention pond. He further noted that the site review process also serves as a safety net to address any concerns. Supervisor Altizer moved to adopt the ordinance. The motion carried by the following recorded vote: 117 4 October 25, 2005 AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None ORDINANCE 102505-4 GRANTING A SPECIAL USE PERMIT TO CONSTRUCT MINI-WAREHOUSES ON 1.503 ACRES LOCATED AT 2205 WASHINGTON AVENUE (TAX MAP NO. 61.15-2-10) VINTON MAGISTERIAL DISTRICT, UPON THE PETITION OF WINTER PROPERTIES PARTNERSHIP, LLP WHEREAS, Winter Properties Partnership, LLP has filed a petition for a special use permit to construct mini-warehouses to be located at 2205 Washington Avenue (Tax Map No. 61.15-2-10) in the Vinton Magisterial District; and WHEREAS, the Planning Commission held a public hearing on this matter on October 4,2005; and WHEREAS, the Board of Supervisors of Roanoke County, Virginia, held a first reading on this matter on September 27, 2005; the second reading and public hearing on this matter was held on October 25, 2005. NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That the Board finds that the granting of a special use permit to Winter Properties Partnership, LLP to construct mini-warehouses to be located at 2205 Washington Avenue in the Vinton Magisterial District is substantially in accord with the adopted 2000 Community Plan, as amended, pursuant to the provisions of Section 15.2-2232 of the 1950 Code of Virginia, as amended, and said special use permit is hereby approved with the following condition: (1) Mini-warehouse use allowed on the first floor of the building only. 2. That this ordinance shall be in full force and effect thirty (30) days after its final passage. All ordinances or parts of ordinances in conflict with the provisions of this ordinance be, and the same hereby are, repealed. The Zoning Administrator is directed to amend the zoning district map to reflect the change in zoning classification authorized by this ordinance. On motion of Supervisor Altizer to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None October 25, 2005 1175 3. Second reading of an ordinance to rezone aDDroximatelv 9.95 acres from R-1. Low Density Residential District. to PRD. Planned Residential District with conditions. to construct 60 townhomes at ª density not to exceed 6.1 units Der acre located at the corner of Newland Road and Peters Creek Road. Hollins Magisterial District. UDon the Detition of R. Fralin DeveloDment CorDoration. (Janet Scheid. Chief Planner) 0-102505-5 Ms. Scheid stated that this petition requests rezoning of 9.95 acres from R-1 to Planned Residential Development (PRD). The applicant is proffering a maximum of 60 townhouse units within the overall master plan. Also included is a proffer donating property that would provide a portion of a long-anticipated regional drainage facility. When this came to the Planning Commission on August 16, it was slightly different than what is being presented tonight. At that time, the petitioners were proposing that their main vehicular access to the project would be through the existing Crosstimbers Trail with an exit only access from Newland Road. In August, the Planning Commission made an unfavorable recommendation to the Board of Supervisors and most of their concerns centered on the traffic and disruption that the access on Crosstimbers Trail would cause. A citizens meeting was held in July prior to the Planning Commission meeting, and approximately 40 citizens attended. The predominant concerns voiced at that time were about traffic on Crosstimers Trail. After the Planning Commission 1176 October 25, 2005 meeting, the petitioners re-thought their application and are now presenting a proposal and a proffered concept plan that shows their sole access will be from Newland Road. In addition to the 60 townhouse units proposed, the internal roads will be private roads, sidewalks and walking trails are proposed, one-story town homes are planned at a minimum building size of 1,150 square feet, and two-story units are proposed at a minimum size of 1,900 square feet. Ms. Scheid advised that the petitioner has expressed a willingness to make a fee simple donation to Roanoke County of floodway and flood plain property along the northeast boundary of this site to go toward the creation of a regional stormwater management facility. This future regional stormwater management facility would help relieve downstream drainage and flooding problems along the west fork of Carvins Creek, particularly along Dent Road, Williamson Road, Verndale Road, and Palm Valley Road. Following the Planning Commission meeting and the revision of the site plan to reflect the change in access, an additional community meeting was held. Ms. Scheid reported that the Planning Commission made an unfavorable recommendation on August 16; however, the proffered conditions that are before the Board tonight are as follows: (1) The property shall be developed in substantial compliance with the rezoning document titled "Villas of the Valley, A Planned Residential Retirement Community" prepared by Balzer and Associates, Inc. dated June 24, 2005; revised July 12, 2005; revised July 16, 2005; and revised September 15, 2005, which is the concept plan that shows the sole access being from Newland Road; October 25, 2005 1177 (2) Not more than 60 total residential units shall be constructed on this site; and (3) A fee simple donation of property or a stormwater management easement for the creation of a regional stormwater management facility shall be granted to the County of Roanoke. Supervisor Church questioned how many citizens attended the second community meeting regarding this matter. Ms. Scheid reported that the initial meeting held in July was overwhelming attended by residents who were dissatisfied with the Crosstimbers Trail access. The second meeting was not well attended and she indicated that the residents were aware of the change in the concept plan that removed Crosstimbers Trail as the access point. She advised that some residents of the Newland Road area were present and were not happy with the new proposed access, but she noted that there are fewer residents on Newland Road than on Crosstimbers Trail. Supervisor McNamara inquired if the lots on Newland Road closest to Peters Creek Road are vacant lots. Ms. Scheid indicated that the two lots owned by the developer are both vacant. Mr. Sean Moore, Balzer and Associates, advised that there is one additional proffer concerning the project and he presented a signed, revised site plan. Mr. Mahoney stated for the record that the signed proffer was submitted prior to the public hearing, therefore it satisfies the statutory requirements. 1178 October 25, 2005 Mr. Moore stated that this is a 60 unit townhouse development that is being rezoned for planned residential development. He advised that the petitioner wanted to take advantage of the developable portion of the property and this is being accomplished through the flexibility allowed in the PRD zoning. In return, the petitioner is offering 40% open space, preservation of steep slopes and wooded areas, and dedication of a stormwater management easement for Roanoke County. He stated that the project provides an excellent transition from the adjacent C-2 zoning in the Peters Creek Road area and the adjacent single-family residential development; it is also supported in the comprehensive plan as a transitional area. Mr. Moore stated that the initial access was from Crosstimbers Trail and this proposal was heavily resisted by the neighborhood. He noted that the residents supported the use and type of development; therefore, they re-designed the access to be from Newland Road in order to be responsive to the residents concerns. He noted that the new access is at the entrance to Newland Road and does not create additional thru-traffic on Newland Road. He indicated that there was still opposition from Newland Road residents and the petitioner wanted to address these concerns. He advised that citizens have voiced concerns about traffic stacking up on Newland Road and the resulting difficulties of accessing Peters Creek Road, as well concerns regarding the steepness of the drive. Mr. Moore indicated that from an engineering standpoint, the driveway design was examined and it was determined that it can be developed as indicated. In order to address the traffic concerns, the proffered traffic plan, which was presented today, was developed and will October 25, 2005 1179 be implemented subject to VDOT approval. This will add an additional lane on Newland Road from Peters Creek Road to their project entrance. He stated that on the upper end toward the entrance, there will be a right turn lane into the project. A right hand turn lane on Newland Road to allow access onto Peters Creek Road will also be added. He advised that all improvements will be per VDOT approval. Supervisor Wray stated that he was pleased that the petitioner was addressing the safety concerns voiced by the citizens with the proffered site plan. He referenced the 45 foot maximum height of the structure, and questioned if it is anticipated to be closer to 35 feet. Mr. Moore advised that 45 feet is the maximum height on the rear of a two-story building; the 35 foot height is the front elevation. Supervisor Wray requested that Mr. Moore address the stormwater management situation. Mr. Moore noted the location of the stormwater management ponds on the map and advised that they will be broken up into several smaller areas. In response to a further inquiry from Supervisor Wray, he advised that the ponds will be self-contained. There were no citizens present to speak on this item. Supervisor Flora noted that there has been significant input on this project, and he advised that the fact that no citizens were present to speak at tonight's meeting was due to the efforts by Mr. Fralin to address the residents concerns. He stated that the entrance will improve the quality of the project, and he commended Mr. Fralin for listening and responding to the citizens. 1180 October 25, 2005 Supervisor Wray also commended Mr. Fralin for his efforts in addressing the citizens concerns. Supervisor Altizer voiced support for the proposed regional stormwater detention pond and donation of the easement. Supervisor Flora moved to adopt the ordinance with the proffered conditions and with the proffered conceptual site plan submitted on October 25 prior to the public hearing. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None ORDINANCE 102505-5 TO REZONE APPROXIMATELY 9.95 ACRES FROM R-1, LOW DENSITY RESIDENTIAL DISTRICT, TO PRD, PLANNED RESIDENTIAL DEVELOPMENT WITH CONDITIONS, TO CONSTRUCT 60 TOWN HOMES AT A DENSITY NOT TO EXCEED 6.1 UNITS PER ACRE LOCATED NORTHWEST OF THE CORNER OF NEWLAND ROAD AND PETERS CREEK ROAD (TAX MAP NOS. 26.20-4-1, 2, 3, AND 4), HOLLINS MAGISTERIAL DISTRICT UPON THE APPLICATION OF R. FRALIN DEVELOPMENT CORPORATION WHEREAS, the first reading of this ordinance was held on July 26, 2005, and the second reading and public hearing were held September 27, 2005 and continued to October 25,2005; and, WHEREAS, the Roanoke County Planning Commission held a public hearing on this matter on August 16, 2005; and WHEREAS, legal notice and advertisement has been provided as required by law. BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That the zoning classification of a certain tract of real estate containing approximately 9.95 acres, as described herein, and located northwest of the corner of Newland Road and Peters Creek Road (Tax Map Numbers 26.20-4-1, 2, 3, and 4) in the Hollins Magisterial District, is hereby changed from the zoning classification of R-1, October 25, 2005 1181 Low Density Residential District, to the zoning classification of PRD, Planned Residential Development with conditions. 2. That this action is taken upon the application of R. Fralin Development Corporation. 3. That the owner of the property has voluntarily proffered in writing the following conditions which the Board of Supervisors of Roanoke County, Virginia, hereby accepts: (1) The property shall be developed in substantial compliance with the rezoning document titled "Villas of the Valley, A Planned Residential Retirement Community" prepared by Balzer and Associates, Inc. dated June 24, 2005; revised July 12, 2005; revised July 26, 2005; revised September 15, 2005; revised October 25,2005. (2) Not more than 60 total residential units shall be constructed on this site. (3) A fee simple donation of property or a storm water management easement for the creation of a regional storm water management facility shall be granted to the County of Roanoke. The donation/easement shall consist of approximately 1 acre of land located along the northern property line and adjacent to the existing creek. 4. That said real estate is more fully described as follows: Tax Map Nos. 26.20-4-1,2,3, and 4 containing approximately 9.95 acres 5. That this ordinance shall be in full force and effect thirty (30) days after its final passage. All ordinances or parts of ordinances in conflict with the provisions of this ordinance be, and the same hereby are, repealed. The Zoning Administrator is directed to amend the zoning district map to reflect the change in zoning classification authorized by this ordinance. On motion of Supervisor Flora to adopt the ordinance with the proffered conditions and with the proffered conceptual site plan submitted on October 25 prior to the public hearing. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None 4. Second reading of an ordinance to consider sDot bliaht abatement of DroDerty located at 3821 Colonv Lane. Cave Spring Maaisterial District. UDon the Detition of the Roanoke County Building Commissioner. (Janet Scheid. Chief Planner) 0-102505-6 1182 October 25, 2005 Ms. Scheid advised that the Building Commissioner reported to the Planning Commission on October 4 that the repairs to the home have been substantially completed; however, issues with exterior storage and clutter of the property remain a concern in spite of several contacts being made to attempt to remedy this situation. The Planning Commission has confirmed the blighted designation of the property, determined that the owner has failed to remedy the blighted conditions, and has forwarded the matter to the Board of Supervisors for consideration and disposition. She advised that Joel Baker, Building Commissioner, was present at the meeting to answer any questions. Mr. Baker advised that as of today, there are signs of returning clutter and improper storage of personal property outside the home. He noted that the owner has moved back into the property, and referenced a 20-year history of zoning violations relative to this property. Supervisor Wray stated that this has been ongoing for the past three years and no one can say that the County has not been compassionate regarding this matter. He advised that numerous letters have been sent trying to rectify the situation, but there comes a time when the County must determine a course of action to be taken. He noted that this is not eminent domain, it is blight abatement, and the Board will take whatever legal action is necessary to protect Roanoke County expenses related to this action. He stated that the County needs to set a time limit and move forward with the necessary action to finish this project. October 25, 2005 1183 Supervisor Flora stated that there is more to blight than the structure; it is everything that occurs on a piece of property that has a blighting influence on the neighborhood. He stated that the Board has afforded the owner every opportunity to clean up the property, and he indicated that this is a very nice neighborhood. He stated that this property is a deteriorating factor for the neighborhood, and he voiced support for moving forward with the necessary actions to remedy the problem. Supervisor Altizer inquired if the owner of the property was present. Mr. Baker responded in the negative. Supervisor Altizer inquired if the property owner has attended the Planning Commission meetings. Ms. Scheid advised that the owner was present at the original hearing, but has not made a personal appearance since that time. Supervisor Altizer stated that the citizens are justified in asking that this matter be resolved, and he noted that there has been sufficient time for the owner to address the situation. There were no citizens present to speak on this item. Supervisor Wray requested that Mr. Baker continue to provide an update regarding the status of this property. Supervisor Wray moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None 1184 October 25, 2005 ORDINANCE 102505-6 TO CONSIDER SPOT BLIGHT ABATEMENT OF PROPERTY LOCATED AT 3821 COLONY LANE, CAVE SPRING MAGISTERIAL DISTRICT, UPON THE PETITION OF THE ROANOKE COUNTY BUILDING COMMISSIONER WHEREAS, the Board of Supervisors of Roanoke County, Virginia, has adopted a Spot Blight Abatement policy pursuant to §36-49.1: 1 of the Code of Virginia, 1950, as amended; and WHEREAS, pursuant to this process, the Roanoke County Building Commissioner has made a preliminary determination that property located at 3821 Colony Lane is blighted in accordance with this policy; and WHEREAS, the Roanoke County Planning Commission held a public hearing on October 4, 2005, and has determined that the property is blighted, the owner has failed to remedy this blighting condition, and that the plan to remedy the blight is in accordance with the County's Planning and Land Use Guidelines; and WHEREAS, the first reading of this ordinance was held on February 22, 2005; and the second reading and public hearing was held on October 25,2005; and NOW, THEREFORE, BE IT ORDAINED by the Board of Supervisors of Roanoke County, as follows: 1. That the Board affirms the findings and recommendations of the Planning Commission. 2. That the Board authorizes and approves that the Department of Community Development take such actions as may be necessary to remove and remedy the blighting conditions, including but not limited to removal of the outside storage, clutter and trash. 3. That the owner of this property shall be billed for the cost of blight abatement including administrative costs. If the owner fails to pay for the abatement costs, these costs shall be submitted to the Treasurer of Roanoke County to be collected by any manner provided by law for collection of local taxes. Further, a lien shall be recorded among the land records of Roanoke County to recover the County's costs and expenses. 4. That the Board determines that it is not necessary to acquire this property by eminent domain in order to cure the blight. On motion of Supervisor Wray to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None October 25, 2005 1185 5. Second readina of an ordinance to amend the Roanoke County Zoning Ordinance. Section 30-29-5 commercial use types. to include ª new definition for "adult business". and Section 30-54- 2(8)2 C-2 General Commercial to add adult business as ª use allowed only !rl special use permit and Section 30-85- to add additional use and desian standards for adult businesses UDon the Detition of the Board of SUDervisors. (Paul Mahoney. County Attorney) 0-102505-7 Mr. Mahoney advised that this is the second reading of this ordinance which is a two-part initiative. Item S-5 on today's agenda is the proposed ordinance that would amend Chapter 30 of the County Code (zoning ordinance) and Item S-6 would amend Chapter 13 (miscellaneous offenses provision of the County Code). He stated that this ordinance is an amendment to the zoning ordinance that attempts to place some regulatory limits on the operation and location of certain defined adult businesses. More specifically, the location provisions in the zoning ordinance are designed to address the illegal secondary effects that appear to surround certain lawful businesses. Mr. Mahoney stated that those illegal secondary effects are prostitution, drug dealing, sexual offenses, and sexual offenses against minors. He noted that the Board must also respect the First Amendment rights guaranteed in the U. S. Constitution and what is being proposed is not an attempt to limit the content of speech, but rather to put in 1186 October 25, 2005 place content-neutral regulations designed to address illegal secondary effects. He noted that speech has been broadly defined by the courts and includes written materials and symbolic speech. Mr. Mahoney outlined the following provisions of the ordinance: (1) Allow certain adult uses in the C-2 zoning district, but the permission is subject to the following restrictions: (a) A special use permit (SUP) is required; (b) Use and design standards have been included which attempt to address the external activities that surround these types of uses, i.e., window advertising, signage, security and lighting elements in the parking lots; and (c) It establishes an "exclusionary zone" of 300 feet away from day care centers, schools, churches, and a variety of other residential zoning classifications. He stated that this ordinance attempts to place some restrictions on the location of these types of businesses. Mr. Mahoney also presented a map illustrating how the 300 foot exclusion zone would work in Roanoke County, and he noted that the only area subject to a SUP application would be the areas shown in purple. The yellow areas designate the C-2 zones which are excluded. He stated that this matter has been discussed with the Planning Commission in work sessions and in a public hearing, and he noted that the Planning Commission increased the size of the exclusion zone to the current distance of 300 feet. The Planning Commission also added the requirement of a special use permit which is recommended to the Board for favorable consideration. Supervisor Church requested that Mr. Mahoney note the areas on the map where it would be possible to locate these businesses. Mr. Mahoney referenced October 25, 2005 1187 the areas shown in purple on the map and advised that less than 150/0 of C-2 real estate would be eligible for application under the special use permit process. Mr. Mahoney stated that of the 1,115 parcels in Roanoke County that are zoned C-2, approximately 232 parcels (14.80/0) are eligible for this type of use. Supervisor Flora inquired if Hollins College is considered an educational facility. Mr. Mahoney responded in the affirmative. Supervisor Flora noted that the Hollins College property is not shown as yellow on the map. Mr. Mahoney stated that 300 feet is approximately the length of a football field. He noted that one of the difficulties in drafting this type of legislation is that many of the ordinances of this nature that are already in place are from larger cities. He indicated that this distance is more applicable in an urban area versus a more rural, agricultural area. Supervisor Wray stated that there is a lot of purple area in the Cave Spring District, and he questioned why the 300 foot radius was chosen. He referenced the area near Burlington and Clearbrook Elementary Schools, and advised that 300 feet is not a significant distance. He questioned why it was not 600 feet or 1,800 feet. Mr. Mahoney advised that he and Gary Coleman, GIS Coordinator, calculated various distances and their objective was to draft an ordinance that could be upheld in court. He stated that with the 300 foot exclusion zone, 14.8% of C-2 property is available for an SUP application. When this distance is increased to 500 feet, less than 1 % or .09% is available which consists of only 115 parcels. Mr. Mahoney advised that he would have a difficult time defending this limited availability of parcels to a federal judge, and 1188 October 25, 2005 that staff is trying to come as close as possible to providing citizens with a solid line of protection, while at the same time trying to strike an appropriate balance. Supervisor Wray stated that the distance of a football field is nothing, and there are day care centers that are in the center of C-2 zoning. He voiced concerns about the 300 foot limit. He advised that he would support increasing the 300 foot exclusion area. Mr. Mahoney indicated that the Planning Commission struggled with the same issue, and he referenced comments made by Martha Hooker, Chair of the Planning Commission, in the transmittal report. Supervisor McNamara questioned if a similar ordinance has been to the 4th Circuit Court and upheld. Mr. Mahoney stated that this ordinance and its companion, Item S-6, are very similar to ordinances that Henrico, Chesterfield, and Prince William Counties have utilized. Item S-6, which relates to the licensing provision, has been upheld by the Virginia Court of Appeals on a challenge in Henrico County. Supervisor McNamara questioned if any other localities utilize a SUP process as part of their zoning ordinance. Mr. Mahoney indicated that some localities do and others do not. Some permit it by right with different distances; however, most of these are in larger cities which have different development patterns than Roanoke County. He stated that in Roanoke County, most of our commercial development is linear and runs along major highways. In cities, they have a larger central core area so a 500 foot exclusion zone would not place this type of activity close to a residential area. Mr. Mahoney stated that October 25, 2005 1189 this difference makes it more difficult to compare their central core business districts with the development patterns in the County. Supervisor McNamara inquired if there have been zoning ordinances such as this challenged in Virginia. Mr. Mahoney responded in the negative. In response to a further inquiry from Supervisor McNamara, Mr. Mahoney concurred that staff is using their best educated guess in drafting the ordinance. Supervisor McNamara stated that it might make the Board feel better to make the restrictions tougher; but if it is tougher and not defensible, then we have not accomplished anything other than making ourselves feel better. He stated that this is a good course of action, particularly with the inclusion of the SUP. He noted that there is currently not an adult business marketplace within Roanoke County, and stated that this type of defensible ordinance with a SUP is a reasonable step. Supervisor Altizer voiced concerns regarding the 300 foot exclusion, but stated that he recognizes the need to make the ordinance defensible. He inquired if there is any limit on the number of businesses that can locate in a particular zone. Mr. Mahoney responded in the negative. Supervisor Altizer noted it would be possible to have multiple businesses of this type consolidated in one area, and inquired if staff considered limiting the distance between these types of businesses. Mr. Mahoney stated that there are two types of approaches used: (1) A dispersion ordinance - Roanoke City has an additional provision that states if you have one adult business, you cannot have another within a certain distance. (2) A concentration ordinance - some 1190 October 25, 2005 localities try to concentrate or cluster these businesses in one area. Mr. Mahoney stated that in discussions with police officers regarding enforcement, they recommend limiting these types of activities to one, well-lit, busy area because it is easier to conduct surveillance. He stated that this theory would support concentrating these businesses in one location. Mr. Mahoney noted that one of the benefits of the SUP process is that it allows the Board to review each application on a case by case basis and decisions can be based on the history of the prior businesses. Supervisor Altizer voiced concerns about the potential clustering of multiple businesses of this type in one area, and noted that it could be across the street from a school. Supervisor Church stated that he would prefer not to be discussing this situation. He voiced support for increasing the distance to 500 feet or greater. He further stated that the County should take whatever steps are needed in order to contest this or block it, and we should not be trying to figure out how we can be successful by achieving a certain percentage; we should take a stand and do what is right for the people we represent. He indicated that the larger the area which is excluded, the better. Supervisor McNamara stated that the Board is worried about clustering or dispersion, and yet Roanoke County does not currently have any adult businesses. He noted that there will be a SUP process in place and the Board does not have to approve any permits that are not in a suitable location. October 25, 2005 1191 Supervisor Flora stated that the Board would like to be able to adopt an ordinance that would preclude them from ever having to vote on this issue again; however, they must find a balance between what can be done legally and at the same time accomplish the Board's objective. He stated that many times, these ordinances not only regulate but they deter and he indicated that the deterrent will be more critical in this instance than the regulation factor. He advised that most of these businesses do not welcome public exposure, and stated that he would rather the court contest the Board's vote on the SUP than to test the legality of the ordinance if the exclusion area is made too large. He voiced support for the ordinance as drafted and stated that it is probably the best that can be done within the limitations we are facing. Supervisor Wray stated that the distance is not something he is doing to make himself feel good. He inquired if the limit is increased to 500 feet, would there still be a SUP requirement. He stated that he does not understand how the logic of 1 % versus 14.80/0 of land available is applicable. Mr. Mahoney advised that there are two types of challenges to these regulations that he can foresee: (1) Regardless of the exclusion zone distance, there may be a question regarding whether the Board acted arbitrarily with respect to granting or denying a specific SUP. (2) Someone could challenge the ordinance before they have even made an application or gone through the SUP process. In this situation, a person could argue that the ordinance is a "joke" because it is clear that the Board has, for all intents and purposes, eliminated their ability to operate a lawful business. The ordinance is, on its face, then deemed to be 1192 October 25, 2005 unconstitutional. Mr. Mahoney advised that if there are 14.8% of the parcels in Roanoke County available for this type of use, the latter argument is not as valid. The following citizen spoke regarding this item: James Garris, 3108-D Honeywood Lane, stated that Roanoke County needs a physical separation of adult business items. He stated that if Spencer gifts wanted to locate in Tanglewood Mall, it could do so without going through this process. He referenced the types of items that are sold in this store, and advised that identification should be required to view these items. He also voiced objections to clustering these businesses in one area, and advised that the Route 419 area is the County's central business area and residents do not want to see these types of businesses in this area. He requested that the Board adopt a set of ordinances that he believes embodies the values and character of the community, and he stated that he hopes such ordinances would be defensible. He requested that the Board direct the staff to make the ordinance more inclusive to address these concerns. Supervisor Church stated that many years ago, there was no market for Coke except Coca-Cola. He stated that the Board is trying to put themselves in the position where they can make the decision that their citizens want them to make. Supervisor McNamara stated that the Board needs to trust the expertise of staff because they have a better idea of what is defensible in court. He indicated that the SUP will allow the Board a greater line of defense than an ordinance that effectively October 25, 2005 1193 eliminates the location of any businesses of this type. He stated that he understands the concerns, but he feels that staff has drafted a good ordinance. Supervisor McNamara moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Flora, Altizer NAYS: Supervisor Wray ORDINANCE 102505-7 AMENDING THE ROANOKE COUNTY ZONING ORDINANCE, SECTION 30-29-5. COMMERCIAL USE TYPES TO INCLUDE NEW DEFINITION FOR "ADULT BUSINESS" AND SECTION 30-54-2(B)2 C-2 GENERAL COMMERCIAL TO ADD ADULT BUSINESS AS A USE ALLOWED ONLY BY SPECIAL USE PERMIT AND SECTION 30-85-_ TO ADD ADDITIONAL, USE AND DESIGN STANDARDS FOR ADULT BUSINESSES WHEREAS, the first reading of this ordinance was held on September 27, 2005, and the second reading and public hearing was held on October 25, 2005. NOW, THEREFORE, BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That Section 30-29-5. Commercial Use Types of the Roanoke County Zoning Ordinance be amended to read and provide as follows: * * * * "Adult business" means any adult bookstore, adult video store, adult model studio, adult motel, adult movie theater, adult nightclub, adult store, business providing adult entertainment, or any other establishment that regularly exploits an interest in matter relating to specified sexual activities or specified anatomical areas or regularly features live entertainment intended for the sexual stimulation or titillation of patrons, and as such terms are defined in Chapter 13 of this Code. * * * * 2. That Section 30-54-2. (B) 2. Permitted Uses of the Roanoke County Zoning Ordinance only by Special Use Permit be amended to read and provide as follows: * * * * (8).2. Adult Business* * * * * 1194 October 25, 2005 3. That Article IV Use and Design Standards, Section 30-85 of the Roanoke County Zoning Ordinance be amended to read and provide as follows: Sec. 30-85- Adult Business (A) General Standards: 1. Sexually explicit material shall not be displayed in the windows of adult businesses. Further, adult merchandise as defined in Chapter 13, Section 13-100, shall not be visible from any point outside the establishment. 2. Signs advertising the adult business and any attention-getting devises shall not display sexually explicit pictures or language. 3. All off-street parking areas of the adult business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one foot candle of light on the parking surface and walkways. Adequate lighting shall also be provided for all entrances and exists serving the adult business. 4. Adult businesses shall not employ any person under the age of 18. 5. Wide angle mirrors and/or video systems must be used to provide the manager with continuous monitoring of all areas of the establishment. 6. The owner or operate shall install, operate and maintain a security camera and video tape system designed by a security specialist which shall continuously monitor all exterior entrances and parking areas of the establishment. Such cameras shall provide clear imagery of the establishment's patrons and their vehicles. Tapes recording activities in the areas under surveillances shall be preserved for a period of 12 months. Authorized representatives of the police department or the Community development department shall have access to such tapes in accordance with applicable law. 7. No adult business shall be located within 300 feet of a public or private licensed day care center, educational facilities, primary/secondary, religious assembly, or R-1, R-2, R-3, R-4, PRD or R-MH Districts. * * * * 4. That this ordinance shall be in full force and effect from and after its passage. On motion of Supervisor McNamara to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors McNamara, Church, Flora, Altizer NAYS: Supervisor Wray Supervisor Wray stated that he trusts legal counsel, but he feels strongly that if Roanoke County is going to open the door, we should be ready to accept what happens. October 25, 2005 1195 Supervisor Flora stated that some of the Board members are having difficulty voting "yes" for this item not because they do not want the regulations, but because sometimes what they feel is politically correct is not always legally defensible. This may be one of those Catch 22 situations. Supervisor Altizer stated that Roanoke County has to have an ordinance and everyone agrees that this is a "best guess" of what is defensible. He advised that he feels the SUP provides a safety net, and he would rather be challenged on the SUP than the overall ordinance. He noted continuing concerns regarding clustering of these types of businesses, and stated that he will consider this before granting any SUP requests. 6. Second readina of an ordinance to amend the Roanoke County Code ~ the addition of Article ill:. "Adult Businesses" to ChaDter 13. "Offenses - Miscellaneous". (Paul Mahoney. County Attorney) 0-102505-8 Mr. Mahoney reported that the ordinance in Item S-5 addresses location issues; this ordinance acknowledges that the location power is not enough. He advised that this ordinance sets out a strict licensing process which requires application for a license to the Chief of Police and focuses on the owner/operator of the business. In looking at court decisions in this area, he advised that the locality must have specific standards for denying or revoking the license, and must also establish an appeal 1196 October 25, 2005 process. He stated that the first four pages of the ordinance set forth a legislative history which focuses on the essence of the Board's obligation which is protecting public safety, health, and welfare. It also sets forth specific prohibitions in terms of public indecency and he stated that with respect to the issue raised by Mr. Garris, on Page 12 of the ordinance, Item G limits the age of a patron to 18 years. He advised that this is the second part of a two-part approach to regulate problems that may arise from these types of businesses. He stated that this ordinance was reviewed by the Commonwealth Attorney and Chief of Police, and both are in support of the action. He noted that Title 18.2 of the State Code has specific provisions dealing with obscenity, and this is not designed to replace those regulations. Supervisor Wray stated that Mr. Mahoney covered a lot in this ordinance and presented detail which will be defensible. Mr. Mahoney expressed appreciation to Randy Leach, Commonwealth Attorney, and the staff in his office for their input on this ordinance. James Garris, 3108-D Honeywood Lane, stated that with respect to minors, there are specific examples of like businesses that will not be affected. The provision for 18 year olds coming into a business is different than the example of a child entering Spencer's gifts. He stated that for the peep shows, these ordinances will address the concerns raised; however, it is no longer the adult book stores alone that carry adult-related items and he feels that the Board should take a broader look at this October 25, 2005 1197 issue. He stated that the examples he has cited will bypass this process, and he questioned whether Hooter's or Spencer's could bypass this process. Supervisor McNamara moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None ORDINANCE 102505-8 AMENDING THE ROANOKE COUNTY CODE BY THE ADDITION OF ARTICLE III. "ADULT BUSINESSES" TO CHAPTER 13. "OFFENSES - MISCELLANEOUS WHEREAS, the first reading of this ordinance was held on September 27, 2005, and the second reading and public hearing was held on October 25,2005; and WHEREAS, sexually-oriented businesses require special supervision from the public safety agencies of the County in order to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as well as the citizens of the County; and WHEREAS, the Board of Supervisors finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the County which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens; and WHEREAS, licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation; and WHEREAS, there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values; and WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and 1198 October 25, 2005 WHEREAS, the Board desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS, the County has determined that locational criteria found in the zoning ordinance, standing alone, do not adequately protect the health, safety, and general welfare of the people of this County; and WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the secondary effects of sexually oriented businesses; and WHEREAS, it is not the intent of the Board to condone or legitimize the distribution of obscene material, and the Board recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state law enforcement officials to enforce state obscenity statutes against any such illegal activities in the County. (A) Purpose. It is the purpose of this ordinance to regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the County, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the County. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material. (B) Findinas. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Board, and on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Pap's A.M., TDA "Kandyland", 529 U.S. 277 (2000), and City of Los Angeles v. Alameda Books, Inc. 121 S. Ct. 1223 (2001) and on studies in other communities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on findings from the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the Board finds: (1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the October 25, 2005 1199 establishments. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises. (2) Certain employees of sexually oriented businesses defined in this ordinance as adult theatres and cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments. (3) Sexual acts occur at sexually oriented businesses. (4) Offering and providing such space encourages such activities, which creates unhealthy conditions. (5) Persons frequent certain adult theatres, adult businesses, and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses. (6) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (H IV-AI DS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections. (7) Since 1989 when the human immunodeficiency virus (HIV) became reportable, the number of reported cases of AIDS caused by HIV in the Commonwealth of Virginia has increased from approximately 100 to approximately 800 in 2004. (8) Although the number of cases of syphilis and gonorrhea peaked in the Commonwealth of Virginia in 1990 the number of cases still remains high. (9) The number of cases of chlamydia in the Commonwealth of Virginia have increased from approximately 6,000 in 1989 to over 19,000 in 2003. (10) The surgeon general of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn. (11) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. (12) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities. (13) The findings noted in paragraphs number 1 through 12 raise substantial governmental concerns. (14) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns. (15) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operators to see that the sexually oriented business is run in a manner consistent with the health, safety and welfare of its patrons 1200 October 25, 2005 and employees, as well as the citizens of the County. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein. (16) Requiring sufficient lighting on premises of adult businesses advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in and around such adult businesses. (17) Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments. (18) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases. (19) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this ordinance is designed to prevent or who are likely to be witnesses to such activity. (20) The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this ordinance. (21) The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases. (22) The general welfare, health, morals and safety of the citizens of the County will be promoted by the enactment of this ordinance. BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That a new Article III. "Adult Businesses" be, and hereby is, added to Chapter 13. "Offenses - Miscellaneous" to read and provide as follows: Sec. 13-100. Definitions. Adult business means any adult bookstore, adult video store, adult model studio, adult motel, adult motel theater, adult nightclub, adult store, business providing adult entertainment, or any other establishment that regularly exploits an interest in matter relating to specified sexual activities or specified anatomical areas or regularly features live entertainment intended for the sexual stimulation or titillation of patrons. Adult entertainment means dancing, modeling or other live entertainment if the entertainment is characterized by an emphasis on specified sexual activities or specified anatomical areas or is intended for the sexual stimulation or titillation of patrons; or the October 25, 2005 1201 showing of films, motion pictures, videotapes, slides, photographs, CD-ROMs, DVD- ROMs, or other media that are characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Adult merchandise means magazines, books, other periodicals, videotapes, films, motion pictures, photographs, slides, CD-ROMS, DVD-ROMS, virtual reality devices, or other similar media that are characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; instruments, devices or paraphernalia either designed as representatives of human genital organs or female breasts, or designed or marketed primarily for use to stimulate human genital organs; or, lingerie or leather goods marketed or presented in a context to suggest their use for sadomasochistic practices. Adult model studio means a commercial establishment, including a lingerie store or novelty store, in which a person performs or simulates specified sexual activities, exposes specified anatomical areas, or engages in other performances intended for the sexual stimulation or titillation of patrons. Adult motel means a motel, hotel, or similar commercial establishment that: (i) provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of specified sexual activities or specified anatomical areas and advertises the availability of this sexually-oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; or (ii) offers a sleeping room for rent for a time period of less than ten hours; or (iii) allows a tenant or occupant to sub rent the sleeping room for a time period of less than ten hours. Adult movie theater means an enclosed building regularly used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons, excluding movies that have been rated "G," "PG," "PG-13," or "R" by the Motion Picture Association of America. Adult nightclub means a restaurant, bar, club, or similar establishment that regularly features adult entertainment. Adult store means an establishment having adult merchandise as a substantial or significant portion of its stock-in-trade. 1202 October 25, 2005 Employee means an individual working or performing services for any adult business, including any independent contractor who provides services on behalf of any adult business to the patrons of such business, whether or not the individual receives any remuneration, gratuity, or tips of any kind, or pays the permittee or manager for the right to perform or entertain in the adult business. Live entertainment means entertainment provided in person including, but not limited to, musical performances, music played by disc jockeys, public speaking, dramatic performances, dancing, modeling, or comedy performances. Specified anatomical areas means less than completely and opaquely covered human genitals, pubic region, buttock, or female breast below a point immediately above the top of the areola; or human male genitals in a discernibly turgid state, even if completely and opaquely covered. Specified sexual activities means human genitals in a state of sexual stimulation or arousal; sexual intercourse or sodomy; or fondling or other erotic touching of human genitals, pubic region, buttock or female breast, including masturbation. Sec. 13-101. Permit required from chief of police-Application; issuance; duration; renewal. (a) Every person either operating or desiring to operate an adult business, in addition to obtaining any required business license from the commissioner of the revenue, shall apply to the chief of police, or his designee, for a permit to conduct such activity. Each such application shall be accompanied by a fee in the amount of $500.00. (b) Information required on and with the permit application shall include, but not be limited to, the following: (1) The applicant's full name, age, sex, race, weight, height, hair and eye color, address, telephone number, date and place of birth and social security number. (2) Names and addresses of references. (3) Whether the applicant has been convicted of any felony or misdemeanor and, if so, the nature of the offense, when and where convicted and the penalty or punishment assessed. (4) Whether the applicant holds or has been held, in the name of this business or any other, any other permits under this ordinance or a similar adult use ordinance from another locality within the past five years, and, if so, the names and locations of such other permitted businesses. (5) Whether the applicant has been denied a permit or has had a permit revoked under any statute or ordinance requiring a permit to operate an adult business and, if so, when and where the denial or revocation occurred. October 25, 2005 1203 (6) Photograph and fingerprints of applicant. (7) Name, including any fictitious names, and address of the business for which a permit is sought. (8) A criminal records check of the applicant shall be provided by the applicant with the application, along with the applicant's written authorization to investigate whether the information provided by the applicant is true. (9) A description of the intended business activity and, if adult entertainment is to be performed, a detailed description of such entertainment. (10) Written declaration, dated and signed by the applicant, certifying that the information contained in the application is true and correct. (c) For a corporation, partnership or other legal entity, "applicant" includes each officer, director, partner or principal of the entity and the managers of the business. (d) The chief of police or his designee shall act on the application within 30 days of the filing of an application containing all of the information required by this section, unless information requested from other law enforcement agencies is not received within that 30-day period, in which case the chief of police or his designee shall have an additional 30 days to act on the application. Upon the expiration of the application time period, unless the applicant requests and is granted a reasonable extension of time, the applicant may, at its option, begin operating the business for which the permit is sought, unless and until the chief of police or his designee notifies the applicant of a denial of the application and states the reasons for denial. (e) The applicant shall be issued a permit unless the county's investigation or the information furnished by the applicant shows any of the following: (1) The applicant has failed to provide information required by this article or has falsely answered a question. (2) The applicant has been convicted of a felony within the past five years. (3) The applicant has been convicted of a crime of moral turpitude or a crime involving the obscenity laws within the past three years. (4) The applicant has been denied a permit or has had a permit revoked within the past 12 months under any statute or ordinance requiring a permit to operate an adult business. (5) Failure of the applicant's business to comply with the county's business license, zoning, building, plumbing, utility, health, electric or fire prevention codes, or with any other applicable county or state laws or regulations. (6) The application fee has not been paid. (f) If the application is denied, the chief of police or his designee shall notify the applicant of the denial and state the reasons for the denial. (g) The permit shall be valid for 12 months from the date thereof and may be renewed in the same manner as it was initially obtained. The application fee for a renewal permit shall be $100.00. No permit shall be transferable. (h) Any changes in the ownership or principals of the business entity to which the permit is issued or in the managers of the business will automatically make the permit 1204 October 25, 2005 void. Such changes shall be reported to the chief of police or his designee, and a new application may be submitted for review. Sec. 13-102. Same--Grounds for revocation. The chief of police or his designee may revoke any permit issued pursuant to this article for the following: (a) Fraud, misrepresentation or any false or misleading statement contained in the application. (b) Conviction of the permittee for any felony, crime involving moral turpitude, or crime involving the obscenity laws after the permit is issued. (c) The permittee or an employee of the permittee has knowingly allowed possession, use or sale of illegal controlled substances in or on the premises. (d) The permittee or an employee of the permittee has knowingly allowed prostitution on the premises. (e) The permittee has refused to allow an inspection of the adult business premises as authorized by this article. (f) On two or more occasions within a 12-month period, employees of the adult business at the time of the offenses committed an offense in or on the permitted premises for which a conviction has been obtained constituting: 1. Aiding, abetting or harboring a runaway child; 2. Prostitution or promotion of prostitution; 3. Exposing minors to harmful materials; 4. Dissemination of obscenity; 5. Sexualassau~;or 6. Violation of section 13-111 of this Code. The fact that a conviction is being appealed shall have no effect on the revocation of the permit. (g) The permittee is convicted of violations regarding any taxes or fees related to the adult business. (h) The permittee has failed to operate or manage an adult business in a peaceful and law-abiding manner. (i) The permittee or an employee of the permittee, except a permittee or employee of a permittee of an adult motel, has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual activity to occur in or on the permitted premises. 0) The permittee has been operating an adult business not approved under the applicable permit. (k) The permittee has failed to comply with the provisions of this article. (I) The permittee's business fails to comply with other applicable county or state laws or regulations. October 25, 2005 1205 Sec. 13-103. Procedure upon denial of an application or revocation of a permit. (a) If the chief of police or his designee denies an application or revokes a permit, he shall notify the applicant or permittee in writing of such action, the reasons therefor, and the right to request a hearing. To receive a hearing, the applicant or permittee must make a written hearing request which must be received by the chief of police or his designee within ten days of the date of the notice of denial or revocation. If a timely hearing request is not received by the chief of police or his designee, the decision of the chief of police or his designee shall be final. If a hearing is properly requested, it shall be held within ten days from receipt of the hearing request. The hearing shall be presided over by the chief of police or his designee. The applicant or permittee shall have the right to present evidence and argument or to have counsel do so. Within five days of the hearing, the chief of police or his designee shall render his decision which shall be final. A permittee must discontinue operation of its business when the decision to revoke the permit becomes final. (b) When an imminent threat of substantial harm to public health or safety requires such action, the chief of police or his designee may immediately revoke a permit issued under this article by so stating in a written notice to the permittee. When action is taken pursuant to this subsection, the permittee shall immediately discontinue operation of its business, but shall have the right to a hearing as stated in subsection (a). Sec. 13-104. Availability of prompt judicial review. After denial of an initial or renewal application or after revocation of a permit by the chief of police or his designee, the applicant or permittee may seek prompt judicial review of such administrative action in the circuit court of the county. Any such request for judicial review shall be filed within 30 days of when the administrative action becomes final. The county will facilitate the applicant's obtaining prompt review. Sec. 13-105. Inspection. (a) In addition to any existing legal authority, representatives of county departments shall have the authority to inspect an adult business for the purpose of determining compliance with the provisions of this article. (b) The provisions of subsection (a) of this section shall not apply to sleeping rooms of an adult motel which are currently being rented by a customer. Sec. 13-106. Regulations pertaining to adult businesses providing adult entertainment. (a) For purposes of this section, adult entertainment is defined as dancing, modeling or other live entertainment if the entertainment is characterized by an emphasis on 1206 October 25, 2005 specified sexual activities or specified anatomical areas or is intended for the sexual stimulation or titillation of patrons. (b) No person shall provide adult entertainment for patrons of an adult business except upon a stage located in an area open to all patrons of the business. The stage shall be at least 18 inches above the level of the floor and separated by a distance of at least three feet from the nearest area occupied by patrons. No patron shall be permitted within three feet of the stage while the stage is occupied by an entertainer. (c) The adult business shall provide separate dressing room facilities for female and male entertainers which shall not be occupied or used in any way by anyone other than them. (d) The adult business shall provide entertainers access between the stage and the dressing rooms which is completely separated from the patrons. If separate access is not physically feasible, the establishment shall provide a walk aisle at least four feet wide for entertainers between the dressing room area and the stage with a railing, fence or other barrier separating the patrons and the entertainers which prevents any physical contact between patrons and entertainers. (e) No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while in or on the premises of the adult business. (f) No patron shall directly payor give any gratuity to any entertainer. A patron who wishes to payor give a gratuity to an entertainer shall place the gratuity in a container that is at all times located separately from the entertainers for the purpose of preventing any physical contact between a patron and an entertainer. No entertainer shall solicit any gratuity from any patron. (g) Patrons must be at least 18 years of age. (h) No operator or manager of an adult business shall cause or allow an entertainer to contract to or engage in any entertainment such as a "couch," a "straddle," or "lap" dance with a patron while in or on the premises of an adult business. No entertainer shall contract to or engage in a "couch," "straddle," or "lap" dance with a patron while in or on the establishment premises. For purposes of this subsection, "couch," "straddle," or "lap" dance is defined as an employee of the establishment intentionally touching any patron while engaged in any specified sexual activity or other activity intended for the sexual stimulation or titillation of patrons, or the exposure of any specified anatomical area. (i) This section shall not apply to an employee of an establishment who, while acting as a waiter, waitress, host, hostess, or bartender, comes within three feet of a patron. No employee shall engage in any specified sexual activity or other activity intended for the sexual stimulation or titillation of patrons, or expose any specified anatomical area while acting as a waiter, waitress, host, hostess, or bartender. October 25, 2005 1207 Sec. 13-107. Regulations pertaining to adult motels. (a) Evidence that a sleeping room in a hotel, motel or similar commercial establishment has been rented and vacated two or more times in less than ten hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in section 13-100 of this Code. (b) No person who is in control of a sleeping room in a hotel, motel or similar commercial establishment that does not have an adult business permit shall rent or subrent a sleeping room to a person, and within ten hours from the time the room is rented, rent or subrent the same sleeping room again. (c) For purposes of subsection (b) of this section, the terms rent or subrent mean the act of permitting a room to be occupied for any form of consideration. Sec. 13-108. Transfer of permit prohibited. (a) A permittee shall not operate an adult business at any place other than at the address designated in the approved permit. (b) A permittee shall not transfer its permit to another person. Sec. 13-109. Public indecency. Nothing in this article shall be construed to permit any conduct which violates section 13-111 of this Code. Sec. 13-110. Violations. Except as permitted in section 13-101 (d), operation of an adult business without a permit is prohibited. Violations of this article shall be unlawful and subject to the provisions of section 1-10 of this Code. Sec. 13-111. Public indecency prohibited. (a) For purposes of this section nudity shall mean: (1) Having the pubic region or genitals covered less than completely and opaquely; (2) Having less than the majority of each buttock completely and opaquely covered; or (3) Having any portion of the nipple or areola of the female breast or that portion of the female breast distal to and below any part of the areola covered less than completely and opaquely. (b) Every person who knowingly, voluntarily and intentionally appears in a state of nudity in public or in a public place or in a place open to the public or to public view, or 1208 October 25, 2005 in an establishment which offers memberships to the public, or who employs, encourages or procures another so to appear, shall be guilty of a class 1 misdemeanor. (c) Every person who knowingly, voluntarily and intentionally engages in specified sexual activities in public or in a public place or in a place open to the public or to public view, or in an establishment which offers memberships to the public, or who employs, encourages or procures another so to engage, shall be guilty of a class 1 misdemeanor. (d) For purposes of this section specified sexual activities shall mean: showing human genitals in a state of sexual stimulation or arousal; real or simulated acts of human masturbation, sexual intercourse, sodomy or flagellation; fondling, caressing or other erotic touching of one's own or another's genitals, pubic region, buttocks or female breast; or showing the covered male genitals in a discernibly turgid state. (e) Nothing contained in this section shall be construed to apply to the presentation of any play, ballet, drama, tableau, production or motion picture in any theater, concert hall, school, college, museum of fine arts or other similar establishment which is primarily devoted to such presentations as a form of expression of opinion, communication, speech, ideas, information, art or drama. No person shall be in violation of this section for breast feeding a child in any public place or any places where others are present. 2. That this ordinance shall be in full force and effect from and after its passage. On motion of Supervisor McNamara to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors McNamara, Church, Wray, Flora, Altizer NAYS: None IN RE: REPORTS AND INQUIRIES OF BOARD MEMBERS Supervisor Flora: (1) He congratulated his son who was promoted to Captain in the Roanoke City Fire Department and will be participating in the ceremony on Thursday morning. Supervisor McNamara: (1) He congratulated the Flora family for their civic involvement. (2) He stated that Election Day is two weeks from today and he encouraged citizens to vote their conscience. He also noted that the Board will meet once in November on the 15th to avoid any conflicts with Election Day. October 25, 2005 1209 Supervisor Wrav: (1) He advised that he has had numerous complaints regarding road repair projects, specifically with respect to patching of cracks in the pavement. He asked that a letter be sent to VDOT regarding this matter. Mr. Hodge advised that staff will prepare a letter. (2) He advised that he attended the Cotton Hill Homeowners Association meeting this past week and stated that he has presented the concerns raised at that meeting to the appropriate parties for review. He thanked the citizens for their involvement. (3) He reported that he attended the Clearbrook Civic League meeting this past Thursday. He thanked John Murphy and Anthony Ford, Community Development Department, for their attendance at the meeting and their efforts in addressing the citizens' concerns. (4) He stated that he met with VDOT last week regarding the Boones Chapel Road project and last night regarding the Colonial Avenue improvement project. He stated that citizens in the Colonial Avenue area presented good ideas for improving traffic flow. He further advised that he received two emails from VDOT today regarding these issues. (5) He noted that Mr. Hodge has addressed usage of County vehicles and efforts to conserve gasoline. He stated that he has received a call concerning a County vehicle and he wants to make sure the vehicle is being taken home in accordance with established guidelines. Mr. Hodge advised that he will follow up on this matter. (6) He encouraged citizens to vote on Election Day. (7) He advised that Chairman Altizer will deliver the State of the County Address on November 2. (8) He congratulated Supervisor Flora's son on his recent accomplishment. 1210 October 25, 2005 Supervisor Altizer: (1) He congratulated Supervisor Flora's son on his achievement. (2) He asked Mr. Hodge to have Anthony Ford brief the Board on November 15 regarding the status of the County's request to receive an extension regarding compliance with the new VDOT guidelines for the rural addition road program. He advised that some counties have already been granted an extension. (3) He stated that he was a guest of the Vinton Historical Society this past week and he noted that they have calendars available for sale which depict historical areas in the Vinton District. He encouraged support of the organization through this fundraising effort. IN RE: ADJOURNMENT Chairman Altizer adjourned the meeting at 8:48 p.m. until Sunday, November 13 at 1 :00 p.m. for the purpose of the annual Board retreat to be held at the Virginia Association of Counties Conference, The Homestead Resort, Hot Springs, Virginia. Submitted by: Approved by: /J¡~l~)JlfJldld Diane S. Childers, CMC Deputy Clerk to the Board j{ütlitd 74, arr~ Michael W. Altizer Chairman ......-