Ill KAPLAN KIRSCH ROCKWELL

L::.

May 26,2011

Office of Zoning 441 4th Street, NW Suite 200-S Washington, DC 20001 Attn: Ms. Sharon Schellin, Secretary

Re: Z.C. Case No. 11-07- 2011 Campus Plan

Dear Ms. Schellin:

As set forth on the pending application for party status filed by the Tenley Campus Neighbors Association, Inc. (TCNA), this firm represents TCNA in connection with the above-captioned proceeding. Enclosed are an original and twenty copies of the pre­ hearing statement ofTCNA in the Zoning Commission's proceeding to review American University's 2011 Campus Plan, Case No. 11-07.

Please include copies of the enclosed in the pre-hearing packets your office is preparing for the Zoning Commission.

Thank you for your prompt consideration of our request.

Sincerely yours, ~~a Allison I. Fultz ~

Enclosure ZONING COMMISSION D1strict of Columbia

CASE NO, __lt- [;~2-­

EXH!BIT NO, __+-, _:_\ J,llL~--

Attorneys at Law Kaplan Kirsch & Rockwell LLP tel: (202) 955-5600 Denver • New York • Washington, DC 1001 Connecticut Ave., N.W., Suite 800 fax: (202) 955-5616 Washington, DC 20036 www.kaplankirsch.com CERTIFICATE OF SERVICE

I hereby certify that on May 26, 2011, copies of the Pre-hearing Statement ofTenley Campus Neighbors Association, Inc. were delivered via first class mail or messenger to the following:

Arlova Jackson Jeff Jennings DC Office of Planning District Department of Transportation 1100 4th Street, S.W., Suite E650 55 M Street, S.E., Suite 500 Washington, DC 20024 Washington, DC 20003

3D01 -Kent Slowinski 3D02 -Tom Smith 4505 Dexter Street, N.W. 4601 Tilden Street, N.W. Washington, DC 20007 Washington, DC 20016

3D03- Nan Wells 3 D04 - Stuart Ross 5057 Overlook Road, N.W. 5445 Potomac Avenue, N.W. Washington, DC 20016 Washington, DC 20016

3D05 - William Thomas 3D06- Ann Heuer 2830 University Terrace, N.W. 4705 Foxhall Crescents, N.W. Washington, DC 20016 Washington, DC 20007

3D07- Deon Jones 3D08 -Lee Minichiello 4400 Massachusetts A venue, N. W. 3109 44th Street, N.W. Letts Hall #513 Washington, DC 20016 Washington, DC 20016

3D09 -Ann Haas 3E01- Beverly Sklover 1601 45th Street, N.W. 4504 Albemarle Street, N.W. Washington, DC 20007 Washington, DC 20016

3E02- Matthew Frumin 3E03 -Jonathan Bender 4709 Albemarle Street, N.W. 4411 Fessenden Street, N.W. Washington, DC 20016 Washington, DC 20016

3E05 - Sam Serebin Neighbors for a Livable Community 4300 Van Ness Street, N.W. c/o Laurie B. Horvitz, Esquire Washington, DC 20016 Finkelstein & Horvitz, P.C. 7315 Wisconsin A venue, Suite 400 East Bethesda, MD 20814 American University c/o Paul A. Tummonds Jr. Goulston & Storrs, P.C. 1999 K Street, N.W., Suite 500 Washington, DC 20006-11 01

~~~ Allison I. Fultz AMERICAN UNIVERSITY 2011 CAMPUS PLAN DISTRICT OF COLUMBIA ZONING COMMISSION CASE NUMBER 11-07

PRE-HEARING STATEMENT OF THE TENLEY CAMPUS NEIGHBORS ASSOCIATION, INC.

May26, 2011

I. Introduction

The Tenley Campus Neighbors Association, Inc. (TCNA) provides this pre-hearing

position statement to the Zoning Commission concerning American University's (AU) proposal

to relocate the Washington College of Law from the commercial space where it is currently

housed on Massachusetts Avenue in Spring Valley to the Tenley Campus. TCNA, which is a

non-profit District of Columbia corporation comprised of most of the residents of single-family

homes located within 200 feet of AU's Tenley Campus, opposes AU's proposal on the grounds

that it is poorly conceived, insufficiently specific, and cannot possibly meet the requirements for

a campus plan special exception under the District of Columbia's zoning regulations. AU has

already failed to meet its burden to demonstrate that its campus plan, in particular its proposal for

the Tenley Campus, "is not likely to become objectionable to neighboring property because of

noise, traffic, number of students or other objectionable conditions." 11 District of Columbia

Municipal Regulations (DCMR) § 210.2 (2010); The President and Directors of Georgetown

College v. District of Columbia Bd. ofZoning Adjustment, 837 A.2d 58,66 (D.C. 2003).

Furthermore, AU has failed to provide sufficient information about its plans for the

Tenley Campus, in violation ofthe Zoning Ordinance requirement that a college or university must submit "a plan for developing the campus as a whole," which includes "the location, height and bulk, where appropriate, of all present and proposed improvements." 11 DCMR 21 0.4; Foggy Bottom Ass 'n v. District ofColumbia Bd. ofZoning Adjustment, 979 A.2d 1160, 1168

(D.C. 2009) (internal citations omitted). As AU acknowledges in its March 18, 2011, campus

plan submission to this Commission (AU, 2011 Campus Plan at 10, n.1), it has not provided

sufficient information about its Tenley Campus proposal to enable the Zoning Commission to make the findings necessary to approve the campus plan.

Twenty five years ago, in 1986, when American University wanted to buy the Tenley

Campus, AU, ANC3E, the neighbors ofthe Tenley Campus, and the District's Board of Zoning

Adjustment acknowledged that moving AU's law school to that site was incompatible with the residential character of the neighborhood. At that time, we understand that approximately 1000 students attended the law school. The increased intensity of use and traffic, and the loss of open space was certain to create conditions that the neighborhood property owners would reasonably deem to be objectionable. Based on that acknowledgement, which was memorialized in a written agreement dated May 13, 1986 (1986 Agreement), between AU and ANC-3E, the neighbors dropped their opposition to AU's request for a special exception, the BZA granted the special exception, and AU purchased the Tenley Campus from the order of Catholic nuns who had operated the Immaculata schools at that site. Since that time, the Tenley Campus has devoted the site to relatively low density uses, housing its Washington Semester program for overseas students and several administrative departments there.

Nothing has fundamentally changed in the last twenty-five years to make the neighborhood more amenable or suitable to a much more intense use of the Tenley Campus, and the relevant legal standard for granting a special exception has also remained the same. What has changed is that the area is now a neighborhood under siege with multiple new impingements on its residential character and, moreover, AU wants to increase the student

2 population of its law school to 2000 -more than a 50 percent increase over the size of the law

school in 2001 and roughly double what it was in 1986. New retail development along

Wisconsin A venue has heightened parking and traffic congestion in the side streets in the area.

Commuting volumes on Wisconsin and Nebraska Avenues are greater than ever. Forty-second

Street between Ellicott and Van Ness Streets is a drag strip that motorists, particularly those

entering the area from River Road, use to avoid Tenley Circle traffic. The new Tenley library is

a welcome addition to the neighborhood but is a magnet for traffic of all kinds. The Janney

Elementary School expansion is also welcome but is a further indication of a residential

neighborhood that is being overwhelmed by commercial and institutional development. School

pick-up and drop-off times for Janney and St. Ann's schools are already veritable circuses, with parents walking their children to and from school doors anxiously on the lookout for speeding

commuters or harried parents behind the wheels of cars on Yuma, 42nd, and Albemarle Streets.

Later this year, renovation and expansion of the Bon Secours building on Yuma Street is slated to begin. And not much further afield, the US Government is planning a major expansion of the

Department of Homeland Security on Nebraska Avenue that will clog major regional traffic routes and force more commuters into our neighborhood.

The TCNA calls the Zoning Commission's attention to the history of this site not because it is asking the Commission to enforce the agreement that was struck in 1986. TCNA and AU have agreed to disagree on the enforceability of that agreement and the Zoning Commission made clear in its consideration of the last AU campus plan that it did not have the authority to enforce a private agreement absent any incorporation of the agreement as a condition of the

Commission's zoning approval. But the 1986 Agreement is relevant because it reflected a clear and detailed understanding of what was necessary in terms of limiting development at the Tenley

3 Campus in order for AU to be a good neighbor whose activities would not threaten the

residential character of the neighborhood by causing objectionable conditions. A previous

iteration of AU's campus plan was subject to just such an agreement. In connection with its

approval of the 1990 campus plan for AU, the Board of Zoning Adjustment (BZA), whose

authority to hear and decide campus plan special exceptions has since been delegated to the

Zoning Commission, explicitly incorporated into its Order an agreement between the AU and

neighbors adjacent to the then-proposed law school site at , and conditioned its

approval of AU's proposal on compliance with the agreement. Glenbrook Road Ass 'n v. District

ofColumbia Bd. ofZoning Adjustment, 605 A.2d 22,31 (D.C. 1992). That agreement limited

the height and massing of the proposed building, established a cap on the number of students,

faculty and staff at the facility, and regulated many aspects of the law school's operation,

including hours of operation, placement of exterior lighting, and use of building entrances by the

public. Id. at 29-30. Accordingly, AU has on two occasions bound itself to limitations on the

scope of development and operation of its proposed law school in recognition of the significant

and potentially overwhelming impact such a facility is likely to impose on its neighbors, and the necessity to tightly regulate its physical attributes and operational characteristics.

Putting the Law School on the Tenley Campus is fundamentally incompatible with the neighborhood's residential character. A site whose use involves less than 500 students, at most 100 faculty and staff, and less than 100 parking spaces would have its intensity of use increase at least five-fold. AU's proposal will essentially move an entire small college to our neighborhood, which is zoned for low-density development of single-family dwellings on lots of at least 5,000 square feet. It also contemplates a nearly 50% increase in the law student population from the time of the last campus plan in 2001, when the law school moved to a

4 commercially-zoned site and student caps were set aside. The resulting traffic and imposition on

neighborhood parking, as well as increased noise and loss of open space would certainly create

objectionable conditions for neighboring properties and are incompatible with the residential

character of our community. The BZA has rejected changes to a campus plan of a similar size in

a similarly-zoned community on the basis of much less pronounced impacts. In Marjorie

Webster Junior College, Inc. v. District of Columbia Bd. ofZoning Adjustment, the District of

Columbia Court of Appeals upheld the BZA's denial of a proposal to convert a residential girls'

finishing school into a college offering short-term continuing education courses, even though no

expansion of the school's existing facilities was proposed. 309 A.2d 314, 319-320 (D.C. 1973).

The BZA found that the proposed change in student population (from 120 to 2,400) and

curriculum would convert a residential campus into a facility serving commuting students, and

would impose objectionable impacts on neighboring property owners because of the increased

number of people entering and leaving the neighborhood and concomitant increase in traffic, and

increased noise and level of activity on the school's property. !d. The BZA found that these

changes alone on the 9.5 acre site would have an unacceptably deleterious effect on its neighbors

in the low-density 1-R-A zoned community and denied the requested campus plan revisions. !d.

at 315-316. As discussed below, the impacts the surrounding neighborhood would suffer from

the proposed development of the Tenley Campus would be similar to but even more dramatic

than those the BZA found unacceptable in Marjorie Webster Junior College.

Approval of AU's proposal for the Tenley Campus would be a message to all those living

in the three blocks west ofWisconsin Avenue between Albemarle and Van Ness Streets that the

District has determined that their already-threatened residential neighborhood should be

sacrificed to the ambitions of an entity that is exempt from income or property taxes. That trade-

5 off is no more appropriate today than it was nearly forty years ago when the BZA rejected the

proposal ofMarjorie Webster Junior College, or twenty-five years ago when AU entered into its

agreement not to further develop the Tenley Campus, and simply has no basis in the zoning regulations.

II. Discussion of Objectionable Conditions and Neighborhood Impact

A. The Tenley Campus Neighborhood

The Tenley Campus is a long trapezoid comprising just over 8 acres with the eastern­ most point looking out over Tenley Circle. The dormitory, classroom and administrative facilities are concentrated on the east end, stretching back from Tenley Circle along Yuma Street to the north and Nebraska Avenue to the south. The western half of the site remains largely open space, consistent with its historic 19th century character as an estate and later, a girls' boarding school, except for 70-80 space above-ground parking lot accessible via Yuma Street. Historic

Dunblane House sits in the far west comer on the crest of a ridge that drops off to the west and from which one can see across the to Tyson's Comer and beyond. This open space consists of a large playing field where students play games, neighbors walk dogs or enjoy the shade of a large number of mature oak trees. This "green space" provides an essential buffer between the university's programmed activities on the site and the residential neighborhood that surrounds it on three sides.

To the west, the neighborhood retains its essential low-density residential character. But to the east, the greater Tenley Circle neighborhood is a mixture of commercial and public facility development, single-family homes, and commuter thoroughfare. Over the last ten years, this mix has evolved away from its residential character. Wisconsin A venue has undergone significant development, with the Whole Foods and Best Buy stores, restaurants and other shops creating

6 significant traffic and parking challenges on Wisconsin A venue and its side streets. Numerous

bus routes converge at Tenley Circle, and Nebraska and Wisconsin Avenues and River Road are

prominent and increasingly-busy commuter arteries.

The large city block between the Metro stop and the Yuma Street entrance to

the Tenley Campus and St. Ann's Church and Academy all create substantial automobile and

pedestrian traffic on Yuma and Albemarle streets at various times of the day, and Yuma Street is

further burdened by two truck access points for deliveries and trash removal at the Tenley

Campus. The western boundary of the Tenley Campus is 42nd Street, which is heavily used by

commuters as a bypass ofTenley Circle for those approaching it from either of these avenues as

well as from those coming into the District on River Road as noted in the District's "Rock Creek

Livability Study."

Parking is a growing challenge in the neighborhood. Most of the streets are marked as residential parking only for Zone 3, and due to the neighborhood's proximity to the Metro, many

Zone 3 residents drive from all over the Zone to park in the neighborhood and commute by

Metro. The churches at St. Ann's and St. Columba's are further sources of vehicular traffic. In addition, for the last year or more, construction workers' cars and contractor vehicles have taken up substantial amounts of parking.

B. AU's Purchase ofthe Ten ley Campus and the 1986 Agreement

AU has owned the Tenley Campus since 1986, completing the purchase of the property only after a lengthy dispute with neighbors that began in 1985 after AU applied to the Board of

Zoning Adjustment for a special exception to enable it to locate its law school there. The special exception enjoyed by the Catholic nuns who ran the Immaculata residential girls school that had occupied the site for decades would not convey with the property. ANC-3E and the neighbors within 200 feet of the Campus opposed AU's application, arguing that the intensity of use that would be created by the Law School would upset the delicate balance that kept the neighborhood residential. The BZA held a 10-hour hearing on the matter on December 18, 1985, after which it asked AU, ANC-3E and the neighbors to submit additional information on several issues. After these submissions and numerous meetings among the parties, AU announced on February 18,

1986 that it would revise its special exception request.

Several months of negotiations ensued among AU, the ANC and the neighbors, and on

May 13, 1986, the ANC and AU signed the 1986 Agreement (attached as Exhibit A) to reflect an understanding of the extent to which the neighborhood could withstand additional activity at this site. In the 1986 Agreement, AU agreed to restrict the Tenley Campus to an intensity of use not significantly greater than that ofthe Immaculata School. In return, the neighborhood agreed to support AU's application for a special exception. With substantial opposition out of the way,

AU obtained its special exception and closed on the purchase of the Tenley Campus.

The 1986 Agreement was designed to ensure that AU's use of the Tenley Campus "will be configured and conducted in such a manner that its current and long-term impact on the vicinity ofthe Property is minimized." It recognized that permitting an intensive use of the

Tenley Campus would threaten the residential character of the surrounding neighborhood, and therefore set forth a detailed set oflimits on the intensity of use of the Campus:

• the student population using the Campus would not exceed 500 students (~ 1);

• the faculty, administrative and support population using the Campus would not exceed 125 individuals(~ 4);

• students housed on the property were not permitted to have automobiles (~ 6);

• the above-ground parking lot on the Campus would have a maximum capacity of 76 cars (~ 7);

8 • the administrative offices located on the Campus would serve functions that would not "generate any appreciable amount of commutinig to and from the Property (such as 'walk-in' services for the general population of the University)"; and

• while the principal activity at the Campus was to be the Washington Semester program, "in the event that the program is substantially altered or discontinued, the University agrees to locate to the Property comparable and compatible academic programs [which programs] shall comply with the restrictions and satisfy the terms and conditions of this Agreement."(~ 2).

TCNA has summarized these provisions here not because it is requesting that the Zoning

Commission limit AU to what it agreed to in 1986, but because what the community, AU and the

BZA agreed was necessary to preserve the residential character of the neighborhood 25 years ago applies with even greater force today and provides an important "baseline" for appropriate development. While AU has not been responsible for the extensive development of public and commercial facilities that have taken place in recent years and are still underway in our area, AU and the families who live around the Tenley Campus are where we are- in a neighborhood that is already dangerously close to losing its residential character.

C The 2011 Proposal For The Tenley Campus

AU has not demonstrated that its proposal does not result in "unreasonable campus expansion into improved low-density districts". 11 DCMR 210.3; George Washington Univ. v.

District of Columbia Bd. ofZoning Adjustment, 831 A.2d 921,942 (D.C. 2003) (citing Levy v.

District of Columbia Bd. ofZoning Adjustment, 570 A.2d 739, 742 (D.C.1990) (campus development cannot "unreasonably expand the campus"); George Washington Univ. v. District of Columbia Bd. ofZoning Adjustment, 429 A.2d 1342, 1349 (D.C.1981) (purpose of campus plan regulations is to "keep universities from expanding into residential neighborhoods without control")). Instead, AU envisions the demolition of several existing buildings and the construction of over a quarter of a million square feet of new space on the Tenley Campus in the

9 midst of a low-density neighborhood zoned for single-family homes. (AU's total requested square footage is 300,000, compared to 190,000 at the current Washington College of Law site.)

From the caps in the 1986 Agreement, AU proposes a four-fold increase in the number of students (from 500 to 2000) and a large increase in the number of faculty and staff (125 to 500).

While locating the Washington College of Law at the Tenley Campus is desirable to AU because ofits access to the Metro, AU clearly understands that the number of cars going to and from the

Tenley Campus would increase dramatically, and perhaps by an even greater proportion than the increase in the number of students. AU proposes not only retaining the existing surface parking lot's 79 spaces, but also building an underground parking facility of 400-500 spaces.

The attendant impacts on the neighborhood of this massive development would be substantial. With regard to traffic, the most serious issue is that AU has no design or plan to keep heavy traffic associated with the site from flowing onto residential streets, such as Warren,

42nd and Yuma. In addition, although AU has not yet submitted any detailed traffic plan related to the Tenley site, it is clear that a large increase in daily use will contribute to existing and future traffic bottlenecks in the area. In fact, AU's draft traffic study dated March 11, 2011 acknowledges that Tenley Circle and other surrounding areas are anticipated to have unacceptable levels of delay without giving effect to the relocation of the AU law school.

Moving the law school to the Tenley Campus will only add to the daily gridlock on Wisconsin and Nebraska, forcing even more commuter traffic to cut through our neighborhood. (The current students on the site are mainly international students that do not drive.)

With regard to parking, the underground parking lot would likely be used mostly by faculty and staff. Even ifhalfthe campus population used Metro (a very optimistic scenario given that, according to AU's own submission, only 10% use Metro now), where will the extra

10 1,250 or so additional cars park? Even with a tough and thoughtful parking enforcement plan, which AU has yet to produce, many cars will park in the neighborhood. And AU has made no provision we know of for "special events" at the Law School and other programs regularly conducted by a law school, such as continuing legal education courses (CLE), symposia and the like, or growing enrichment programs such as "OLLI at AU" (Campus Plan at 16) which attract traffic to the campus that goes far beyond what would be created by students, faculty and staff alone.

The unsubstantiated contention that this kind of disruption to a residential neighborhood is somehow justified by hypothetical economic development benefits to the Wisconsin A venue corridor has no place in the Zoning Commission's consideration of AU's Tenley Campus proposal. Even if AU could demonstrate those benefits with something more than bald assertions, which it has not done (and, we submit, is unable to do), those imaginary benefits are irrelevant . Nowhere in the D.C. code or the zoning regulations or the case law interpreting any of those provisions is there any suggestion that economic development benefits can be given any weight to the standard by which campus plan proposals in residential neighborhoods should be measured. That standard speaks only to whether a proposed university development would create conditions that would be objectionable to the residents who already live there. Even if the economic development benefits posited by AU were not speculative and illusory, the fact is that those living in the neighboring properties do not want them. A residential neighborhood's character is supposed to be protected under the applicable standard, not transformed into a mixed use area because an aggressive, ambitious and tax-exempt institution wants it that way..

11 D. AU Has, Ignored and Rejected Neighbor Concerns

Although virtually nobody anywhere near the Tenley Campus supports AU's proposal

because it is, in fact, blatantly objectionable to neighboring properties, TCNA members have

participated in good faith in the frustrating process of consultation with the University in an

effort to find a "middle way." TCNA, for example, retained a prominent architect to offer

suggestions on the site plan, and developed a creative proposal to protect the west side of the

property on a long-term basis.

AU has met the neighbors' efforts to craft a solution that would benefit AU and lessen­

but not eliminate-the negative impacts of moving an expanded law school to the Tenley

Campus with numbing process but no meaningful substance. AU's contentions in its Campus

Plan submission concerning extensive consultation with the neighborhood are misleading in the

extreme. While it is correct that AU convened countless meetings over 18 months or more, those

meetings were little more than a stonewalling process apparently designed to present the fig leaf

of neighborhood engagement to the Zoning Commission. While AU early on recognized that its

initial proposal to obliterate essentially all of the open space on the Tenley Campus was a non­

starter, it has made no meaningful efforts to compromise or even respond to requests for basic

information on such issues as parking over the last year. AU has yet to come forth with detailed

information to address the concerns expressed by the TCNA, such as a parking plan or proper

traffic analysis, and has rejected out of hand the TCNA's request for some sort of commitment that the open space on the western end of the Tenley Campus will not be a focus of more

development in the next campus plan.

12 The TCNA, with the support of the many neighbors it. represents, has made several specific requests to AU for information and modifications on its plans for the Tenley Campus, which the AU has not agreed to provide. Those include:

1. adequate provision for student and staff parking as set forth in a detailed and enforceable parking plan, including at least as much underground parking as is needed at the current site (approximately 500 spaces), to prohibit students and staff from parking on residential streets;

2. adequate provision for traffic circulation that keeps the flow of traffic associated with the Tenley Campus off residential sheets, including 42nd, Yuma and Warren streets;

3. preservation and care of historic properties, including properties designated or nominated for designation as historic under DC and federal law, and specifically including "Dunblane;"

4. to enhance historic preservation designations, preserve existing open space and provide an essential buffer, a long-term, enforceable plan to protect the western half of the Tenley Campus from further development as "green space," beyond the expiration ofthe proposed 2011 campus plan

III. Conclusion

As AU has failed to address any ofthese suggestions, we respectfully submit that the current AU plan as regards the Tenley site is so clearly inadequate and so objectionable that the

Zoning Commission should reject it outright. To the extent that AU modifies its Campus Plan in an attempt to meet its burden that such plan is "not likely to become objectionable to neighboring property because of noise, traffic, number of students and other objectionable conditions," and the Zoning Commission chooses to accept such re-submission, we respectfully request that the

Zoning Commission impose restrictions and conditions on the use of the Tenley Campus, including significant population caps at that site, in accordance with prior decisions".

13 We appreciate the Commission's consideration of our concerns.

Allison I. Fultz Kaplan Kirsch & Rockwell, LLC 1001 Connecticut Ave., NW, Suite 800 Washington, DC 20036 Tel: (202) 955-5600 Fax: (202) 955-5616 E-mail: [email protected]

Counsel for Tenley Campus Neighbors Association, Inc.

14 Exhibit A

1986 Agreement

[attached hereto] AGREEMENT

THIS AGREEMENT, made this 13th day of May, 1986, by and bet~een THE AMERICAN UNIVERSITY, a corporation chartered by a Special Act of Congress, operating a non-profit institution of higher education within the District of Columbia {hereinafter the •university") and

ADV!SORY NEIGHBORHOOD COHMISSlO~ 3E (hereinafter the

"ANC") •

W I T N E S S E T H:

WHEREAS, the University is the contract purchase~ of certain R-1-B property in the-District -o·f ·calum:Dia kno·•n as

Lot l, Square 1728, and the improvements thereon located a~

~344 , N'.W. (hereinafter the "?:-ope~ty"):

WHEREAS, the University has filed an application .,..ith the District of Columbia Board of Zoning ACfUStment (hereinafter the "BZA") for a special exception to use the

Property as an instit~tion of high~r lea~ning, ~aid application identified as BZA Application No. 14372 (hereinafter th'e 11 Application") ;

WHEREAS, the University intends to locate to the Property its Washington Semester- and Study Abroad Program (hereinafter the "Program") and certain administrative offices (hereinafter the "Administrative Offices"); -2-

WHEREAS, the ANC has previously taken no position on the Application;

WHEREAS, the University nov desires the support of the

ANC in connection with the Application;

WHEREAS, the ANC agrees to support the Application provided that the use of the Property will be configured and conducted in such a manner that its current and long­ term impact on the vicinity of the Property is minimized, as further described herein;

NOW THEREFORE, in consideration of the foregoing and for other goo

1. Th£ Un~versity will lc:ate to the Property only the ?rogram and the Administrative Offices •as defined herein. The University agrees that the student population using the Property will not exceed 500 student-s. The University further agrees that it will provide dormitory accommodations for a maximum of 450 student~ on the Property. Classroom activity to take place on the Property will be related only to the Program.

2. The University represents that it has no current plans to discontinue or substantially alter the Program. -3-

However, in the event the Program is substantially altered or discontinued, the University agrees to locate to the Property comparable and compatible academic programs. Such comparable and compatible academic programs shall comply with the restrictions and satisfy the terms and conditions of this Agreement.

3. In connection vith this Application, the University's use of the Property shall occupy only structures pres~ntly existing on the Property without any new structures or enlarging any existing structures, except as renovated pursuant to the University's pre-hearing submissio!-l--=>n the application·_filed·Yith che BZA on April 30, 1986 (hereinafter the "University's pre-hearing submission"}.

4. The University agrees that the faculty, administrative and support population using. the Property vill not exceed 125 individuals.

5. The University agrees that the Administrative Offices to be located to the Property will serve only University functions that will not generate any appreciable amount of commuting to and from the Property (such as wwalk-in" services for the general population of the

Universi~y). -4-

6. The University agrees to require, as a condition of a student's acceptance into the Program, that students housed on the Property vill not be permitted to have automobiles. In very limited circumstances a student housed on the Property may be penmitted to have an automobile, but in such cases the student shall be required by the University to store their vehicle in parking lots on the main campus. The University shall use best efforts to mo~i~or and en~orce these restrictions and shall take disciplinary action against students violating these restrictions.

7. The University agrees to provide a surface parking lot vith a maximum capacity of 76 cars on the Property as set forth in the University's pre-hearing submission. Nine visitor parking spaces ~ill be provided in the location set forth in the University's pre-hearing submission. The access point to and from the parking lot vill be located on Yuma Street as identified in the University's pre-hearing submission. The University agrees to phy~ically restrict access at all times to the parking lot to only those University employees vho conduct their principal activities on the Property. The University vill designate the exit from the parking lot as "right-turn only" and the University shall use best efforts to persuade the District of Columbia Department of Public Works -s-

(hereinafter the "DPWw) to physically configure the access in such a manner as to require right-turn only exits, as set forth in the University's pre-hearing submission. The

University f~rther agrees to use best efforts to persuade OPW to locate ftright-turn onlyft signs across from the parking lot exit and from the two service/delivery exits on Yuma Street.

8. The University agrees to provide security patrols of the campus by University police. Such patrols vill also monitor the parking lot for unauthorized parking. Resident

director~ and resident advisors will live on-campus, and vill be responsible for the day-to-day operation of the dor=mitories.

9. The University will provide an on-campus food

service for the residents of ~he Property. Th~ University

agrees that it will not locate on the Prope~ty a tavern, pub or other type of facility oriented around the serving of alcoholic beverages. This does not prevent the University from providing beer and wine service at the food service faciliiy to be located on the Property, but in any event this facility vill not provide beer and vine after

10:00 p.m. on a regular basi~.

10. The University agrees to either upgrade or maintain the existing fence surrounding :he portions of the -6-

Property abutting warren, 42nd, and. Yuma Streets, and further agrees to close openings in the fence on the Warren Street side of the Property and at the present vehicular access point at the intersection of 42nd and Yuma Streets. The University shall regularly mainta\n the fence in good repair.

11. The University agrees to petition DPW and use its best efforts to get DPW to establish residential permit par~ing along the ncrth side of Warren Street betveen Nebraska Avenue and 42nd Street. The University further agrees to .petition DPW and use its best effor-ts to get DPW to prohibit parking along the east side of 42nd Str-eet betveen Warren and Yuma Streets. The University also agrees to actively participate vith the hNC in requesting the District of Columbia government to enforce parking violations on the streets bordering the Property, and vill vork vith the ANC in resolving traffic concer-ns in the vicinity of the Property.

12. For any summer semester in vhich the Program participants fail to utilize the dormitories on the Proper-ty to full capacity, those beds may be used by other­

University students, provide~that the University first uses best efforts to locate non-Program students to empty dormitory space on the main campus. If such non-Program _,_ students do use the dormitory on the Property, those students are subject to the provisions of Paragraph 6.

13. The University agrees to file an application to close 41st Street, N.W. betveen Warren St~eet and Yuma Street. The ANC agrees to provide active vritten and oral support for this application before the District of Columbia Council and upon special request reasonable support before other necessary District of Columbia and Federal agencies.·

14. The University agrees to landscape the Property as indicated .in the .lJniv.ersit1's pre-he~ring suP.mission including but not limited to a landscape buffer consistin~. of berms and planting that shall screen neighboring r·esidents' from vievs of and from sound and light from the parking lot. In particular, th~ berms, trees and shrubbery vill shield neighboring property from the neadlights of automobiles entering and exiting the parking lot. The University vill maintain and supplement this landscape plan as necessary to prevent headlights from shining directly into the neighborhood and to minimize other objectionable noise and "light from occurring in the neighborhood. The University shall maintain all landscaping in a healthy, groving condition. Further, the University shall keep the Property free of refuse and debris. -a-

15. The University agrees to light the Property as indicated in the University's pre-hearing submission. The lighting on the Property shall be (a} directed so that no part of the cone of light of outside lighting falls outside the perimeter of the Property, (b) shielded so that no direct rays of the lights extend beyond the boundaries of the Property, and (c) a directional lighting system that will direct light in~ard, do~nvard, and a~ay from the perimeter of the Property, so that light 39ill off the perimeter of the Property _is minimized.

16. The University will limit construction hours and noise levels on the Property to those specified by the District of Columbia Noise Control Act of 1977, 24 D.C.

Reg. 5331, D.C. La~ No. 2-53, as amended. No work shall be performed on Saturdays before 9:00 a.m. or after 7:00 p.m. or at any time on Sunday. To the extent feasible, all construction vehicles vill exit the Property by a right-hand turn onto Yuma Street.

17. The University agrees to operate a shuttle bus serv1ce• between the Property and the Un1vers1ty• • • f s ma1n.. campus on a regular basis.

18. The University agrees to submit to, and use its best efforts to obtain approval from, the BZA the terms and conditions of this Agreement to be incorporated into the -9-

BZA's approval of the University's Master Plan, Yhich the University shall submit to the BZA in 1986.

19. The parties to this Agreement Yill jointly request at the BZA hearing on the Application that the BZA incorporate all of the terms and conditions of this Agreement in any final order relating to this Application.

20. The University agrees to notify the ANC prior to filing any BZA application affecting the ?roperty.

21. Modification of this Agreement shall be in vriti:ng and signed by all the pareies·hereeo. All parties promise to bargain in good faith during any future negotiations concerning the modification of the terms of this Agreement,

22. The J..NC agrees to provide active vri·tten and oral support for the University in obtaining th~ approval of the Application, as supplemented by this Agreement, before the BZA and upon special ·request any reasonable support in any necessary related applications for approval to any other District of Columbia agency in connection vith the renovation and occupancy of the Property, provided such applications are consistent with the terms and conditions of this Agreement. -10-

23. The failure of the ANC to demand strict performance of the terms of, or to exercise any right conferred in, the Agreement shall not be construed as a waiver or relinquishment of its right to assert or rely upon any such term or right in the ·future.

24. Should the BZA fail to incorporate any term or condition of this Agreement into the final order relating to this Application or to the Master Plan, this Agreement remains binding upon the parties. If all or part of ~ny provision of this Agreement shall become or be declared unlavful or shall be specifically modified by the BZA, the rights and obligations of the University and the ANC shall be reduced only as much as is necessary to remove the illegality or to make the provision consistent vith the BZA ot"der.

25. This Agreement constitutes the e~ire agt"eement of the parties with respect to the subject matter contained herein, supet"sedes any prior or contemporaneous agreement or understanding betveen the parties, and may not be amended or changed except as provided herein.

26. The University's pre-hearing submission is incorporated by reference into this Agreement. -11-

27. All part$ of this Agreement shall be governed by and interpreted and construed in accordance vith the lavs of the District of Columbia.

lN WITNESS ~riEREOF, the partie~ hereto have caused this Agreement to be executed by persons duly authorized to bind them as of the .day and year first above vritten.

ATTEST: THE AMERICAN tm IVERS I TY ~I

T:-easur

CORPORATE SEAL:

ATTEST: ADVISORY NEIGHBORHOOD COMMISSION 3E

By: -~ .~n~ chaiU D~STRICT OF COLUMBIA * * TO WIT: CITY OF WASHINGTON *

I HEREBY CERTIFY that on this 13th day of May, 1986, before the undersigned Notary Public in and for the District and City aforesaid, personally appeared Donald L. Myers, Yho made oath in due form of law that he i~ the Vice President for Finance and Treasurer of THE AMERICAN UNIVERSITY, is authorized to act on behalf of THE AMERICAN UNIVERSITY, and that the matters and facts set forth in the afores~id Agreement are true to the best of his personal knowledge, information and belief.

. ' .-1 /(IJ. j({ {i 1'(·«.,6 L: Notary Pub~c

Ky Commission Expires on:

(NOT~_IAL SE~]

* t: *

DISTRICT OF COLUMBIA * * TO WIT: CITY OF WASHINGTON *

I HZREBY CERTIFY that on this 1.3th day of May," 1986, before the undersigned Notary Public in and for• the District and City aforesaid, personally appeared Erling Hansen, who made oath in due form of law that he is the Chairman of ADVISORY NEIGHBORHOOD COKK!SSlON 3E, is authorized.to act on behalf of ADVISORY NEIGHBORHOOD COMMISSION 3E, and that the matters and facts set forth in the afoiesaid Agreement are true to the best of his personal knowledge, information and belief.

Notary Public

My Commission Expires on: Lz-t· h~tL~t,v ~~-~1~ &" (NOTARIAL SEAL)