Easement Summary: Bayville (VIR-VOF-445/159) Amendment of Easement Board Meeting Date: April 18, 2012

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1 Easement Summary: Bayville (VIR-VOF-445/159) Amendment of Easement Board Meeting Date: April 18, 2012 Owner/Property Name: Bayville Farms Associates; Burroughs Family Land Co.; Harry T. and Calvert T. Lester; Robert M. and Eleanor T. Stanton, Bayville Golf Club Locality: City of Virginia Beach Acres: 305 Property Features and Current Use: This 305-acre property, once one of the last working farms in Virginia Beach, fronts on Shore Drive and First Court Road. The Property contains ~9000 feet of frontage on Pleasure House Creek, a major tributary to the Lynnhaven River (which is itself a tributary to the Chesapeake Bay), and is surrounded by residential development. In 1982, the original easement was conveyed by the various Bayville Farm families to the Virginia Historic Landmarks Commission (now the Virginia Board of Historic Resources or VBHR) and the Virginia Outdoors Foundation. The purpose of the easement was to provide open space for the dairy farm and other rural and recreational uses as well as to protect the historic Bayville manor house and archeological resources. The easement allowed for 5 parcels: Parcel A, containing the historic manor house; Parcel B, which was permitted to be divided into two small residential lots and the residual parcel; and Parcel C, containing the retail farm outlet or store. Due to the decreasing economic viability of the portion of the Property that was the dairy farm, the Bayville landowners decided to move forward with converting the farm into an 18-hole golf course, which was a permitted use in the 1982 Easement. However, the 1982 Easement was not clear as to whether golf course buildings and structures were permitted, so the 1982 Easement was amended in 1993 to clarify the use of the Property as a golf course and to place a soft limit on the amount of permitted golf course buildings and structures. In 1995, a second amendment deed was drafted to clarify and modify terms related to Parcel C (Taste Unlimited Parcel), including the subdivision of Parcel C, which was prohibited in the 1982 Easement and the 1993 Amendment. This subdivision was necessary in order to satisfy City of Virginia Beach ordinances during the creation of the Golf Course. The VOF Board approved this amendment at the August 1995 board meeting. This second amendment was never finalized and recorded. Since the mid-1990s, the Property has consisted of 5 properties: 1) The large parcel ( acres) and majority of the Property, is used as a golf course, 2-4) Three residential parcels, two of which currently contain residential buildings and structures ( acres, acres), the other being vacant ( acres) and 5) a small parcel (1.094-acres) with the Taste Unlimited retail store. In 2007, the historic manor house, owned by the Lester family, was accidently destroyed by fire. At the December 2007 VBHR board meeting, VBHR voted to amend the easement to remove VBHR as a co-holder because of the loss of the historic manor house. The Lester family contacted VOF the following summer for permission to build a replacement home. The 1982 Easement and the 1993 Amendment were both silent on whether a replacement dwelling could be built on the parcel containing the historic manor house. VOF and VDHR granted the Lester family permission to build a replacement dwelling with the understanding that all parties would amend the 1993 Amendment to clarify the construction of a replacement building on Parcel A, memorialize and ratify various approvals and uses permitted over the years, and to clarify easement terms. 1 of 113

2 From 2008 until present, VOF staff has been negotiating with the landowners and DHR staff to develop an amendment of the easement that supports the original conservation purposes of the easement and reasonably addresses the changes in use and circumstances that have occurred over the past 30 years. During this process, the landowners asked for the terms of the amended easement to be separated into five deeds so that each individual permitted parcel has a corresponding deed of easement that applies only to that parcel. Although this approach is novel to VOF, staff has determined that this aspect of the amendment is legally permissible, administratively possible, and preferable to VOF. PLEASE NOTE: Shortly before this summary was drafted for inclusion in the VOF Board s packet, DHR staff expressed some concern as to whether VBHR was authorized to assign its interest in the Bayville Easement to VOF as contemplated in the motion passed by VBHR in At this point, DHR staff has only said that DHR is researching the issue, and so no formal statement has been provided to VOF. In order to address this last-minute development, VOF staff drafted a resolution for the VOF Board regarding the proposed amendment that includes removal of VBHR as a co-holder of the easement, provided that VBHR consents. The purpose of this contingent portion of the resolution is to allow VOF to move forward with all other aspects of the proposed amendment even if VBHR decides that it wants to continue to be a co-holder of the easement. Statements of Conservation Value, Public Benefit and Supporting Governmental Policy Conservation/Open Space Values: Largely undeveloped and significant expanse of open-space surrounded by residential subdivisions Contains approximately 9,000-feet of frontage on Pleasure House Creek, a tributary to the Lynnhaven River and the Chesapeake Bay Public Benefit: Protects a significant expanse of open-space in an area surrounded by residential subdivisions Protects water quality by limiting development adjacent to an important tributary of the Chesapeake Bay. Protects a scenic view for the public as seen from heavily-travelled adjacent roadways and waterways. Other Supporting Governmental Policy: Local: Supports protection of the Lynnhaven River watershed, which has been designated as a component of the City of Virginia Beach s Scenic Waterway System State: Supports Chesapeake Bay Program for permanent land conservation in the Bay watershed. Federal: Supports Chesapeake Bay Program for permanent land conservation in the Bay watershed. Easement Terms: 1982 Original Easement/1993 Amendment: - Co-hold with VBHR Acreage: +/-305-acres Division: 5 parcels permitted - Parcel A: 8.9-acres; no division; historic manor house - Parcel B: acres; 3 parcels: 2 residential lots between 5 and 20-acres on Lynnhaven River, and residual parcel - Parcel C: acres; no division; Taste 2 of Proposed Easement - Assigns and transfers VBHR s interest as a coholder of the easement to VOF - Creates 5 separate deeds 1 for each property Language pertaining to all 5 deeds (except where noted): Division: Template, No further division for each parcel Uses: Template, except for allowing for golf course, golf learning and instruction center, tennis club, swim

3 Unlimited Dwellings/Buildings: - Parcel A: Historic manor house, garage, swimming pool, guest house, servants quarters, farm laborers quarters, farm buildings and structures. Improvements to manor house and new buildings constructed must have prior VBHR approval. - Parcel B: Each residential lot gets 1 primary dwelling not more than 3 stories in height, one guest cottage, one servants quarters, garage, stable, swimming pool, dressing room, greenhouse, bulkheads, docks and boathouses. Residual parcel gets unlimited farm buildings, residences for farm employees. *1993 Amendment clarified that number of buildings on the residual parcel shall not exceed the amount of buildings existing on November 24, Also, if any buildings are razed, new buildings may be substituted without approval if built within 2 years of a building being razed. - Parcel C: a retail farm outlet or store Industrial/Commercial Uses: - All Parcels: farming, silviculture, horticulture, taking of seafoods - Parcel A: Open to public for historical purposes - Parcel B: Non-commercial gardens, parks, hiking, running, bicycling, tennis courts, golf courses and bridle trails - Parcel C: Continuation of a retail farm outlet or store Trash: No trash, unsightly or offensive material visible from public roads/waterways and from historic manor house. Forest Management: Permitted with plan. Any clearcut areas must be reseeded within two years of cutting. Signs: Shall not exceed 2x3 feet Archeological Protection: Conserve, preserve and protect archeological sites. Archeological survey required prior to earth disturbance. Grading, Blasting, Earth Removal: Permitted for construction of permitted buildings and private roads. *1993 Amendment expanded exceptions for paths, ponds and for permitted uses. 3 of 113 club, or physical fitness center and gardens, parks, hiking, running, bocce ball, soccer, bird watching, horseback riding, biking and archery. Furthermore, outdoor recreation activities that include an amusement park, sports stadium or other similar large scale recreation building or structure are prohibited Land/Forest Management: Template Grading, Blasting, Earth Removal: Template, with archeological protection Trash: Template Signs: Template, with acknowledgement of a larger sign existing on the Taste Unlimited Parcel and prohibition of the enlargement of this sign To the extent possible, the majority of the general provisions within Section 5 are being included in the amendments. All five deeds require the approval of both VOF and the City for any conversion or diversion of the properties. Buildings and Structures: Bayville Golf Club: farm buildings/structures, cottages, buildings/structures for permitted uses; prior written approval for >5000sq.ft.; impervious surface cap of 174,805sq.ft., which includes paved parking areas, patios, staging areas, tennis courts and swimming pools Lester: 1 primary dwelling, 2 secondary dwellings not to be materially enlarged Stanton: 1 primary dwelling and 1 guest cottage Burroughs Family Land Co.: 1 primary dwelling and 1 guest cottage Bayville Farms Associates: Allows for approx sq.ft. store and 800 sq.ft of incidental structures. Enlargement of the store is prohibited. Riparian Buffer: Stanton, Burroughs and Lester contain template language for 100 riparian buffers. The Bayville Farms Assoc. parcel does not contain water frontage and therefore does not have riparian buffer language. The Bayville Golf Club easement does not contain riparian buffer language as the Golf Club was insistent on not including any protection in the easement. The City of Virginia Beach enforces the Chesapeake Bay Regulations and VOF staff felt that this was sufficient particularly given that the original easement did not contain a riparian buffer restriction.

4 Conformance with Amendment Policy: (The basis of Staff Recommendation) The proposed amendment will accomplish the following: Removes VBHR as a holder due to loss of primary historic resource. Archaeological sites will still have some protection and have been identified by several archaeological studies performed Strengthen and clarify all terms of easement: clarify ambiguous or confusing language regarding division of the eased property; clarify numbers of permitted residences on each residential parcel; creates a total impervious surface cap for buildings/structures on the Golf Course property; limits size of the Taste Unlimited store. Updates deed to conform closely to current VOF template with respect to restrictions and general provisions. Allows for flexibility to become a public park should the situation arise. Adds ~1.5-acre strip to the property that is subject to the easement; this strip is the site of an abandoned road bed, and it currently separates the Taste Unlimited parcel from the rest of the eased property. Adding the strip to the eased property through this amendment will make all five eased parcels continguous. Creates five separate no-division deeds of easement (one for each parcel that was permitted by the original easement). Staff views the proposed amendments as consistent with VOF s amendment policy because the modifications due not result in less restrictive protection of conservation values. Staff Recommendation: Approve As Presented: Approve Subject to Suggested Changes: Deny: Staff recommends approval of the proposed amendment as presented. Variation from Deed Template: N/A This is an amendment. Wherever possible VOF staff have attempted to update archaic language to conform to the current template, but in some cases landowners have insisted on retaining language from the 1982 Easement and the 1993 Amendment. Further Discussion: None Conservation Purpose Additional Information Yes No Agricultural Use Forestal Use Natural Habitat/Biological Diversity Historic Preservation Natural-Resource Based Outdoor Recreation or Education Watershed Preservation Preservation of Scenic Open Space Conservation and Open Space Lands Designated by Local Government Chesapeake Bay watershed: Riparian Buffers on all properties but the Golf Club Rare species/karst: DNH Rec: Possible Conflict with VDOT/Rail/Utility Plans: Notes: RoW widths: Variable width on Shore Drive and First Court Road There are approximately linear feet of forested/vegetated riparian buffers on. There are approximately linear feet of no-plow riparian buffers on. (only for those that provide at least a 35 wide buffer; count both sides if property is on both sides of stream) Lien holder: No lien on the Golf Club; Title Report: YES Locality Notified: YES NO staff will check for the other properties NO Not Yet * Contact: City Attorney s office *A title policy exists for the strip of land being added to the Bayville Golf Club easement from when the Golf Club acquired the land in the 1990s. VOF staff will be researching any new deeds since, as well as judgments, financing statements, and taxes. 4 of 113

5 Legal Description in Easement Drafts: YES If NO, explain why NO Bayville Golf Club: # of Existing Dwellings: 0 Total # Dwellings Allowed: 0 Structure type/description Size (sq. ft. living area) Size (sq. ft. footprint) Photo Station Photo # On site? In county records? Clubhouse City Assessment Golf Cart Storage 7870 City Assessment Warehouse 5943 City Assessment Picnic Shelter 2500 City Assessment Garage 1348 City Assessment Restroom 330 City Assessment Restroom 330 City Assessment Pumphouse 625 City Assessment Boat Dock and Pier 675 City Assessment Wash Pad (paved area) ~851 Ground calculation Compound (paved area) ~4028 Ground calculation Maintenance Staging (paved area) ~3724 Ground calculation Sand Bins (paved area) ~1190 Ground calculation West Maintenance Access (paved area) Pump House Loading pad (paved area) Pavilions Surrounding Cart Staging (paved area) Bayville Farms Associates/Taste Unlimited: ~4540 Ground calculation ~600 Ground calculation ~4760 Ground calculation # of Existing Dwellings: 0 Total # Dwellings Allowed: 0 Structure type/description Size (sq. ft. living area) Size (sq. ft. footprint) Photo Station Photo # On site? In county records? Store 1719 City Assessment Cooler and utility room (both of which are attached to the Store) 216 City Assessment Source (Where size came from) The buildings and structures on the property represent approximately 120,805 square feet of impervious surface. 174,805 square feet of impervious surface allowed. 5 of 113 Source (Where size came from)

6 Greenhouse ~ VBMP aerial imagery Harry T. and Calvert T. Lester: # of Existing Dwellings: 2 Total # Dwellings Allowed: 3 Structure type/description 2-story dwelling (including canopy concourse leading to garage) Garage w/ above 340 sf storage room that could be converted to an apartment with some modifications Size (sq. ft. living area) Size (sq. ft. footprint) Photo Station Photo # On site? In county records? City Assessment 672 City Assessment 1-story cottage City Assessment Outbuilding 750 City Assessment Greenhouse 350 City Assessment Clubhouse w/ carport 1018 City Assessment Source (Where size came from) Robert M. and Eleanor T. Stanton: # of Existing Dwellings: 2 Total # Dwellings Allowed: 2 Structure type/description 2-story dwelling w/ attached garage Size (sq. ft. living area) Size (sq. ft. footprint) Photo Station Photo # On site? In county records? City Assessment Source (Where size came from) Pool ~ VBMP aerial imagery Gazebo 164 City Assessment Pier 950 City Assessment Boathouse 500 City Assessment 1-story cottage City Assessment Detached garage 600 City Assessment Pool ~ VBMP aerial imagery Burroughs Family Land Co., LLC: # of Existing Dwellings: 0 Total # Dwellings Allowed: 2 Structure type/description N/A Size (sq. ft. living area) Size (sq. ft. footprint) Photo Station Photo # On site? In county records? Source (Where size came from) 6 of 113

7 Visibility of Existing Principal Buildings: Describe general location in terms of public visibility. Taste Unlimited is located at the intersection of First Court Road and Shore Drive and is highly visible. Some of the residences and golf course buildings are visible from Pleasure House Creek and the Lynnhaven River. Secondary Considerations Threat Level Considerations: N/A, the property is already protected Project s Readiness: VOF staff have been working off and on with the 5 landowners and their attorneys since Over the past several months staff have worked extensively in order to present these amendments at the April 2012 VOF Board Meeting. The landowners are ready to proceed with amending the easements. Virginia Beach City Council still needs to approve the assignment. VOF staff does not anticipate any issues with the City approval. Conclusions from Stage 1 Review Team: Proceed Proceed with conditions Do not proceed at this time Conclusions from Stage 2 Review Team (Regional Board Mtg) Staff recommends favorably with no significant issues Needs discussion at Board Meeting Tax Map or PIN: Acreage: (Robert M. and Eleanor T. Stanton) (Bayville Farms Associates) (Harry T. and Calvert T. Lester) (Burroughs Family Land Co., LLC) (Bayville Golf Club) (includes the strip of land being added) Maps in Location Map: Aerial: Tax Map: Surveys: Topo: Special Conditions: File: Built Environment: Soils: Photo Point: Other: Mapping Information: Easement Boundary was created using: Survey dated September 15, 1982, entitled Plat of Property of Bayville Farms to Accompany Deed of Gift of Open Space Easement, recorded in Map Book 163 Page 40 (+/- 305-acre property) Survey dated September 30, 1995, entitled Subdivision of Parcel C recorded in Map Book 250 Page 33 (creation of parcel with Taste Unlimited) Survey dated November 29, 1994, entitled Subdivision of Parcel B Property of Bayville Farms and Resubdivision of Parcel A-1 Property owned by Robert M. and Eleanor T. Stanton, recorded in Map Book 251 Page (shows acre parcel owned by Burroughs Family Land Co. and acre parcel owned by the Robert M. and Eleanor T. Stanton) 7 of 113

8 Survey dated December 20, 1995, entitled Plat Showing Property to be Acquired by the City of Virginia Beach for Right of Way Purposes recorded in Map Book 255 Page 37 (less acres from Bayville Farms Associates now the Bayville Golf Club tract) Survey dated March 11, 1996, entitled Property Conveyed to the City of Virginia Beach recorded in Map Book 255 Page 38 (less acres from Bayville Farms Assoc./Taste Unlimited tract) Survey dated March 11, 1996, entitled Plat Showing Property Conveyed to the City of Virginia Beach for Right of Way Purposes recorded in Map Book 255 Page 39 (less acres from Bayville Farms Assoc. parcel now the Bayville Golf Club tract) Survey dated December 1, 1997, entitled Plat Showing Proposed Excess City Property Adjacent to First Court Road recorded in Map Book 273 Page 84 (shows acre tract and acre tract owned by the City of Virginia Beach and conveyed to Bayville Farms Associates now the Bayville Golf Club tract) Survey dated December 1, 1998, entitled Resubdivision of Manor House Parcel A-2 and Part of Property of Bayville Farms Assoc recorded in Map Book 276 Page 7-8 (shows acre parcel owned by Harry T. and Calvert T. Lester) Survey dated March 5, 2004, entitled Plat Showing Right of Way, Temporary Construction Easement and Virginia Power Easement to be Acquired from Bayville Farms Associates recorded as Instrument # (less acres from the Bayville Farms Associates/Taste Unlimited tract) Survey dated March 5, 2004, entitled Amended Plat Showing Right of Way to be Acquired from Bayville Golf Club recorded as Instrument # (less acres from the Bayville Golf Club tract) All surveys were entered into GIS and then aligned with the 2009/2010 VBMP aerial imagery. The final property polygons were created by tracing the aligned surveys and excepting the various off-conveyances. MCF: A Notes for Stewardship: List here: Notes about when GPS was used; enrolled in any other programs such as CREP; indicate if there are activities on the property that will have to be modified to conform with the easement provisions (such as buffer management needing changes). Site Visit Dates: 1/31/2008, 4/1/2011 Extent of Site Visit: Entire property viewed. Site Visit Staff: John Peters Location (Property address): 4097, 4133, 4137, 4139 First Court Road, Virginia Beach, VA 23455; Directions and access information: From Richmond, I64 E to Route 13 N/Northampton Blvd. Turn right on Pleasure House Creek. Turn left on First Court Road. Owner Mailing and Property Addresses: Bayville Golf Club c/o Thomas V. Rueger 4137 First Court Road Virginia Beach, VA (757) Bayville Farms Associates c/o Richard C. Burroughs 999 Waterside Drive, Suite 1400 Norfolk, VA (757) Robert M. and Eleanor T. Stanton 4141 First Court Road Virginia Beach, VA (757) Harry T. and Calvert T. Lester P.O. Box 5969 Virginia Beach, VA Burroughs Family Land Co. c/o Richard C. Burroughs 999 Waterside Drive, Suite of 113

9 (757) Norfolk, VA (757) Board Meeting Notes: 9 of 113

10 Roads Strip owned by Golf Club Easement Properties Stanton 76 6'0"W Lynnhaven River 10 of '0"N 76 7'0"W 76 6'30"W 76 6'0"W Shore Drive Legend Bayville Golf Club Bayville Farms Associates Pleasure 36 54'0"N Bayville City Park First Court Road Lester House Creek Burroughs Family Land Company 76 7'0"W 76 6'30"W Projection: Lambert Conformal Conic GCS North America 1983 Datum: D North America 1983 Map created 03/07/2012 by John Peters. Source data provided by: Roads - VDOT; Other Conserved Lands - DCR; all else - VOF. Aerial Imagery 2011 USDA - NAIP This map is for general reference and display purposes only. Aerial Map Bayville Easement Properties VIR-VOF /- 305-acres Feet :8,400 ±

11 Stanton 76 6'0"W Lynnhaven River 11 of '0"N 76 7'0"W 76 6'30"W 76 6'0"W Bayville Golf Club Shore Drive Legend Roads 100' Riparian Buffers (Approx.) Strip owned by Golf Club Easement Properties Bayville Farms Associates Pleasure 36 54'0"N Bayville City Park First Court Road Lester House Creek Burroughs Family Land Company Projection: Lambert Conformal Conic GCS North America 1983 Datum: D North America 1983 Map created 03/07/2012 by John Peters. Source data provided by: Roads - VDOT; Other Conserved Lands - DCR; all else - VOF. Aerial Imagery 2011 USDA - NAIP This map is for general reference and display purposes only. 76 7'0"W Special Conditions Map Bayville Easement Properties VIR-VOF /- 305-acres 76 6'30"W Feet :8,400 ±

12 Memorandum TO: VOF Board of Trustees FROM: Kerry Hutcherson, Staff Counsel DATE: March 30, 2012 RE: Explanation of Jim Steiger s Letter The following is a letter from the Bayville Golf Club s representative, attorney Jim Steiger. I asked Mr. Steiger to prepare this letter in order to explain why the Bayville Golf Club is asking to be permitted to construct an additional 54,000 square feet of impervious coverage beyond the existing impervious coverage already located on the Bayville Golf Club property. Mr. Steiger has also provided a binder of photos and sketches showing the buildings and structures that existed on the property at the time when the Bayville Easement was conveyed to VOF and VBHR. The binder will be available for your review at the April Board meeting, but one of the sketches from the binder has been included here along with Mr. Steiger s letter. This sketch shows the 38 buildings that existed at the time when the Bayville Easement was conveyed. 12 of 113

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16 Prepared by: Virginia Outdoors Foundation 1108 E. Main St., Suite 700 Richmond, VA GPIN: EXEMPTED FROM RECORDATION TAXES UNDER THE CODE OF VIRGINIA (1950), AS AMENDED, SECTIONS (A)(3), (D), and AND FROM CLERK'S FEE UNDER SECTION THIS AMENDED AND RESTATED DEED OF GIFT OF EASEMENT AND ASSIGNMENT (this "Easement"), made this day of, 2012, by and among BAYVILLE GOLF CLUB, a Virginia non-stock corporation (hereinafter, "Grantor"), a grantor and a grantee for indexing purposes; VIRGINIA OUTDOORS FOUNDATION ("VOF"), an agency of the Commonwealth of Virginia, (hereinafter, "First Additional Grantor"), a grantor and a grantee for indexing purposes; the VIRGINIA BOARD of HISTORIC RESOURCES ("VBHR") (formerly the Virginia Historic Landmarks Commission), (hereinafter, "Second Additional Grantor"), a grantor and a grantee for indexing purposes; and the CITY OF VIRGINIA BEACH ("the City" or "Grantee"), a city of the Commonwealth of Virginia and a grantee for indexing purposes (the designations "Grantor" and "Grantee" refer to the Grantor and Grantee and their respective successors and assigns), WITNESSETH: WHEREAS, by Deed of Gift of Easement dated November 24, 1982, and confirmed by Confirmation Deed of Gift dated January 3, 1983 (the "Original Easement"), recorded on February 3, 1983 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 2238 at Page 655, a gift of easement was made to the Virginia Outdoors Foundation and the Virginia Board of Historic Resources (formerly Virginia Historic Landmarks Commission) on and over the 305-acre property described in the Original Easement (the "Property"); and Comment [A1]: The Bayville Golf Club is represented by different counsel than are the other four landowners, and some differences between this deed and the other four deeds are the result of the different approaches of the two attorneys. This is one of those instances. The Golf Club s attorney uses GPIN and the attorney for the other four landowners uses Virginia Beach Parcel No. We ll find out what the proper nomenclature is in Virginia Beach before we finalize the deeds. Comment [A2]: PLEASE NOTE: Until recently, VOF and VBHR were proposing to amend the Bayville Easement and assign it to the City of Virginia Beach. For a number of reasons, both VOF and DHR staff have decided not to pursue the assignment portion of this project. This decision occurred so late in the process that it was impossible for me to edit the deeds to remove all the language pertaining to assignment of the easement to the City. Nevertheless, the language related to assignment will be removed for the final draft deeds. Comment [A3]: The Golf Club s attorney said that he included this reference to the Bayville Golf Club as a grantee for indexing purposes because this deeds amends a previous deed where the Club was a grantor. I don t exactly follow his reasoning, but given that this grantee label is made expressly for indexing purposes, I don t think it has substantive importance. Comment [A4]: Containing acres. WHEREAS, by Amendment to Confirmation Deed of Gift dated October 28, 1993 (the "Amendment"), recorded November 19, 1993 in the aforesaid Clerk's Office in Deed Book 3303 at Page 1900, the Original Easement was amended to resolve certain questions that had arisen in the interpretation of the Original Easement (the Original Easement as amended by the Amendment is referred to as the "Conservation Easement"); and WHEREAS, Grantor now owns a portion of the Property subject to the Conservation Easement (i.e. all of Parcel B, containing approximately 244 acres, and a portion of Parcel C, containing approximately 8 acres, in the Conservation Easement), which property, together with additional property (the "Additional Property") not subject to the Conservation Easement but to Comment [A5]: ( acres) Comment [A6]: ( acres) Comment [A7]: Containing acres of 113

17 be made subject to this Easement, is more particularly described on Schedule A attached hereto (the "Subject Property"); and WHEREAS, both the Original Easement and the Conservation Easement prohibited subdivision of Parcel C; and Comment [A8]: Original Easement and the Conservation Easement? WHEREAS, Bayville Farms Associates desired to retain title to a portion of Parcel C that comprised a part of the Subject Property after the remainder of Parcel C was transferred to Bayville Golf Club; and WHEREAS, a Virginia Beach ordinance required subdivision of parent tracts whenever a smaller portion of the parent tract was conveyed; and WHEREAS, on August 23, 1995, the VOF Board of Trustees allowed Bayville Farms Associates to subdivide Parcel C in order to facilitate this transaction because the Board determined that the original intent of the Conservation Easement was to allow for the operation of the farm outlet or store; and Comment [A9]: Yes, this is necessary because it was one of the factors that the Board relied on in approving the subdivision of Parcel C. Comment [A10]: Is this necessary? WHEREAS, when the Board approved the subdivision, it recognized the need to amend the easement to clarify that the subdivision was consistent with the intent of the Conservation Easement; this amendment was never executed, and the parties have agreed hereby to amend the Conservation Easement to clarify this ambiguity; and WHEREAS, the Conservation Easement included VBHR as a grantee and co-holder for the purpose of protecting the historic Manor House that had been located on the Property; and WHEREAS, the Manor House was completely destroyed by accidental fire in 2007 and VBHR, at its December 5, 2007 meeting, voted to amend the Conservation Easement to remove VBHR as a co-holder of the Conservation Easement with the Virginia Outdoors Foundation continuing as sole holder of the Conservation Easement; and WHEREAS, the VOF and VBHR are both public bodies that hold the Conservation Easement pursuant to the Code of Virginia et seq. (the "Open-Space Land Act") and the Conservation Easement is real property that those public bodies acquired and designated for the purposes of the Open-Space Land Act; and WHEREAS, (B) of the Open-Space Land Act provides, "A public body may convey or lease any real property it has acquired and which has been designated for the purposes of this chapter. The conveyance or lease shall be subject to contractual arrangements that will preserve the property as open-space land, unless the property is to be converted or diverted from open-space land use in accordance with the provisions of subsection A of this section"; and WHEREAS, the City of Virginia Beach, as a city of the Commonwealth of Virginia and a public body as defined by the Open-Space Land Act, is willing and qualified to hold open-space easements under the Open-Space Land Act; and 2 17 of 113

18 WHEREAS, on, 2012, the Virginia Outdoors Foundation's Board of Trustees adopted a resolution authorizing the assignment of its interest in the Conservation Easement to the City; and WHEREAS, Grantor, VOF and VBHR have deemed it appropriate and in the interest of all parties to amend and restate the Conservation Easement, as to its applicability to the portion of the Subject Property currently encumbered by the Conservation Easement, and to restrict the Subject Property (including the Additional Property) as provided herein, state more clearly all the terms and restrictions pertaining to the Subject Property, and better reflect the current use, condition and state of the Subject Property; and WHEREAS, this Easement replaces the Conservation Easement as to the portion of the Subject Property currently encumbered by the Conservation Easement by amending and restating the Conservation Easement; however, the Conservation Easement, as the same may be amended and restated, shall remain in full force and effect as to all other portions of the Property encumbered thereby; and WHEREAS, VOF and VBHR desire to assign this Easement to the City, and the City desires to accept such assignment and hereby agrees to enforce the terms of this Easement expressly set forth herein in perpetuity pursuant to the Open Space Land Act; NOW, THEREFORE, in consideration of the premises, the Grantor, VOF and VBHR hereby amend and restate, in its entirety, the Conservation Easement and add the Additional Property thereto as hereinafter set forth, and VOF and VBHR hereby, immediately following such restatement, grant and convey, and assign all of their rights under this Easement to the City of Virginia Beach, the City of Virginia Beach hereby accepts such assignment, each of the parties hereto agrees that the Easement shall be henceforth held and enforced by the City of Virginia Beach pursuant to the Virginia Open-Space Land Act, and the City of Virginia Beach hereby designates the Easement as property to be retained and used for the preservation and provision of open-space land: WITNESSETH: WHEREAS, Grantor is the owner in fee simple of Subject Property situated in the City of Virginia Beach, Virginia, containing approximately acres, more or less, as further described on Schedule A attached hereto, and desires to give and convey to Grantee a perpetual open-space easement over the Subject Property as herein set forth; and WHEREAS, Grantee is a city of the Commonwealth of Virginia and a public body authorized to hold an open-space easement pursuant to Chapter 17, Title 10.1, through of the Code of Virginia, as amended (the Open-Space Land Act ); and WHEREAS, Chapter 461 of the Acts of 1966, codified in the Open-Space Land Act, declares that the preservation of open-space land serves a public purpose by curbing urban sprawl, preventing the spread of urban blight and deterioration and encouraging more economic and desirable urban development, helping provide or preserve necessary park, recreational, 3 18 of 113

19 historic and scenic areas, and conserving land and other natural resources, and authorizes the acquisition of interests in real property, including easements in gross, as a means of preserving open-space land; and WHEREAS, pursuant to Sections and of the Open-Space Land Act, the purposes of this Easement include retaining and protecting open-space and natural resource values of the Subject Property, and the limitation on division, residential construction and commercial and industrial uses contained in Section II ensures that a majority of the Subject Property will remain perpetually available for agriculture, livestock production, forest or openspace use, all as more particularly set forth below; and WHEREAS, as required under Section of the Open-Space Land Act, the use of the Subject Property for open-space land conforms to the City of Virginia Beach Comprehensive Plan adopted in 2003 and is located within an area of land designated as Primary Residential Area on the City s future land-use map, and the Comprehensive Plan recommends creation and protection of open space areas and preservation of our environmental resources among other strategies for guiding the future growth of this area; and WHEREAS, the Conservation Easement constitutes a restriction in perpetuity on the use which may be made of the Subject Property, and the terms of the Conservation Easement were in accord with the governmental conservation policies in place at the time of the original grant as set forth below: (i) Land conservation policies of the Commonwealth of Virginia as set forth in: a. Section 1 of Article XI of the Constitution of Virginia, which states that it is the Commonwealth's policy to protect its atmosphere, lands and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth; b. The Open-Space Land Act cited above; and (ii) Land use policies of the City of Virginia Beach as delineated in: a. its Comprehensive Plan adopted on December 2, 2003 to which plan the restrictions set forth in this deed conform and which contains the following goals and policies: Goal E-4: "Use the acquisition, protection, and management of lands in a strategic manner for open space and recreational purposes to define the City's natural and cultural heritage and assist in planning the future growth and development of the City. Open space is a concept well understood by individuals who each have their own view of what it encompasses but remains difficult to grasp as a shared perspective. For the purposes of this plan, open space can be thought of as those areas of land, wetlands, and open water, along with their respective vistas, which provide recreational, restorative, aesthetic or therapeutic value to the citizens of Virginia Beach, through a combination of 4 19 of 113

20 active or passive pursuits. Links between various open space sites or amenities, usually linear in character, such as bike paths, multipurpose trails, greenway or blueway corridors, or scenic easements, are critical elements of open space as well. A more detailed description of these open space resources is available in two companion documents adopted by reference as part of the Comprehensive Plan - the Outdoors Plan 2000 and the Master Bikeways Plan 1986 as amended." Policy E-4-2: "Promote open space as part of the City's heritage resources." The Virginia Beach 2003 Comprehensive Plan Technical Report includes identification of the Property (Bayville Golf and Country Club) as significant open space in the section on Open Space, Green Infrastructure, and Public Lands Management. "The Bayside Planning Area contains open space lands owned by the City of Norfolk adjoining Lake Lawson, Lake Smith and Little Creek Reservoir. Other significant open space lands in the planning area include the Brock Farm, the Williams Farm, Sajo Farms, Bayville Golf and Country Club, Cypress Point Country Club and Virginia Wesleyan College. These lands constitute the most significant developed and undeveloped open space in the planning area. The entire Lynnhaven River watershed, and Lake Lawson, Lake Smith and Little Creek Reservoir have been designated as components of the City's Scenic Waterway System." b. Section et seq. of the City of Virginia Beach Code that provides for land-use value assessment of certain property in the city to encourage its preservation as real estate devoted to agricultural, forestal, horticultural or open-space uses, which ordinance was enacted pursuant to Virginia Code Section , the non-residential portion of Parcel B of the Subject Property having been approved for land use assessment by the city; and WHEREAS, the Subject Property constitutes a portion of a largely-undeveloped and significant expanse of open space in an area within the City of Virginia Beach that is surrounded by residential subdivisions; and WHEREAS, this Easement provides a public benefit by virtue of protection of the Subject Property from development, which existing and foreseeable trends in the vicinity of the Subject Property indicate is increasing rapidly and which would lead or contribute to the degradation of the scenic, natural, and historic character of the area; and WHEREAS, the Subject Property, combined with other property that is subject to the Conservation Easement, contains frontage of approximately 9,000 feet along Pleasure House Creek, a tributary to the Lynnhaven River. The Lynnhaven River watershed has been designated as a component of the City's Scenic Waterway System; and WHEREAS, the water quality in the Pleasure House Creek and the Lynnhaven River will be protected by the limitations on surface disturbance contained in this Easement; and WHEREAS, the restrictions imposed by this Easement upon the use of the Subject Property are in accord with the Commonwealth of Virginia's policy, as set forth in the Open Space Land Act, to preserve open spaces for significant public benefits; 5 20 of 113

21 NOW, THEREFORE, in consideration of the foregoing recitals and in consideration of the mutual covenants herein and their acceptance by Grantee, Grantor does hereby give, grant and convey to Grantee a conservation and open-space easement in gross over, and the right in perpetuity to restrict the use of, the Subject Property in accordance with the terms of this Easement, which Subject Property, consisting of approximately acres, is located in the City of Virginia Beach, Virginia, as more particularly described on SCHEDULE A attached hereto. The Subject Property is shown as GPIN: ( acres) among the tax records of the City of Virginia Beach, Virginia. Even if the Subject Property consists of more than one parcel for real estate tax or any other purpose, it shall be considered one parcel for purposes of this Easement, and the restrictions and covenants of this Easement shall apply to the Subject Property as a whole. Comment [A11]: Schedule A mentions two GBINs. Are they being combined? Comment [A12]: Good question, Bruce. We will check with the Golf Club and the City, if necessary. SECTION I -PURPOSE The purpose of this Easement is to preserve and protect the open-space value of the Subject Property in perpetuity by imposing the restrictions on the use of the Subject Property set forth in Section II and providing for their enforcement in Section III. The open-space value of the Subject Property is described in the above recitals, is documented in the Documentation Report described in Section IV below, and includes the Subject Property s open-space, scenic, and recreational values and its value as land preserved and made available for rural uses such as forestry or agriculture (including livestock production). SECTION II RESTRICTIONS The acts that Grantor and its heirs, successors, assigns and personal representatives covenant to do and not to do upon the Subject Property, and the enforcement of the restrictions which the Grantee is hereby entitled to enforce are and shall be as follows (collectively, the "Restrictions"): Comment [A13]: Is this appropriate? Comment [A14]: It s appropriate in the sense that agriculture and forestry are permitted uses on the property and that the limitations on development of the property will keep it available for agricultural or forestal uses should a future landowner want to pursue such endeavors. 1. DIVISION. Separate conveyance of a portion of the Subject Property or division or subdivision of the Subject Property is prohibited. Boundary line adjustments with adjoining parcels of land are permitted and shall not be considered separate conveyances of portions of the Subject Property or divisions or subdivisions of the Subject Property, provided that at least one of the following conditions is met: (i) The entire adjacent parcel is subject to a recorded open-space easement owned by Grantee; or (ii) The proposed boundary line adjustment shall have been reviewed and approved in advance by the City Council of Grantee. 2. BUILDINGS AND STRUCTURES. No buildings or structures, other than the following, are permitted on the Subject Property: Comment [A15]: Good catch, Bruce. We ll have to change this back to Board of Trustees if we end up not assigning the easement to the City, though of 113

22 (i) farm buildings and structures, cottages for overnight guests using the recreational facilities located on the Subject Property, and other buildings and structures for, or functionally related to, a Permitted Use (hereinafter defined) of the Subject Property; provided, however, that (A) any new building or structure exceeding 5,000 square feet in ground area (excluding any building or structure which constitutes a replacement or relocation of any existing building or structure which is not increased by more than 5,000 square feet and does not cause the Ground Coverage Limitation (hereinafter defined) to be exceeded) may not be constructed on the Subject Property after the date of this Deed unless prior written approval for the building or structure shall have been obtained from Grantee, which approval shall not be withheld unless the size, height and siting of the proposed building or structure will materially adversely affect the open-space value of the Subject Property, and (B) the aggregate amount of ground area for all such buildings and structures, at any one time existing, shall not exceed 174,805 square feet (the "Ground Coverage Limitation"). For purposes of this subparagraph (i) the square footage of the ground area of any building or structure shall mean the square footage within the perimeter of the foundation or slab on which building or structure is or shall be constructed, (ii) "farm buildings and structures," "cottages for overnight guests using the recreational facilities located on the Subject Property," or "other buildings and structures for, or functionally related to, a Permitted Use of the Subject Property shall mean one or more buildings and/or structures constructed or used for, or in connection with, the activities specified in Section II, Paragraph 3, subparagraphs (i), (ii), (iv), (v) and/or (vi); excluding, however, structures and improvements listed in subparagraphs (ii), (iii) and (iv) of this Paragraph 2, such structures and improvements not being subject to the restrictions contained in this subparagraph (i). Paved parking areas, patios, staging areas, tennis courts, and swimming pools are permitted but the impervious components thereof are included in the Ground Coverage Limitation. Permeable-surface improvements are permitted and are excluded from the Ground Coverage Limitation; Comment [A16]: I know this may seem like a huge number, but the original easement permitted all the buildings and structures that existed in VOF doesn t have a baseline report from 1982, but we do have some photos provided by the landowners and a plat with buildings drawn on it that demonstrate that there were about 38 buildings (some of them being quite large) back in Today, there are 9 buildings that represent ~100,000 sf of the 174,805 permitted here. Bayville Golf Club is going to prepare a memo that explains its rationale for why it thinks it needs the extra sf. Ultimately, some impervious coverage cap is better than none, which is practically what we have with the existing easement. (ii) Private roads to serve permitted buildings or structures, private roads serving those parcels adjoining the Subject Property that were subject to and permitted by the Conservation Easement, driveways, drive aisles, curbs, gutters, aprons, sidewalks, cart paths, and trails used in connection with a Permitted Use, and any other improvements for purposes of access to any of the Permitted Uses; (iii) Fences which either do not exceed four (4) feet in height or do not otherwise materially interfere with the scenic view across the open space; (iv) Public or private utilities to serve permitted buildings and structures on, or the Permitted Uses of, the Subject Property and public or private utilities which serve the Property and the buildings and structures thereon. Public or private utilities that do not serve the Subject Property or the Property shall not cross the Subject Property unless Grantee determines that the construction and maintenance of such utilities will not materially adversely impair the open-space value of the Subject Property and gives its Comment [A17]: I don t see a problem with this since VOF won t be enforcing it. Comment [A18]: This language was added by the Golf Club s attorney. I told him that VOF usually doesn t like height restrictions because they are difficult to monitor and enforce. I think we could deal with it if we had to, but I don t think it will be a deal-killer if we ask that the restriction be removed of 113

23 prior written approval for such construction and maintenance, which approval shall take into consideration the visibility and other impact of such utilities on the open-space value of the Subject Property. Grantor reserves its separate rights to approve such public or private utilities. Without limiting the generality of the foregoing, Grantor shall have the right to construct new buildings and structures permitted in this Section II, Paragraph 2 and to repair, maintain, renovate, replace, and relocate all new and existing permitted buildings and structures on the Subject Property, within the limitations set forth in this Easement. Anything contained in this Easement to the contrary notwithstanding, Grantee shall not have any right of approval over (i) the construction of any building or structure which has no more than 5,000 square feet of ground area and such construction will not cause the Ground Coverage Limitation to be exceeded or (ii) the replacement or relocation of any building or structure with a square footage of ground area that does not exceed the sum of 5,000 square feet plus the square footage of ground area of the building or structure being replaced or relocated, and such replacement or relocation will not cause the Ground Coverage Limitation to be exceeded. 3. INDUSTRIAL OR COMMERCIAL ACTIVITIES. Industrial or commercial activities are prohibited with the exception of the following (each a "Permitted Use"): (i) agriculture (including livestock production), equine activities and forestry; (ii) small-scale incidental commercial or industrial operations related to activities set forth in subparagraph (i) above that Grantee approves in writing as being consistent with the open-space purposes of this Easement; (iii) processing and sale of products produced on the Subject Property as long as no additional buildings are required for this use; (iv) use of the Subject Property as a golf course, golf learning and instruction center, tennis club, swim club, or physical fitness center; (v) use of the Subject Property for gardens, parks, hiking, running, bocce ball, soccer, bird watching, horseback riding, biking and archery; Comment [A19]: Just because the property is currently being used as a golf course doesn t mean that there will never be a need or desire to use the property for agriculture or forestry again. 266 acres (or 305 if you re talking about all five parcels under easement) is a lot of land in this area, and it s possible that the local community will need a place to grow food when it gets too expensive to ship food from across the country or world to Va Beach. Comment [A20]: Is this appropriate? Comment [A21]: Is this appropriate? Comment [A22]: It s as appropriate as it is for any of our other easements that use this template language. (vi) use of the Subject Property for other outdoor recreational activities which do not materially interfere with the scenic view across the open space; provided, however, in no event shall such outdoor recreational activities be deemed to include an amusement park, sports stadium or other similar large-scale recreational building or structure; and (vii) activities that can be, and in fact are, conducted within the permitted buildings or structures. Nothing in this paragraph shall prevent Grantor from developing ecosystem functions on the Subject Property including, but not limited to, stream bank restoration, 8 23 of 113