The condominium owners at Ordway Gardens in Cleveland Park were hit with a surprise at a recent condo meeting. They were told that the same group that renovated and sold them their units was planning to develop the land behind them on Porter Street with high rises that would hover over their own buildings by several stories and would require a zoning variance.
While many condo owners found these plans distasteful, a provision in their deed states that not only can't they oppose the new construction but they must actively support it.
The deed states that, if this property on Porter Street, just off Connecticut Avenue to the east, is to be developed, "Grantee will not in any manner object to, and will affirmatively support, any development plans" for the Porter Street property which abutts the condos on the north side of Ordway Street.
It goes on to say that support may include "written statements of support at the time of application and hearings" and also "where applicable and not inconvenient," owners may "appear personally to evidence . . . support for the proposed development."
According to Philip Horowitz, attorney at the firm Melrod, Redman and Gartlan, which is counseling Michael Garrett, who is a part owner and president of MRG Constructors which did the Ordway Gardens renovations, "The Ordway people were consenting up front to be supportive."
Horowitz said the plan always had been to develop both properties, but that the Ordway part would be developed first. "The deed arrangement," Horowitz said, "was that when you went to buy at Ordway Gardens, you would support development on Porter Street as consideration for being sold an apartment."
Asked if the provision is unusual, he said, "It's an unusual situation." But Horowitz added that it might be difficult to enforce the clause that requires tenants to "affirmatively support" the development.
James E. Starrs, properties professor at the National Law Center at The George Washington University, doubts that any part of the clause is enforceable. He called it an "in terrorem" clause, "one that is meant to intimidate, especially people who are nonlawyers."
Starrs went on to say, "I know of nothing in the D.C. statutes that would prohibit such a clause, but I wonder if it is toothless."
He set up a hypothetical situation. "Say the people who own the property at Ordway Gardens do go in and protest the zoning variance. What are the Ordway people developers going to do, take their deeds away from them? I doubt that would be enforceable. If the variance is denied, can they developers say it was because of the tenants and sue for damages?"
He said that zoning boards are not required to state reasons why they deny variances, so that would be almost impossible to prove. "And if they did prove it," he continued, "what are the amount of damages, all profits they lost?" He said that would fall into what is called "unconscionable" and therefore not enforceable.
He went back to his initial statement. "That provision is in there for one reason, to intimidate. There are a lot of people not gutsy enough to protest."
One condo owner agreed. "What they are doing is asking you to give up your right to petition the government," said Lynn Kamarck, who, a lawyer herself, called that entire provision of the deed "unconscionable." If Starrs is correct that the developer's purpose is to intimidate, Karmarck believes it is having that effect.
While several residents said that the fellow condo owners they have talked to do not want high rises in their backyards, many believe they are in a bind and afraid to do anything.
She explained that MRG is known for its renovation work rather than new construction, "so it was not unreasonable to think that they would renovate the existing buildings," which are brick low rises similar to other buildings in the area.
Pat Power, another condo owner, said that her lawyer, who has worked in real estate in the Washington area for many years, told her not to worry about the provision. "He told me that it was in there the deed but was unenforceable." She said, "We knew the property would be developed, we just hoped that it would be done within the zoning regulations."
But according to Garrett, "A high rise is all that fits that site. It doesn't make any sense from an economic standpoint to put anything else there." He said because of the steep grade the buildings would fit into the side of the hill.
Gera Richardson, who lived there two years before the condo conversion and was agent for the developer, said that she doesn't find the plans offensive at all. Her opinion is that they are definitely going to build something there and she would rather have them get on with it. She said said she feels that many residents are apathetic about what is built around them.
Much has been talked and written lately about the integrity of the Cleveland Park neighborhood. "The appeal here," said Power, "is it is low density. There's a feeling about the neighborhood. It's not high rise. It's not flashy, everybody says hello." She explained that there is a certain stability about the neighborhood. "Some people moved here to work for the old War Department and they're still here."
"People often remark," said Kamarck, "that it's like living in a suburban building. You don't hear the traffic."
"I've only been here one year," said Jackie Davenport, president of the condo association, "and they already know me at the Chicken Bucket," a neighborhood store.
Another fear the neighbors of Ordway and Porter streets expessed about a big increase in the population is the parking situation. Power explained, "You have to plan on a Saturday night to come home just as the movies let out," if you want to get a parking space.
Just the addition of one popular bar about three months ago "has made a difference in the parking," said Marcia Graff.
While Garrett could not say for sure how many parking spaces would be built with the Porter Street units, he said that the figure would be about 170 spaces. "We hope that all of them will be sold," he said, stating that it is easier to wrap the price of a parking space into the mortgage.
The condo owners also fear it would overcrowd the small businesses and shops that serve the neighborhood. "I think developing these units would overpower the commercial establishments," said Power. "At the Safeway, the lines are already down the block."
"It's called the 'Soviet Safeway,' " said Kamarck, "because of long lines and short supply."
But Garrett said that the developers have talked to the business people of that area and they haven't expressed disapproval.
He admitted that when proposing a plan, "you're not going to get 100 percent support." He said that if they don't get support of the residents, "It then gets down to the needs of the citizens, the housing needs of the city."
And Garrett said he thinks the city needs more units.
The entire debate, however, could prove academic if the city's Office of Planning gets its comprehensive density plan approved. Barry Steeves is working on the Cleveland Park portion of this plan that the office hopes to get before the City Council by fall.
"Current zoning allows for larger buildings" in Cleveland Park than now exist, explains Steeves. "The comprehensive plan would try to discourage that. Residential areas like Cleveland Park should be preserved."
While he would not give an opinion on what he thought the chances were for getting a zoning variance for the Porter Street property, he said, "It's going to be a tough one to sell but I can't predict" what the zoning officials will do.