Housing Complex

Developer Threatens Suit as Southwest Residents Seek Landmark Status

The two Pei buildings, on left and right.

A legal battle is heating up near the Southwest Waterfront as condo owners seeking historic landmark status for their building in an effort to head off adjacent development have been met with threats of a lawsuit and financial damages from the developer.

The Bernstein Companies are hoping to construct three new buildings alongside two 1960 residential towers on 3rd Street SW designed by the architect I. M. Pei: two 11-story buildings straddling the existing ones and facing M and K streets SW, and one three-story building between the two originals. In an effort to prevent the development and maintain the public space between and around the buildings, residents are seeking landmark status for the Pei buildings and their grounds. If the property were to be landmarked, Bernstein would not be able to build there without permission from the Historic Preservation Review Board. Bernstein bought the property in 2006.

"If you look at Pei’s design, the space around buildings was a big part of the design," says Josh Zembik, condo association president at the Waterfront Tower at 1101 3rd St. SW. "We sought landmark status, and when that showed up on our board meeting agenda, we had some interest all of a sudden from the developer."

Shortly thereafter, Zembik says, he received a letter from Bernstein's lawyers threatening suit for violating the terms disclosed to purchasers of the building's units through a Public Offering Statement, which the letter says "explicitly state a 'reserv[ation of] the right to develop additional density on either parking lot and to build up to the fifth floor of the existing buildings in the area between the two buildings.'"

"Please be advised," the letter instructs residents, "that any action taken by any unit owner of the Waterfront Tower Condominium, or any action taken by the Unit Owners Association or its Board of Directors, to oppose or hinder the Developer's proposed redevelopment of the Property constitutes a material breach of the obligations imposed upon such persons by the express terms of the Public Offering Statement. Specifically, the document provides that:

The letter then advises residents to "refrain from taking any of the actions discussed at the recent Board Meeting, including speaking in opposition to the proposed redevelopment at the upcoming ANC meeting, hiring a zoning and/or land use attorney to oppose the redevelopment, or taking any other action that would oppose or hinder the proposed redevelopment." The lawyers for Bernstein then threaten residents who violate these terms with a lawsuit and liability for costs incurred by the developer as it fights efforts to prevent the development, including legal fees, employee time, and lost business opportunities.

Advisory Neighborhood Commission 6D is holding a meeting Monday evening at which it will discuss the proposed development, which requires zoning approval.

It's unclear whether Bernstein's attempted gag order on speaking out against the development would hold up in court. Zembik says the condo owners have attorneys looking into that question. He says he does not recall signing the Public Offering Statement, and if he did, it was "absolutely not" made explicitly clear to him and other residents that they would be unable to oppose neighboring development. Bernstein did not immediately respond to a request for comment, nor did the Historic Preservation Office.

  • George

    That's creepy. I hope the gag rule isn't allowed.

  • Matt

    By "public space," do they mean the two parking lots that are surrounded by fences and an 8-foot brick wall?

  • Bob

    Scary that Bernstein doesn't think the condo owners are even allowed to raise the issue publicly or at an ANC meeting. Is that the kind of society we live in???

  • Justin

    But there's nothing to prevent other people from talking about it, right? What about just getting all the friends of owners, or rental tenants, to do the petition?

  • tntdc

    Someone needs to send Bernstein a short copy of the Constitution: one with just the 1st amendment.

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  • Eric

    Let's get past the issue the develops have (I believe rightly) with the condo owners opposing development on vacant land. This land is under the ownership of someone else. Yes. The IM Pei architects may have specifically included this land in their design. Sure. But we absolutely should be able to agree on this website that this "tower in the parks" design was of another age, is a detriment to the city's ability to increase its density, especially near Metro stations, and an eyesore on the immediate community. The buildings can stay, but land is land. It would be a fair statement, in my opinion, that to designate land as historic, barring extraordinary history (like cemeteries or battles of war), is a gross overreach of the authority of the HPRB and the adjacent neighbors. This is privately owned land that someone purchased with the clear intent to build. Who are we to say it's improper, especially if what is being proposed are additional neighbors, eyes on the street, and potential customers for our shops?

  • Eric

    That should be developers*

  • http://westnorth.com PCC

    I toured the model condo when there were still units available, specifically asked about the parcels on either side, and *WAS* told that the developer intended to build on them in the future. There's a reason why the parking lot spaces to the south were rented and not sold. Although I didn't buy there, I did read my entire sales contract, checked on who owned the neighboring parcels, and found out about what they intended to build there. This is all part of due diligence.

    Infill developments on open spaces have improved property values, appearances, and amenities at several other urban renewal sites around the country, like Boston's West End, Portland's Lloyd Center, Los Angeles' Park La Brea, Battery Park City, even just to the north at Capitol Park/Potomac Place Tower. Attracting more shops, services, and residents to Southwest will dramatically improve the entire neighborhood's property values, and provide homes for thousands in a growing city.

  • http://westnorth.com PCC

    And yes, to keep things in perspective, we are talking about people who are freaking out about townhouses that are on the same block as Metro.

    If HPRB decides that the open spaces surrounding old buildings are equally historic, that sets an alarming precedent that would have outlawed hundreds of now-historic buildings that form the fabric of our city. Not just Modernist examples like Tiber Island's towers surrounding Law House, or the AIA headquarters that embrace the Octagon House, but even the Old Executive Office Building, the Library of Congress, and naturally the entire Smithsonian complex were built upon what was once thought of as reserved land. Cities change, and the best cities have built fabrics that weave together many layers of history instead of freezing everything at one arbitrary moment in time.

  • http://westnorth.com PCC

    One last point: over on the identical west side of the Town Center Towers complex, HPRB already signed off on a substantially identical plan:

  • swdcresident

    Curious if "Eric" and "PCC" are actually the developer's comments?

  • http://alexblock.net Alex B.

    I'm curious why at least one commenter in blog posts always asks if (accuses?) anyone expressing an even mild opinion in favor of development is a plant by the developer.

    Developers aren't the only ones in favor of development, after all.

  • anons

    Seems Bernstein put a lot of forethought into this. My first thought when I read the first couple sentences was that the developer made the mistake of selling out units before they had their long term zoning requirements in place, a mistake many make every year and it costs them millions and years to fight their residents in court. Then I saw Bernstein put it in every single sales contract. Well done. This article will get some play in the press, and twisted to read the "big bad developer wants to raze history" or some other bullshit that isn't true, but sells papers. Unless each and every resident wants to spend tens of thousand of dollars, only to lose in court, this isn't going anywhere. And I say, each resident, because Bernstein won't just go after the few residents who want this, they will go after the entire HOA, which means each resident will have to pay for the cost of the lawsuit.

    I did tour those condos a couple years ago when they were for sale, and they actually had a model of the total proposed development when complete, and it included the new towers being discussed here. If the residents objected to that overall developement they shoul dhave (1) not bought there, and (2) actually read their sales contract.

    All in all, much ado about nothing.

  • tim

    +1 for Eric and PCC. This seems like a perfectly rational development idea.

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  • Jeff G.

    "He says he does not recall signing the Public Offering Statement, and if he did, it was "absolutely not" made explicitly clear to him and other residents that they would be unable to oppose neighboring development."

    Well, *if* such language was in the document, then it absolutely was made clear to him and other residents. If he did not choose to read the document before signing it, or didn't ask for an explanation of language he did not understand, then that is his problem.

  • anon

    Have Nots meet the Haves. Whether the property and open space is historic, only the HPRB can decide. For a developer to threaten that that public and legal process can't happen is BS. And pointless, since DCPL or the ANC can just move the application.

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  • Barrie Daneker

    Bernstein bought something and now wants to change the zoning to build more. This in no way stops anyone one from public comment period! Good luck Mr. Bernstein with those cases, because you will get laughed at my the judge!

  • http://westnorth.com PCC

    I cannot defend the aggressive tone of Bernstein's letters, but both the facts and the law are clearly on their side. At the very contentious ANC meeting, someone from Bernstein pointed out that it was the residents' lawyer, not Bernstein, that put that language into the contract. The building was condo-converted through a partnership of the tenants' association and Bernstein, and an understanding at that time about developing the parking lots. This was not disputed by any homeowners; they instead complained that they were not the tenants' association -- but sorry, the contract remains in force, and if it is entirely their fault if they did not do their due diligence.

    @Barrie: Bernstein bought the land knowing that the mirror-image parcel on 6th St. was rezoned for an almost identical PUD. For DC to deny this application while having approved the other one would invite a different lawsuit -- that approving one PUD while denying an identical application is arbitrary and capricious.

    Oh, and it's really quite disgusting to see that "swdcresident" would anonymously slander the ethics of a neighbor. (Seems like NIMBYs are equally capable of sleaze.) Of course, I should expect such lowly behavior from someone so dense as to not notice that my full name, contact information, and life history is linked for the world to see.

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  • D

    The issue is the developer has changed the design and scope of the project to the detriment of the Waterfront Tower owners and neighbors. It is unreasonable and selfish of the developers to build the structures they have currently proposed.

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