Development agreement: Hillandale Development Corporation and the Burleith Citizens Association

Dated June 21, 1979; revised August 2, 1979

Note

This electronic version of the agreement has been transcribed from a signed paper original and is not authoritative. Errors may have been introduced in the transcription. When in doubt, the original, authoritative paper version should be consulted. Scanned 3 March 2001.

Contents

Agreement text

1. Vehicular Access
2. Emergency Access
3. Public Transit Access
4. Eastern Boundary Buffer Zone and Tree Preservation Area
5. The 39th Street Bank
6. Closing of 39th Street Extension
7. Construction Traffic
8. Construction Parking
9. Temporary Construction Access Road
10. The First Stage PUD Application
11. Noise Control
12. Dust Control
13. Mud, Earth, or Debris Transportation and Deposit Prevention
14. Coordination of Construction
15. Operation of the Planned Unit Development
16. Agreement to Continue to Bargain in Good Faith
17. Agreement to Enter into a Covenant
18. Association Access to Buffer Zone During Construction
19. Enforcement
20. Preservation of Individual Causes of Action
21. Serverability
22. Terms do not Merge
23. Inclusion in Deeds
24. Waiver
25. Definitions

Attachments

This is an agreement, dated June 21, 1979, between the Hillandale Development Corporation, Inc. (hereinafter the Developer"), a Nevada corporation which is a wholly owned subsidiary of Tecon Realty Corporation and the Burleith Citizens Association, Inc. (hereinafter the "Association"), a District of Columbia corporation which is an association of residents and/or property owners of the Burleith community. The property involved in this Agreement is Hillandale, a 42.01 acre parcel of land in the District of Columbia bounded by 39th Street and Reservoir Road, N.W., Glover Archbold Park and Whitehaven Park. The Developer intends to develop the site for 268 homes under a planned unit development to be approved by the District of Columbia Zoning Commission.

The Association agrees to support the Developer's first stage application for a Planned Unit Development (hereinafter the "PUD application"), Zoning Commission Case No. 79-6P, presently before the Zoning Commission of the District of Columbia (hereinafter the "Commission"). In return for such support the Developer agrees to implement the measures hereinafter described in this document, subject to the approval of the Commission in Case No. 79-6P and other relevant D.C. agencies. Both parties agree that such actions represent good and valuable service rendered and good and valuable consideration therefor.

The parties will use their best efforts to obtain approval of the PUD, as modified herein. In the event that actions by appropriate governmental authorities prevent the Developer from implementing: (1) the PUD Plan with 268 units, (2) the Emergency Access Plan, or (3) the Buffer Zone, the parties agree that (a) they will renegotiate this Agreement, and (b) absent satisfactory renegotiation, the parties reserve the right to declare this Agreement null and void, and the Association may withdraw its support of the PUD application.

On or before June 21, 1979, the Developer shall modify its application insofar as the vehicular access and its associated traffic plan are concerned to conform to the diagram accompanying this Agreement as Attachment 1. If such modification is approved by the Commission, and the D.C. Department of Transportation, it shall be implemented by the Developer as shown on Attachment 1, without delay upon their approval by appropriate governmental authorities, during the construction of "phase one" of the development.

The parties recognize that the Association's support for the application depends primarily upon the prompt adoption of a vehicular access plan which prohibits or substantially impedes traffic exiting left from Hillandale and moving north on 39th Street and which prohibits or substantially impedes traffic entering Hillandale from using that portion of 39th Street between the vehicular access and S Street. Accordingly, the parties shall urge the adoption of the vehicular access plan attached hereto as Attachment 1 or a plan which will accomplish the same objectives.

In the event such vehicle access plan is not approved by the appropriate governmental authorities, the parties will work with the appropriate governmental agencies to seek to agree on a new vehicle access plan to be submitted no later than in conjunction with the second stage application. In the event that no agreement is reached on a new vehicle access plan, the Association reserves the right to oppose the application at the second stage hearing.

The vehicular access shall be no closer to S Street than one hundred (100) feet south of S Street on 39th Street.

In connection with the traffic circulation plan described in Attachment 1 hereto, the parties shall not object to the removal of parking adjacent to Hillandale along the west side of 39th Street from the vehicular access south to Reservoir Road.

The Developer shall undertake any and all steps necessary to fully eliminate any and all dedicated but unbuilt streets and alleys which presently are shown on District of Columbia's Highway Plan, and the Association agrees to support these steps.

On or before June 21, 1979, the Developer shall modify its application insofar as the emergency access is concerned to conform to the diagram accompanying this Agreement as Attachment 2 (amended). If such modification is approved by the Commission and the D.C. Department of Transportation, it shall be implemented by the Developer as it is shown on Attachment 2 (amended). No other emergency access to the Hillandale property shall be constructed.

The emergency access shall not be paved, but the earth therein may be reinforced with "checker-block pavers" in order to support the weight of emergency vehicles. Grass and low shrubbery (which will be penetrable by emergency vehicles) shall be cultivated and maintained throughout such area. At the 39th Street curb line the emergency access shall have a rolled curb. A locked gate shall prohibit other than emergency veMcles from using the emergency access. The emergency access and the gate width shall be built no wider than the minimum width acceptable to the D.C. Fire Department to permit emergency vehicle passage. No construction-associated vehicle or maintenance vehicle or any other vehicle other than an emergency vehicle shall utilize the emergency access.

On or before June 21, 1979, the Developer shall modify its application insofar as points of access to public transit are concerned to conform to the diagram accompanying this Agreement as Attachment 3. If such modification is approved by the Commission, it shall be implemented by the Developer as it is shown on Attachment 3.

a. Eastern Boundary Buffer Zone

Along the length of the eastern boundary of Hillandale north of the vehicular access there shall be a fifteen (15) foot wide buffer zone, said distance to be measured inward (toward the west) from the eastern property line of Hillandale. The buffer zone shall not include any portion of the property owned by the District of Columbia along the western side of 39th Street, N.W. The buffer zone shall be owned by the Developer and transferred to the Hillandale homeowners association when such a group is established. Within the buffer zone no trees shall be removed, except that the Developer may remove dead branches, dead or fallen trees, or vines. The restriction of the immediately preceding sentence does not apply to any tree which must be removed in order to prevent injury to persons or physical damage to dwellings or the yards thereof. The Developer shall make all reasonable efforts to preserve any tree, the trunk of which is located on either the eastern or the western boundary of the buffer zone, (e.g. ,building the fence to or around such trees).

The Developer may plant decorative trees or shrubbery within the buffer zone. Within the buffer zone no construction activity shall occur and no construction equipment shall operate or be parked, except to erect a temporary or permanent fence along the eastern property line of Hillandale.

No house or other structure within the Hillandale development shall be constructed nearer than twenty-five (25) feet from the western boundary of the buffer zone, i.e., nearer than forty (40) feet from the eastern boundary of Hillandale. The restriction of this paragraph does not apply to the temporary or permanent fences to be constructed on the Hillandale property line.

b. Eastern Boundary Tree Preservation Area

Along the length of the eastern boundary of Hillandale south of the vehicular access there shall be a fifteen (15) foot wide tree preservation area, said distance to be measured inward (toward the west) from the eastern property line of Hillandale. The tree preservation area shall not include. any portion of the property owned by the District of Columbia along the western side of 39th Street, N.W. The tree preservation area shall be owned by individual homeowners within Hillandale. Within the tree preservation area no trees shall be removed, except that individual homeowners may remove dead branches, dead or fallen trees, or vines. The restriction of the immediately preceding sentence does not apply to any tree which must be removed in order to prevent injury to persons or physical damage to dwellings or the yards thereof. The Developer shall make all reasonable efforts to preserve any tree, the trunk of which is located on either the eastern boundary of the tree preservation area, or on the property lines between individual homeowners' properties (e.g. building the fence to or around such trees). The Developer may plant decorative trees or shrubbery within the tree preservation area. Within the tree preservation area no construction activity shall occur and no construction equipment shall operate or be parked, except to erect a temporary or permanent fence along the eastern property line of Hillandale and fences separating rear yards.

No house or other structure within the Hillandale development shall be constructed within the tree preservation area. The developer agrees to provide for the consideration of the Association, a detailed plan prior to submitting a Stage II application with respect to the location of houses to be situated adjacent to the tree preservation area and to reach an agreement with the Association with respect to any major change (e.g. elimination of entire rear yard area west of the tree preservation area which will belong to the individual homeowners affected) from the plan for such houses as submitted under Stage I. The restriction of this paragraph does not apply to the temporary or permanent fences to be constructed on the Hillandale property line or to fences separating rear yards.

The restrictions of provisions 4a and 4b do not apply to those portions of the property through which the vehicular access, the emergency access, and the public transit pedestrian accesses, described above, shall pass. The aforementioned exception to the buffer zone and tree preservation area restriction shall not extend more than ten (10) feet from the outer edges of any gates or entrances as designed in accordance with the approved PUD Plan and erected at the aforementioned accesses except as provided by the final approved grading plan.

The By-laws of the future Hillandale homeowner's association, when such a group is established, which are binding obligations of all purchases of units in the Hillandale project, will contain a provision prohibiting any and all residents of Hillandale from removing live trees from the buffer and tree preservation area, except to prevent injury to persons or damage to dwellings or the yards thereof.

The Developer shall seek authority ty to stabilize the bank which is the property of the District of Columbia on the west side of 39th Street from the Vehicular Access to the top of 39th Street. This area shows erosion effects at certain points.

As a part of any work undertaken by the Developer on the 39th Street bank, west side of 39th, all reasonable efforts will be made not to disturb or destroy trees presently growing on said bank. The parties shall oppose any efforts to construct a sidewalk on said property north of the Vehicular Access to the top of 39th Street.

The restrictions of this provision do not apply to those portions of the property through which the Vehicular Access, the Emergency Access, and the public transit pedestrian accesses, described above, shall pass.

The parties hereto shall consult together regarding any landscape work to be performed on the 39th Street bank to attempt to develop a mutually agreeable landscape plan for said bank.

The Developer shall support the efforts of the Association and other organizations which already are underway to eliminate any right-of-way for the extension of 39th Street and/or Wyoming Avenue through the Whitehaven Park.

In accordance with D.C. regulations prohibiting construction traffic to traverse residential streets, construction access to the site shall be via Reservoir Road and 39th Street to Vehicular Access and temporary construction road and shall not be via 35th, 36th, 37th, 38th or 39th (north of S Street) Streets or on R, 5, T Streets or Whitehaven Parkway. The Developer shall post and enforce rules concerning such access.

In order to minimize the impact of the development upon parking in the Burleith community during the construction phase, the Developer shall provide parking for vehicles associated with the construction at Hillandale (including those owned and operated by construction workers) within the Hillandale site, and the Developer shall post and enforce rules requiring that vehicles associated with said construction to be parked within said site.

The Developer shall relocate the temporary construction access road as shown on Attachment 4 hereto.

The terms and provisions of first stage PUD application now pending before the Commission are adopted herein by reference, except to such extent as they may be inconsistent with this Agreement.

On or before June 21, 1979, the Developer shall amend its pending first stage PUD application to incorporate the substance of the foregoing nine (9) paragraphs.

The Developer shall conform to the relevant provisions of the District of Columbia Noise Control Act of 1977, 24 D.C. Reg. 5331, D.C. Law No. 2-53, except that the Developer shall conduct no noise generating activities during the hours from 7:00 p.m. to 7:00 a.m. or on Sundays or legal holidays. The Developer shall not seek or apply for any variance pursuant to Section 8 of the aforementioned Noise Control Act, except with respect to noise level standards and then only with written notice to the Association at least forty-eight (48) hours prior to filing.

Dust emanating from the development shall be controlled in a good workmanlike manner ( e.g. suppression by wetting of exposed soil and roadways as are necessary to abate said condition.)

The Developer shall post and enforce rules to prevent the transportation and deposit of mud, earth, and other debris onto the public streets by vehicles leaving the development in a good workmanlike manner. In the event that such material is transported to and deposited on the public streets, the Developer shall take whatever measures are necessary to promptly remove any material already transported and deposited and shall take whatever measures are necessary to prevent additional transportation and deposit in compliance with District of Columbia Police Regulations. Additionally, the Developer agrees to advise the Association in writing of its cleanup schedule upon written request by the Association.

Following approval of the planned unit development, and depending upon the construction schedule of the proposed French Chancery, the Developer will use its best efforts to coordinate its construction with that of the French Government.

The Hillandale Development will be a secured private community developed in three phases. The perimeter of the property will be fenced as is shown on Attachment 5 attached (Fence Plan). The fencing includes wrought-iron fence with brick pilasters, off-set treated board fence, and green or black vinyl chain link fence, located as shown on the Fence Plan.

1. During the construction of Phase I, the general public may have access to the sales office which will be located in the gatehouse. Also, during the construction of Phase I, the public may view sample units during normal business hours. During the construction of Phase II, the general public may have access to the sales office and to sample units being constructed in Phase II. During the construction of Phase III the general public may have access to the sales office and to the sample units being constructed in Phase III.
2. After completion of the project, and transfer of ownership and control to the homeowner's association, all decisions concerning security arrangements of the Hillandale Development will be made by the homeowner's association under its by-laws.

The parties hereto shall continue to bargain in good faith and confer during the second stage PUD application process in an effort to reach an accord on said application, as provided in the PUD process. However,the Association is not bound by this Agreement to support the second stage PUD application, except that it shall not take a position inconsistent with the position it takes with respect to the first stage application on any particular point. Similarily, the Developer is not bound by this Aareement with respect to the second stage of its PUD application except to the extent that its second stage application shall not be inconsistent with its first stage application as approved by the Zoning Commission or with provisions of this Agreement, except by prior agreement with the Association.

Provisions of this Agreement shall be incorporated into a covenant between the Developer and the Association and certain of its individual members, and said covenant shall be executed and filed of record. Said covenant shall be binding upon the successors and assigns of the Developer. Moreover, the provisions of this Agreement shall be made known by the Developer to, and shall be binding upon, any person (real or corporate) who may act in partnership, association, or joint-venture with the Developer.

Upon written request and consent in writing, designated representatives of the Association shall be afforded access to Buffer Zone at reasonable times, with a representative of the Developer who is responsible for compliance with this Agreement. Such written request shall be accepted and acknowleged upon its tender. Such Association representatives shall wear such necessary safety equipment as required by and provided by the Developer before being admitted to the Buffer Zone during construction. Said written request shall be submitted at reasonable intervals and consent shall not be unreasonably refused.

1. The terms and provisions of this Agreement shall be enforceable by each of the parties in a court of competent jurisdiction in an action or in actions for mandatory or prohibitory injunctive relief. Such injunctive relief, including remedial work, shall be available in addition to, and shall not be limited by any available remedies at law.
2. In any action for an injunction, either preliminary or permanent, the plantiff shall be entitled to the relief sought upon proof that the alleged conduct did or was about to occur, and that such conduct was a violation of one or more of the terms or covenants contained herein or running with Hillandale.
3. In the event that any disagreement should arise under this Agreement the parties agree to use their best efforts to resolve by conciliation of such disagreement, prior to seeking judicial relief.

The provisions of this Agreement shall not prevent any individual resident or property owner of the Burleith community from exercising any legal or equitable rights or remedies which he/she may have concerning individual tort actions arising from the development of the Hillandale property.

Except as otherwise provided, if one or more clauses I or terms of this Agreement or any covenant running with the land is not given effect by any court, the other clauses or terms of this Agreement shall remain in effect and the enforceability of such clauses, terms and, covenants shall not be affected.

The terms of this Agreement shall not merge into any action or order of the Commission or of any other governmental body, but shall remain enforceable by the Association, if approved by appropriate governmental authority when required.

The affirmative and negative covenants contained in this Agreement shall be included in all deeds pertaining to Hillandale. It is expressly agreed that each and every covenant contained herein, or entered into subsequently, is the individual undertaking of the Developer and also shall run with the land in perpetuity (except as otherwise provided) burdening the parcels and common areas of Hillandale for the benefit of the properties located in Burleith.

Any waiver or acceptance of any breach or violation of any provision of this Agreement shall not constitute a waiver or acceptance of any subsequent breach or violation of the same provision or of any one or more other provision of this Agreement.

1. "Vehicular Access" shall mean the only roadway or driveway by which vehicles other than emergency vehicles shall be able to enter or exit Hillandale.
2. "Burleith" shall mean the neighborhood as defined in the By-laws of the Burleith Citizens Association, as follows: beginning at the center of the intersection of Reservoir Road and 35th Street; north in the middle of 35th Street to the middle of Whitehaven Parkway; west along the center of Whitehaven Parkway to its end; and in a straight line to the end of 39th Street and in the middle thereof; south in the middle of 39th Street to the middle of Reservoir Road; and east in the middle of Reservoir Road to the point of beginning.
3. "Appropriate governmental authorities" shall mean any and all departments, agencies and instrumentalities of the District of Columbia which may process the PUD application or any part thereof or may either issue or deny any permit(s) necessary to do the work described in the PUD application or in this Agreement.

Approved and Agreed this 21st day of June, 1979.

[s]
Michael L. Gulino
Vice President
Hillandale Development Corp.
1101 Connecticut Avenue, N.W.
Washington, D.C. 20036

[s]
Marguerite W. Autry
President
Burleith Citizens Association
3729 R Street, N.W.
Washington, D.C. 20007

[s]
Robert H. McFadden
Immediate Past President
Burleith Citizens Association
1917 38th Street, N.W.
Washington, D.C. 20007

[s]
Joseph H. Autry, III
Chairman
Committee on Zoning
Burleith Citizens Association
3729 R Street, N.W.
Washington, D.C. 20007