The builder of an Alexandria town house development came forward Friday with a plan to correct a city code violation at the project about an hour before the deadline set by the city.
Assistant City Attorney Barbara P. Beach told the developer, Sonny DeCesaris & Sons Builders Inc. of Prince George's County, to produce a proposal "or face legal action."
The developers have not installed the type of outside lighting called for in their agreement with the city, Beach said. She said the plan DeCesaris presented late Friday afternoon appeared to be "within the realm of acceptability." It must be approved next week by other city offices and by any homeowners whose property will be affected, she said. "At this point I will not file," she added, saying she would wait until the plan had been studied.
Homeowners in Shuter's Hill, where houses are priced in the $130,000-$150,000 range, say they have been trying for more than three years to persuade the developers to install the amount of lighting required by the agreement with the city. Some outside lights were installed more than a year ago, but not enough "to be safe," said a resident, S. Kenneth Howard.
Beach said the developer also is in violation of city statute that required him to turn over control of the homeowners' association to the residents at a specified time. Two unit owners have sued DeCesaris, and Beach said that for the time being she "will monitor the association suit."
Robert A. Payne, the developer's attorney, said his clients bought the Shuter's Hill property several years ago from another builder who had already obtained a site plan. They thought they put in lighting "in accordance with the plan. . . . City inspectors did not object, and Mr. DeCesaris assumed he was complying with the city code," said Payne. "All sorts of problems arise now in constructing lights in the fashion shown on the plans." The builders "would have to excavate" and cause "much disruption" for residents.
The project is a planned unit development, a hybrid of individual home ownership and condominium ownership. The developer agrees to meet city rules governing construction, drainage, lighting and other requirements and in return is allowed more flexibility in construction than other projects, Beach said. The conditions are negotiated by the city and the developer and can include greater density than usually permitted, and deviation from setback and parking requirements.
The dispute over records of the homeowners' association and control of the organization has resulted in two court actions. Residents William F. and Kristy L. Whitsitt are asking the Alexandria Circuit Court to order the developer of the 35-unit town house complex to turn over the records, which they say the company should have made available more than three years ago for inspection by homeowners.
In another suit, the Whitsitts say the three brothers "neglected, breached, and failed to perform" their duties as association officers by neglecting to collect and manage association funds, maintain common areas, construct required improvements, maintain books and records, notify homeowners of annual meetings, and turn over control of the association to unit owners. This suit, which notes that it is filed "on their own behalf and on behalf of all other members" of the homeowners organization, asks for $100,000 plus "continuing damages to the date of trial."
The Whitsitts and other homeowners also say that management of the association should have been turned over to unit owners about a year ago, when more than half of the homes had been sold. The developers, as owners of the property, control the homeowners association until 51 percent of the units are sold, the point at which they are required by Alexandria statutes to turn over control to homeowners.
In a reply filed with the court, the DeCesarises denied they violated Virginia law by failing to hand over the records, and said "books and records of the association" were hand delivered to the Whitsitts' attorney. "We attempted to turn over ownership one . . . time, but they the homeowners didn't want to take it for some reason," Geaton A. DeCesaris Jr., president of the company, said in a telephone interview.
Payne said he now has "all the records, bank statements, original contributions of homeowners when they bought, settlement statements, dues the developer has to pay and things of that nature." The lawyer said his clients "could have turned over the association several weeks ago, but they wouldn't have had all the records in one place for the homeowners' review."
Mark S. Allen, the Whitsitts' attorney, said, however, that the Shuter's Hill unit owners "have never received satisfactory documents related to the homeowners' association. It's our position that Virginia law requires those documents," he said.