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HomeMy WebLinkAbout09-05 Proffer StatementAction: PLANNING COMMISSION: July 6, 2005 Recommended Approval BOARD OF SUPERVISORS: September 14, 2005 APPROVED DENIED PDRes 1433 -05 AMENDMENT AN ORDINANCE AMENDING THE ZONING DISTRICT MAP REZONING #09 -05 OF FREEDOM MANOR WHEREAS, Rezoning #09 -05 of Freedom Manor, was submitted to rezone 26.87 acres from RA (Rural Areas) District to RP (Residential Performance) District for 70 single family detached homes. The property fronts on the east side of Papermill Road (Route 644), approximately 2,300 feet west northwest of the intersection of Papermill Road (Route 644) and Front Royal Pike (Route 522), in the Shawnee Magisterial District, and is identified by Property Identification Number (PIN) 64 -A -23. WHEREAS, the Planning Commission held a public hearing on this rezoning on July 6, 2005; and WHEREAS, the Board of Supervisors held a public hearing on this rezoning on September 14,2005; and WHEREAS, the Frederick County Board of Supervisors finds the approval of this rezoning to be in the best interest of the public health, safety, welfare, and in conformance with the Comprehensive Policy Plan; NOW, THEREFORE, BE IT ORDAINED by the Frederick County Board of Supervisors that Chapter 165 of the Frederick County Code, Zoning, is amended to revise the Zoning District Map to change 26.87 acres from RA (Rural Areas) District to RP (Residential Performance) District for 70 single family detached homes, as described by the application and plat submitted, subject to the attached conditions voluntarily proffered in writing by the applicant and the property owner. PDRes 433 -05 This ordinance shall be in effect on the date of adoption. Passed this 14th day of September, 2005 by the following recorded vote: Richard C. Shickle, Chairman Ave Barbara E. Van Osten Aye Gina A. Forrester Nay Gary Dove Aye Lynda J. Tyler Nay Bill M. Ewing Aye Gene Fisher Aye A COPY ATTEST John R. Riley. Jr. Frederick County Administrator Greenway Engineer age May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005; August 10, 2005 FREEDOM MANOR PROFFER STATEMENT REZONING: RZ# 09 -05 Rural Areas (RA) District to Residential Performance (RP) District PROPERTY: 26.87 -acres (here -in after the "PROPERTY Tax Parcel 64- ((A)) -23 Freedom Manor Rezoning RECORD OWNER: Steve A. DuBrueler et als APPLICANT: Steve A. DuBrueler et als (here -in after the "APPLICANTS PROJECT NAME: FREEDOM MANOR ORIGINAL DATE May 28, 2004 OF PROFFERS: REVISION DATE: August 10, 2005 Preliminary Matters Pursuant to Section 15.2 -2296 Et. Seq. of the Code of Virginia, 1950, as amended, and the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the undersigned Applicants hereby proffer that in the event the Board of Supervisors of Frederick County, Virginia, shall approve Rezoning Application 09 -05 for the rezoning of 26.87± -acres from the Rural Areas (RA) District Residential Performance (RP) District, development of the subject property shall be done in conformity with the terms and conditions set forth herein, except to the extent that such terms and conditions may be subsequently amended or revised by the applicant and such be approved by the Frederick County Board of Supervisors in accordance with the said Code and Zoning Ordinance. In the event that such rezoning is not granted, then these proffers shall be deemed withdrawn and have no effect whatsoever. These proffers shall be binding upon these Applicants and their legal successors, heirs, or assigns. The subject property, identified as Freedom Manor, and more particularly described as the lands owned by Steve A. DuBrueler et als, being all of Tax Map Parcel 64- ((A)) -23. The property is shown by plat and survey dated January 9, 2002 and revised July 24, 2003, prepared by Mark D. Smith, L.S., of Greenway Engineering, entitled "Final Plat for Minor Rural Subdivision of the Land Standing in the Name of Doris F. Casey" and recorded as Instrument Number 030029417. File #3230/EAW 1 Greenway Engineering. May 28, 2004; Revised July 28, 2004 Freedom Manor Rezoning October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005; August 10, 2005 A. Generalized Development Plan The Applicants hereby proffer to develop the Property in substantial conformity with the Generalized Development Plan prepared by Greenway Engineering and dated 4/20/05, a copy of which is attached. The Generalized Development Plan is intended to delineate the road systems that will serve the 70 single- family detached urban lots, the general location of road efficiency buffer, the Shenandoah Memorial Park buffer, and the bicycle and pedestrian trail facility. B. Residential Use Restriction 1. The Applicants hereby proffer that the Property shall be used for the development of Single Family Detached Urban Residences only, and all other housing types otherwise permitted in the RP zoning district shall be prohibited. developed as single family detached urban residential lots. 2. The Applicants hereby proffer to limit the total number of single family detached dwelling units to 70 on the Property. C. Transportation 1. Site Access The Applicants hereby proffer to provide access to the Property through the construction of a primary entrance on Papermill Road (Route 644) and a secondary entrance on Front Royal Pike (Route 522). The Applicants shall be responsible for the construction of the internal road improvements and for the construction of all off -site improvements located on Tax Map Parcel 64- ((A))- 23A. The internal road improvements and construction of all off -site improvements located on Tax Map Parcel 64- ((A)) -23A shall be constructed to base asphalt and open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision. Furthermore, the Applicants shall provide for a temporary cul -de -sac at the northern property boundary to allow for future inter parcel connection to Tax Map parcel 64 -A -19. The entrances, internal road system and temporary cul -de -sac described above are depicted on the proffered Generalized Development Plan exhibit for Freedom Manor. 2. Traffic Calming Measures and Route 522 Connection The Applicants hereby proffer to implement a curvilinear street design for the internal street system serving the 26.87 -acre site to discourage cut through traffic between Front Royal Pike (Route 522 South) and Papermill Road (Route 644). Furthermore, the Applicants hereby proffer to design a traffic chocker for review and approval by VDOT, and then construct the traffic choker between the Front Royal Pike entrance and the residential lots that will be located on Tax Map File #3230 /EA W 2 Greenway Engineering May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005; August 10, 2005 Parcel 64- ((A)) -23A. Additionally, a right turn and taper lane will be designed and constructed to this entrance within the Front Royal Pike right -of -way that will be open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision. 3. Elimination of Westwood Drive Connection The Applicants hereby proffer that they will not make a road connection to Westwood Drive (Route 822). This guarantee will be achieved through a deed restriction upon the pertinent property, identified as Tax Map 64- ((A)) -19 and currently owned by the Applicants, a copy of which is attached. The Applicants will legally record this road connection restriction within 30 days of final rezoning approval and prior to any development activity on the Property to ensure that this restriction appears in the chain of title for Tax Map parcel 64 -A -19. 4. Papermill Road Dedication The Applicants proffer a right -of -way dedication of twenty -feet in width along the entire Papermill Road frontage on the Property. 5. Offsite Road Contribution The Applicants hereby proffer to contribute seven thousand dollars ($7,000) per unit for offsite road improvements to Papermill Road, including the realignment of the Papermill Road and Front Royal Pike intersection and other associated Papermill Road improvements. The contribution will be paid to the Treasurer of Frederick County, Virginia for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. 6. Revenue Sharing All of the monies paid pursuant to above item 5, Papermill Road Improvements, together with the property value of land dedicated as public road right -of -way through above item 4, Papermill Road Dedication shall be eligible for inclusion in the Frederick County contribution to an applicable highway improvement revenue sharing project. D. Shenandoah Memorial Park Buffer Freedom Manor Rezoning The Applicants hereby proffer to provide a fifty -foot (50') buffer along the entire southern property line against the Shenandoah Memorial Park. The fifty -foot (50') buffer will not contain any portion of residential lots developed within the Property. A fence that is a minimum of six feet (6') in height, resembling a traditional iron fence style for cemetery enclosures will be constructed within the File #32301EA W 3 Greenway Engineering May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005; August 10, 2005 E. Papermill Road (Route 644) Road Efficiency Buffer Easement Freedom Manor Rezoning buffer along the shared Shenandoah Memorial Park property line. A bicycle and pedestrian trail facility will be constructed within a twenty -foot (20') non- exclusive easement, located adjacent to this fence. In the remaining thirty -foot (30') portion of the buffer, a single row of evergreen trees will be planted on ten foot (10') centers. Within the required road efficiency buffer the applicants hereby proffer to provide a twenty -foot (20') non exclusive easement for the development of a bicycle and pedestrian facility within the established fifty -foot (50') road efficiency buffer along Papermill Road (Route 644). F. Bicycle and Pedestrian Facility The Applicants hereby proffer to construct a ten -foot (10') wide asphalt bicycle and pedestrian facility within the twenty -foot (20') non exclusive easement as stated in Proffers D and E above. The maintenance of this facility shall initially be the responsibility of the homeowners' association, and will be available for dedication to the Frederick County Department of Parks and Recreation if requested in writing by Frederick County. G. Monetary Contribution to Offset Impact of Development The undersigned owners of the above described property hereby voluntarily proffer that in the event rezoning application 09 -05 is approved, the undersigned will pay to the Treasurer of Frederick County, Virginia $9,845 for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. H. Monetary Contribution to Establish Homeowners' Association Fund The Applicants hereby proffer to establish a start-up fund for the Freedom Manor Homeowner's Association (FMHOA) in the amount of $500.00 for each platted lot within the Freedom Manor community, of which the assessment for each platted lot is to be collected at the time of initial transfer of title and to be directed to the FMHOA fund. Language will be incorporated into the FMHOA Deed of Dedication and Restrictive Covenant Document that ensures the availability of these funds prior to the transfer of ownership and maintenance responsibility from the developer to the FMHOA. The start-up funds for the FMHOA shall be made available for the purpose of maintenance of all improvements within the common open space areas, liability insurance, street light assessments, and property management and/or legal fees. File #3230 /EAW 4 Greenway Engineering May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005; August 10, 2005 I.) Signatures The conditions proffered above shall be binding upon the heirs, executors, administrators, assigns and successors in the interest of the applicant and owner. In the event the Frederick County Board of Supervisors grants this rezoning and accepts the conditions, the proffered conditions shall apply to the land rezoned in addition to other requirements set forth in the Frederick County Code. Respectfully Submitted: By: By: By: File #3230/EAW Steve A. DuBrueler 20 0C t/ ue Madeline F. DuBrueler Commonwealth of Virginia, City /County of CL 47.. G �0 The foregoing instrument was acknowledged before me this My Commission Expires 9 s� To Wit: day of Freedom Manor Rezoning Date 1 /2_ f Date �2 /.6`,5c Date 5 er Notary ..lic 09/14/2005 15:02 Tax Map ID: Prepared by and Return to: 5404502293 84- ((A))•19 Sean A. Everhart, PLC 158 Front Royal Pike, Suite 305C Winchester, Virginia 22602 DECLARATION OF RESTRICTIVE COVENANT WITNESSETH: SEAN A EVERHART PLC PAGE 02/06 THIS DECLARATION OF RESTRICTIVE COVENANT, is made this day of 2005, by and among Steve A. DUBRUELER, Ray N. DUBRUELER, and Madeline F. DUBRUELER (hereinafter referred to as "Declarants the COUNTY OF FREDERICK, Virginia (hereinafter referred to as "County FIRST BANK, a Virginia Banking Corporation (hereinafter referred to as `Bank and Stephen G. BUTLER, TRUSTEE (hereinafter referred to as "Trustee WHEREAS, Declarants are the fee simple owners of certain real property Lying and being situated two miles south of the City of Winchester, in Shawnee Magisterial District, Frederick County, Virginia, containing 2.2021 acres, more or less, and further identified as Tax Parcel No. 64- A-19 (the "Property"); WHEREAS, Declarants desire to impose a restrictive covenant on the Property regarding access to Route 822 (Westwood Drive); WHEREAS, Bank is the beneficiary of two Notes, each secured partially or wholly by the Property, and evidenced by two deeds of trust recorded as Instrument Numbers 020018297 (modified in Instrument 040024652) and 050005350 among the land records of Frederick County, Virginia, and Trustee being the trustee under aforesaid deeds of trust; NOW, THEREFORE, Declarants hereby impose on the Property the following restrictive covenant: At such time the Frederick County Board of Supervisors approves the Freedom Manor Proffer Statement and Generalized Development Plan to allow for an inter parcel connection that will provide access to the Property: (1) there shall be no entrances from or across the Property from Route 822 (Westwood Drive) and (2) there shall be no access across the Property to Route 822 for the benefit of any other property and no other property shall have access across the Property to Route 822. This Restrictive Covenant shall run to the benefit of, and be enforceable by, the County. This Restrictive Covenant shall run with, and be appurtenant to, the Property, and shall be binding upon the Declarants, their heirs, personal representatives, successors, and assigns. The Bank and Trustee join in the execution of this Declaration of Restrictive Covenant to evidence their consent and approval of the placement of the restrictive covenant on the Property. Page 1 of 5 09/14/2005 15:02 5404502293 SEAN A EVERHART PLC PAGE 03/06 WITNESS THE FOLLOWING SIGNATURE(S) AND SEAL(S): My Commission Expires: (SEAL) Steve A DuBrueler (SEAL) Ray N. DuBrueler (SEAL) Madeline F. DuBrueler COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler, this day of September, 2005. Notary Public Page 2 of 5 09/14/2005 15:02 5404502293 My Commission Expires: SEAN A EVERHART PLC PAGE 04/06 FIRST BANK, a Virginia Banking Corporation By: (SEAL) Earl W. Foreman, Vice President COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Earl W. Foreman, Vice President of First Bank, a Virginia Banking Corporation, this day of September, 2005. Notary Public Page 3 of 5 09/14/2005 15:02 5404502293 Stephen G. Butler, Trustee COMMONWEALTH OF VIRGINIA CITY OF WINCHESTER, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Stephen G. Butler, Trustee, this day of September, 2005. My Commission Expires: Notary Public SEAN A EVERHART PLC PAGE 05/06 (SEAL) Page 4 of 5 09/14/2005 15:02 5404502293 SEAN A EVERHART PLC PAGE 06/06 My Commission Expires: COUNTY OF FREDERICK, VIRGINIA By: (SEAL) COMMONWEALTH OF VIRGINIA CITY OF WINCHESTER, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by this day of September, 2005. Notary Public Page 5 of 5 OUTPUT MODULE APPLICANT: LAND USE TYPE REAL EST VAL FIRE RESCUE Fire and Rescue Department Elementary Schools Middle Schools High Schools Parks and Recreation Public Library Sheriffs Offices Administration Building Other Miscellaneous Facilities METHODOLOGY: NOTE. NOTES: SUBTOTAL LESS: NET FISCAL IMPACT NET CAP. FACILITIES IMPACT Project Description Freedom Manor RP $9,177,000 6 Model Run Date 05/20/05 MTR Net Fiscal Impact Costs of Impact Credit: Required (entered in Capital Faciltiies col sum only) $950,090 50 Credits to be Taken for Future Taxes Paid (NPV) Cur. Budget Cur. Budget Cap. Future CIP/ Oper Cap Equip Expend /Debt S. Taxes, Other $45,095 5300,138 5176,554 $49,109 $238,393 $258,828 5107.450 $18,680 511,056 514,188 518,101 59,059 517,455 $75,623 INDEX: "1.0" If Cap. Equip Included 1.0 INDEX: "1.0" if Rev -Cost Bal, "0.0" if Ratio to Co Avg: PLANNING DEPT PREFERENCES 1.0 50 $19,272 5257,665 0.0 1.0 1. Capital facilities requirements are input to the first column as calculated in the model. 2. Net Fiscal Impact NPV from operations calculations is input in row total of second column (zero if negative); included are the one -time taxes /fees for one year only at full value. 3. NPV of future oper cap equip taxes paid in third column as calculated in fiscal impacts. 4. NPV of future capital expenditure taxes paid in fourth col as calculated in fiscal impacts. 5. NPV of future taxes paid to bring current county up to standard for new facilities, as calculated for each new facility. 6. Columns three through five are added as potential credits against the calculated capital facilities requirements. These are adjusted for percent of costs covered by the revenues from the project (actual, or as ratio to avg. for all residential development). Proffer calculations do not include include interest because they are cash payments up front. Credits do include interest if the projects are debt financed. Assumes 70 single family detached dwelling units on 26.87 acres zoned RP District (PIN 64- A -23). Due to changing conditions associated with development in the County, the results of this Output Module may not be valid beyond a period of 90 days from the model run date. $24,216 55,224 $2,258 50 $31,698 Total Potential Adjustment For Tax Credits Revenue- Net Capital Net Cost Per (Unadjusted) Cost Balance Facilities Impact Dwelling Unit $0 $0 $287,502 $205,545 524,216 $17,313 $5,224 $3,735 $11,317 58,091 $0 $0 $36,727 $26,257 $364,985 $260,941 $0 $0 Rev -Cost Bal Ratio to Co Avg 0.533 0.715 545,095 5644 $529,975 57,571 $00,137 $14,945 $2,965 $14,188 $0 $689,148 51,280 5213 $42 $203 $0 $9,845 5689,148 1 59,845 OUTPUT MODULE APPLICANT: LAND USE TYPE REAL EST VAL FIRE RESCUE Fire and Rescue Department Elementary Schools Middle Schools High Schools Parks and Recreation Public Library Sheriffs Offices Administration Building Other Miscellaneous Facilities METHODOLOGY: NOTES: Casey Swisher RP $15,732,000 6 SUBTOTAL LESS: NET FISCAL IMPACT NET CAP. FACILITIES IMPACT Model Run Date 04/19/04 CMM Net Fiscal Impact Costs of Impact Credit: Required (entered in Capital Faciltiies col sum only) $77,305 $514,522 $302,665 $443,705 $184,200 532,023 $18,953 $24,322 $31,030 $1,628,725 $0 INDEX: "1.0" If Cap. Equip Included INDEX: '1.0" if Rev -Cost Bal, "0.0" if Ratio to Co Avg PLANNING DEPT PREFERENCES Due to changing conditions associated with development in the County, the results of this Output Module may not be valid beyond a period of 90 days from the model run date. Credits to be Taken for Future Taxes Paid (NPV) Cur. Budget Cur. Budget Cap. Future CIP/ Oper Cap Equip Expend /Debt S. Taxes Other $84,187 5408,674 $15,529 $29,923 $129,639 1.0 $0 $33,037 $441,711 0.0 1.0 1.0 1. Capital facilities requirements are input to the first column as calculated in the model. 2. Net Fiscal Impact NPV from operations calculations is input in row total of second column (zero if negative); included are the one -time taxes /fees for one year only at full value. 3. NPV of future oper cap equip taxes paid in third column as calculated in fiscal impacts. 4. NPV of future capital expenditure taxes paid in fourth col as calculated in fiscal impacts. 5. NPV of future taxes paid to bring current county up to standard for new facilities, as calculated for each new facility. 6. Columns three through five are added as potential credits against the calculated capital facilities requirements. These are adjusted for percent of costs covered by the revenues from the project (actual, or as ratio to avg. for all residential development). $41,513 $8,956 $3,871 $0 $54,340 $625,689 $447,328 $1,181,397 $0 50 Rev -Cost Bal Ratio to Co Avg NOTE: Proffer calculations do not include include interest because they are cash payments up front. Credits do include interest if the projects are debt financed. Project Description: Assumes 120 single family detached dwelling units on 47.54 acres zoned RP District (PINS 64 -A -19, 64 -A -20, 64- A -23). Total Potential Adjustment For Tax Credits Revenue- Net Capital Net Cost Per (Unadjusted) Cost Balance Facilities Impact Dwelling Unit $0 $0 $77,305 $644 5492,860 $352,364 $908,528 $7,571 $41,513 529,679 $154,521 58,956 $6,403 $25,620 $19,400 $13,870 $5,083 $0 $0 $24,322 $62,961 $45,013 $0 0.533 0.715 51,288 $213 $42 $203 $0 $9,845 $1,181,397 1 $9,845 Greenway Engineering May 28, 2004; Revised July 28, 2004. October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 FREEDOM MANOR PROFFER STATEMENT REZONING: RZ# 09 -05 Rural Areas (RA) District to Residential Performance (RP) District PROPERTY: 26.87 -acres +1- (here -in after the "PROPERTY Tax Parcel 64-((AD-23 Freedom Manor Rezoning RECORD OWNER: Steve A. DuBrueler et als APPLICANT: Steve A. DuBrueler et als (here -in after the "APPLICANTS PROJECT NAME: FREEDOM MANOR ORIGINAL DATE May 28, 2004 OF PROFFERS: REVISION DATE: July 15, 2005 Preliminary Matters Pursuant to Section 15.2 -2296 Et. Seq. of the Code of Virginia, 1950, as amended, and the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the undersigned Applicants hereby proffer that in the event the Board of Supervisors of Frederick County, Virginia, shall approve Rezoning Application 09 -05 for the rezoning of 26.87± -acres from the Rural Areas (RA) District Residential Performance (RP) District, development of the subject property shall be done in conformity with the terms and conditions set forth herein, except to the extent that such terms and conditions may be subsequently amended or revised by the applicant and such be approved by the Frederick County Board of Supervisors in accordance with the said Code and Zoning Ordinance. In the event that such rezoning is not granted, then these proffers shall be deemed withdrawn and have no effect whatsoever. These proffers shall be binding upon these Applicants and their legal successors, heirs, or assigns. The subject property, identified as Freedom Manor, and more particularly described as the lands owned by Steve A. DuBrueler et als, being all of Tax Map Parcel 64- ((A)) -23. The property is shown by plat and survey dated January 9, 2002 and revised July 24, 2003, prepared by Mark D. Smith, L.S., of Greenway Engineering, entitled "Final Plat for Minor Rural Subdivision of the Land Standing in the Name of Doris F. Casey" and recorded as Instrument Number 030029417. File #3230/EAW 1 Greenway Engineering A. Generalized Development Plan May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 Freedom Manor Rezoning The Applicants hereby proffer to develop the Property in substantial conformity with the Generalized Development Plan prepared by Greenway Engineering and dated 4/20/05, a copy of which is attached. The Generalized Development Plan is intended to delineate the road systems that will serve the 70 single- family detached urban lots, the general location of road efficiency buffer, the Shenandoah Memorial Park buffer, and the bicycle and pedestrian trail facility. B. Residential Use Restriction 1. The Applicants hereby proffer that the Property shall be used for the development of Single Family Detached Urban Residences only, and all other housing types otherwise permitted in the RP zoning district shall be prohibited. developed as single family detached urban residential lots. 2. The Applicants hereby proffer to limit the total number of single family detached dwelling units to 70 on the Property. C. Transportation 1. Site Access The Applicants hereby proffer to provide access to the Property through the construction of a primary entrance on Papermill Road (Route 644) and a secondary entrance on Front Royal Pike (Route 522). The Applicants shall be responsible for the construction of the internal road improvements and for the construction of all off -site improvements located on Tax Map Parcel 64- ((A))- 23A. The internal road improvements and construction of all off -site improvements located on Tax Map Parcel 64- ((A)) -23A shall be constructed to base asphalt and open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision. Furthermore, the Applicants shall provide for a temporary cul -de -sac at the northern property boundary to allow for future inter parcel connection to Tax Map parcel 64 -A -19. The entrances, internal road system and temporary cul -de -sac described above are depicted on the proffered Generalized Development Plan exhibit for Freedom Manor. 2. Traffic Calming Measures and Route 522 Connection The Applicants hereby proffer to implement a curvilinear street design for the internal street system serving the 26.87 -acre site to discourage cut through traffic between Front Royal Pike (Route 522 South) and Papermill Road (Route 644). File #3230/EAW 2 Greenway Engineering• May 28, 2004; Revised July 28, 20040 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 Furthermore, the Applicants hereby proffer to design a traffic choker for review and approval by VDOT, and then construct the traffic choker between the Front Royal Pike entrance and the residential lots that will be located on Tax Map Parcel 64- ((A)) -23A. Additionally, a right turn and taper lane will be designed and constructed to this entrance within the Front Royal Pike right -of -way that will be open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision. 3. Elimination of Westwood Drive Connection Freedom Manor Rezoning The Applicants hereby proffer that they will not make a road connection to Westwood Drive (Route 822). This guarantee will be achieved through a deed restriction upon the pertinent property, identified as Tax Map 64- ((A)) -19 and currently owned by the Applicants, a copy of which is attached. The Applicants will legally record this road connection restriction within 30 days of final rezoning approval and prior to any development activity on the Property to ensure that this restriction appears in the chain of title for Tax Map parcel 64 -A -19. 4. Papermill Road Dedication The Applicants proffer a right -of -way dedication of twenty -feet in width along the entire Papermill Road frontage on the Property. 5. Offsite Road Contribution The Applicants hereby proffer to contribute seven thousand five hundred dollars ($7,500) per unit for offsite road improvements to Papermill Road, including the realignment of the Papermill Road and Front Royal Pike intersection and other associated Papermill Road improvements. The contribution will be paid to the Treasurer of Frederick County, Virginia for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. 6. Revenue Sharing All of the monies paid pursuant to above item 5, Papermill Road Improvements, together with the property value of land dedicated as public road right -of -way through above item 4, Papermill Road Dedication shall be eligible for inclusion in the Frederick County contribution to an applicable highway improvement revenue sharing project. File #3230 /EA W 3 Greenway Engineering• D. Shenandoah Memorial Park Buffer May 28, 2004; Revised July 28, 20040 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 The Applicants hereby proffer to provide a fifty -foot (50') buffer along the entire southern property line against the Shenandoah Memorial Park. The fifty -foot (50') buffer will not contain any portion of residential lots developed within the Property. A fence that is a minimum of six feet (6') in height, resembling a traditional iron fence style for cemetery enclosures will be constructed within the buffer along the shared Shenandoah Memorial Park property line. A bicycle and pedestrian trail facility will be constructed within a twenty -foot (20') non- exclusive easement, located adjacent to this fence. In the remaining thirty -foot (30') portion of the buffer, a single row of evergreen trees will be planted on ten foot (10') centers. E. Papermill Road (Route 644) Road Efficiency Buffer Easement Freedom Manor Rezoning Within the required road efficiency buffer the applicants hereby proffer to provide a twenty -foot (20') non exclusive easement for the development of a bicycle and pedestrian facility within the established fifty -foot (50') road efficiency buffer along Papermill Road (Route 644). F. Bicycle and Pedestrian Facility The Applicants hereby proffer to construct a ten -foot (10') wide asphalt bicycle and pedestrian facility within the twenty -foot (20') non exclusive easement as stated in Proffers D and E above. The maintenance of this facility shall initially' be the responsibility of the homeowners' association, and will be available for dedication to the Frederick County Department of Parks and Recreation if requested in writing by Frederick County. G. Monetary Contribution to Offset Impact of Development The undersigned owners of the above described property hereby voluntarily proffer that in the event rezoning application 09 -05 is approved, the undersigned will pay to the Treasurer of Frederick County, Virginia $9,845 for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. File #3230/EAW 4 Greenway Engineering H.) Signatures Respectfully Submitted: Bv: File 43230 /EAW May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 Steve A. DuBrueler The conditions proffered above shall be binding upon the heirs, executors, administrators, assigns and successors in the interest of the applicant and owner. In the event the Frederick County Board of Supervisors grants this rezoning and accepts the conditions, the proffered conditions shall apply to the land rezoned in addition to other requirements set forth in the Frederick County Code. Freedom Manor Rezoning Date By: �i 0 1 7— 2 s—a C Ray N. DuBrueler Date By: Madeline F. DuBrueler Commonwealth of Virginia, City/ ounty f Frede4 la-- To Wit: The foregoing instrument was acknowledged before me this 'Z>khday of %Iu( y 20 05 by Sieve A 17 vfrce er. go N DU Beve ler II al My. Commission Expires Fe ire( ire. Zv i J 1V S Date Notary Public ad-dine r °erveler 5 Greenway Engineering REZONING: PROPERTY: RECORD OWNER: APPLICANT: PROJECT NAME: FREEDOM MANOR PROFFER STATEMENT ORIGINAL DATE May 28, 2004 OF PROFFERS: Preliminary Matters May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 RZ# 09 -05 Rural Areas (RA) District to Residential Performance (RP) District 26.87 -acres (here -in after the "PROPERTY Tax Parcel 64- ((A)) -23 REVISION DATE: June 16, 2005 July 15, 2005 Freedom Manor Rezoning Steve A. DuBrueler et als Steve A. DuBrueler et als (here -in after the "APPLICANTS') FREEDOM MANOR Pursuant to Section 15.2 -2296 Et. Seq. of the Code of Virginia, 1950, as amended, and the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the undersigned Applicants hereby proffer that in the event the Board of Supervisors of Frederick County, Virginia, shall approve Rezoning Application 09 -05 for the rezoning of 26.87+ -acres from the Rural Areas (RA) District Residential Performance (RP) District, development of the subject property shall be done in conformity with the terms and conditions set forth herein, except to the extent that such terms and conditions may be subsequently amended or revised by the applicant and such be approved by the Frederick County Board of Supervisors in accordance with the said Code and Zoning Ordinance. In the event that such rezoning is not granted, then these proffers shall be deemed withdrawn and have no effect whatsoever. These proffers shall be binding upon these Applicants and their legal successors, heirs, or assigns. The subject property, identified as Freedom Manor, and more particularly described as the lands owned by Steve A. DuBrueler et als, being all of Tax Map Parcel 64- ((A)) -23. The property is shown by plat and survey dated January 9, 2002 and revised July 24, 2003, prepared by Mark D. Smith, L.S., of Greenway Engineering, entitled "Final Plat for Minor Rural Subdivision of the Land Standing in the Name of Doris F. Casey" and recorded as Instrument Number 030029417. File #3230 /EAW I Greenway Engineering A. Generalized Development Plan B. Residential Use Restriction May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 Freedom Manor Rezoning The Applicants hereby proffer to develop the Property in substantial conformity with the Generalized Development Plan prepared by Greenway Engineering and dated 4/20/05, a copy of which is attached The Generalized Development Plan is intended to delineate the road systems that will serve the 70 single family detached urban lots, the general location of road efficiency buffer, the Shenandoah Memorial Park buffer, and the bicycle and pedestrian trail facility. 1. The Applicants hereby proffer that the Property shall be used for the development of Single- Family Detached Urban Residences only, and all other housing types otherwise permitted in the RP zoning district shall be prohibited developed as single-family detached urban residential lots. 2. The Applicants hereby proffer to limit the total number of single family detached dwelling units to 70 on the Property. C. Transportation 1. Site Access The Applicants hereby proffer to provide access to the Property through the construction of a primary entrance on Papermill Road (Route 644) and a secondary entrance on Front Royal Pike (Route 522). The Applicants shall be responsible for the construction of the internal road improvements and for the construction of all off -site improvements located on Tax Map Parcel 64- ((A))- 23A. The internal road improvements and construction of all off -site improvements located on Tax Map Parcel 64- ((A)) -23A shall be constructed to base asphalt and open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision. Furthermore, the Applicants shall provide for a temporary cul -de -sac at the northern property boundary to allow for future inter- parcel connection to Tax Map parcel 64 -A -19. The entrances, internal road system and temporary cul -de -sac described above are depicted on the proffered Generalized Development Plan exhibit for Freedom Manor. 2. Traffic Calming Measures and Route 522 Connection The Applicants hereby proffer to implement a curvilinear street design for the internal street system serving the 26.87 -acre site to discourage cut through traffic between Front Royal Pike (Route 522 South) and Papermill Road (Route 644). File #3230 /EAW 2 Greenway Engineering Furthermore, the Applicants hereby proffer to design a traffic chocker for review and approval by VDOT, and then construct the traffic choker between the Front Royal Pike entrance and the residential lots that will be located on Tax Map Parcel 64- ((A)) -23A. Additionally, a right turn and taper lane will be designed and constructed to this entrance within the Front Royal Pike right -of- way that will be open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision. 3. Elimination of Westwood Drive Connection The Applicants hereby proffer that they will not make a road connection to Westwood Drive (Route 822). This guarantee will be achieved through a deed restriction upon the pertinent property, identified as Tax Map 64- ((A)) -I9 and currently owned by the Applicants, a copy of which is attached. The Applicants will legally record this road connection restriction within 30 days of final rezoning approval and prior to any development activity on the Property to ensure that this restriction appears in the chain of title for Tax Map parcel 64 -A- 19. 4. Papermill Road Dedication The Applicants proffer a right -of -way dedication of twenty -feet in width along the entire Papermill Road frontage on the Property. 5. Offsite Road Contribution May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 Freedom Manor Rezoning The Applicants hereby proffer to contribute seven thousand five hundred dollars ($7,500) per unit for offsite road improvements to Papermill Road, including the realignment of the Papermill Road and Front Royal Pike intersection and other associated Papermill Road improvements. The contribution will be paid to the Treasurer of Frederick County, Virginia for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. 6. Revenue Sharing All of the monies paid pursuant to above item 5, Papermill Road Improvements, together with the property value of land dedicated as public road right -of -way through above item 4, Papermill Road Dedication shall be eligible for inclusion in the Frederick County contribution to an applicable highway improvement revenue sharing project. File #3230 /EAW 3 Greenway Engineering May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 D. Shenandoah Memorial Park Buffer F. Bicycle and Pedestrian Facility The Applicants hereby proffer to provide a fifty -foot (50') buffer along the entire southern property line against the Shenandoah Memorial Park. The fifty-foot (50') buffer will not contain any portion of residential lots developed within the Property. A fence that is a minimum of six feet (6') in height, resembling a traditional iron fence style for cemetery enclosures will be constructed within the buffer along the shared Shenandoah Memorial Park property line. A bicycle and pedestrian trail facility will be constructed within a twenty -foot (20') non- exclusive easement, located adjacent to this fence. In the remaining thirty-foot (30') portion of the buffer, a single row of evergreen trees will be planted on ten foot (10') centers. E. Papermill Road (Route 644) Road Efficiency Buffer Easement Within the required road efficiency buffer the applicants hereby proffer to provide a twenty -foot (20') non exclusive easement for the development of a bicycle and pedestrian facility within the established fifty-foot (50') road efficiency buffer along Papermill Road (Route 644). The Applicants hereby proffer to construct a ten -foot (10') wide asphalt bicycle and pedestrian facility within the twenty -foot (20') non exclusive easement as stated in Proffers D and E above. The maintenance of this facility shall initially be the responsibility of the homeowners' association, and will be available for dedication to the Frederick County Department of Parks and Recreation if requested in writing by Frederick County. G. Monetary Contribution to Offset Impact of Development Freedom Manor Rezoning The undersigned owners of the above described property hereby voluntarily proffer that in the event rezoning application 09 -05 is approved, the undersigned will pay to the Treasurer of Frederick County, Virginia $9,845 for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. File #3230/EA W 4 Greenway Engineering H.) Signatures By: By: By: May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 July 15, 2005 The conditions proffered above shall be binding upon the heirs, executors, administrators, assigns and successors in the interest of the applicant and owner. In the event the Frederick County Board of Supervisors grants this rezoning and accepts the conditions, the proffered conditions shall apply to the land rezoned in addition to other requirements set forth in the Frederick County Code. Respectfully Submitted: Steve A. DuBrueler Date Ray N. DuBrueler Date Madeline F. DuBrueler Date Commonwealth of Virginia, City /County of To Wit: The foregoing instrument was acknowledged before me this day of 20 by My Commission Expires Freedom Manor Rezoning Notary Public File #3230/EAW 5 Greenway Engineering May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 FREEDOM MANOR PROFFER STATEMENT REZONING: RZ# Rural Areas (RA) District to Residential Performance (RP) District PROPERTY: 26.87 -acres Tax Parcel 64- ((A)) -23 RECORD OWNER: Steve A. DuBrueler et als APPLICANT: Steve A. DuBrueler et als (here -in after "the applicant") PROJECT NAME: FREEDOM MANOR ORIGINAL DATE May 28, 2004 OF PROFFERS: REVISION DATE: June 16, 2005 Preliminary Matters File #3230 /EAW Freedom Manor Rezoning Pursuant to Section 15.2 -2296 Et. Seq. of the Code of Virginia, 1950, as amended, and the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the undersigned applicants hereby proffer that in the event the Board of Supervisors of Frederick County, Virginia, shall approve Rezoning Application G 6 1 0 5 for the rezoning of 26.87 -acres from the Rural Areas (RA) District Residential Performance (RP) District, development of the subject property shall be done in conformity with the terms and conditions set forth herein, except to the extent that such terms and conditions may be subsequently amended or revised by the applicant and such be approved by the Frederick County Board of Supervisors in accordance with the said Code and Zoning Ordinance. In the event that such rezoning is not granted, then these proffers shall be deemed withdrawn and have no effect whatsoever. These proffers shall be binding upon these applicants and their legal successors, heirs, or assigns. The subject property, identified as Freedom Manor, and more particularly described as the lands owned by Steve A. DuBrueler et als, being all of Tax Map Parcel 64- ((A)) -23. The property is shown by plat and survey dated January 9, 2002 and revised July 24, 2003, prepared by Mark D. Smith, L.S., of Greenway Engineering, entitled "Final Plat for Minor Rural Subdivision of the Land Standing in the Name of Doris F. Casey" and recorded as instrument number 030029417. 1 Greenway Engineering A. Generalized Development Plan B. Residential Use Restriction C. Transportation 1. Site Access May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 2. Traffic Calming Measures and Route 522 Connection Freedom Manor Rezoning The applicants hereby proffer to develop the 26.87 -acre property in substantial conformance with a Generalized Development Plan approved as part of the rezoning application. The Generalized Development Plan is intended to delineate the road systems that will serve the 70 single family detached urban lots, the general location of road efficiency buffer, the Shenandoah Memorial Park buffer, and the bicycle and pedestrian trail facility. 1. The applicants hereby proffer that the 26.87 -acre property shall be developed as single family detached urban residential lots. All other housing types allowed in Section 165 -65 are hereby prohibited. 2. The applicants hereby proffer to limit the total number of single family detached urban lots to 70. The applicants hereby proffer to provide access to the 26.87 -acre site through the construction of a primary entrance on Papermill Road (Route 644) and a secondary entrance on Front Royal Pike (Route 522). The applicants shall be responsible for the construction of the internal road improvements and for the construction of all off -site improvements located on Tax Map Parcel 64- ((A))- 23A. The internal road improvements and construction of all off -site improvements located on Tax Map Parcel 64- ((A)) -23A shall be constructed to base asphalt and open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision. Furthermore, the applicants shall provide for a temporary cul -de -sac at the northern property boundary to allow for future inter parcel connection to Tax Map parcel 64 -A -19. The entrances, internal road system and temporary cul -de -sac described above are depicted on the proffered Generalized Development Plan exhibit for Freedom Manor. The applicants hereby proffer to implement a curvilinear street design for the internal street system serving the 26.87 -acre site to discourage cut through traffic between Front Royal Pike (Route 522 South) and Papermill Road (Route 644). Furthermore, the applicants hereby proffer to design and construct a traffic choker File #3230/EAW 2 Greenway Engineering 4. Papermill Road Dedication 5. Offsite Road Contribution May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 3. Elimination of Westwood Drive Connection Freedom Manor Rezoning between the Front Royal Pike entrance and the residential lots that will be located on Tax Map Parcel 64- ((A)) -23A, as well as construct a right turn and taper lane to this entrance within the Front Royal Pike right -of -way that will be open for public use prior to the issuance of the first building permit within the Freedom Manor Subdivision.. The applicants hereby proffer that they will not make a road connection to Westwood Drive (Route 822). This guarantee will be achieved through a deed restriction upon the pertinent property, identified as Tax Map 64- ((A)) -19 and currently owned by the applicants, upon final approval of this rezoning. The applicant will legally record this road connection restriction within 30 days of final rezoning approval to ensure that this restriction appears in the chain of title for Tax Map parcel 64 -A -I9. The applicants proffer a right -of -way dedication of twenty -feet in width along the entire Papermill Road frontage on the subject property. The applicants hereby proffer to contribute seven thousand five hundred dollars ($7,500) per unit for offsite road improvements to Papermill Road, including the realignment of the Papermill Road and Front Royal Pike intersection and other associated Papermill Road improvements. The contribution will be paid to the Treasurer of Frederick County, Virginia for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. 6. Revenue Sharing All of the monies paid pursuant to above item 5, Papermill Road Improvements, together with the property value of land dedicated as public road right -of -way through above item 4, Papermill Road Dedication shall be eligible for inclusion in the Frederick County contribution to an applicable highway improvement revenue sharing project. D. Shenandoah Memorial Park Buffer The applicants hereby proffer to provide a fifty -foot (50') buffer along the entire southern property line against the Shenandoah Memorial Park. The fifty -foot (50') buffer will not contain any portion of residential lots developed within the File #3230/EAW 3 Greenway Engineering F. Bicycle and Pedestrian Facility May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 26.87 -acre property. A fence that is a minimum of six feet (6') in height, resembling a traditional iron fence style for cemetery enclosures will be constructed within the buffer along the shared Shenandoah Memorial Park property line. A bicycle and pedestrian trail facility will be constructed within a twenty -foot (20') non- exclusive easement, located adjacent to this fence. In the remaining thirty -foot (30') portion of the buffer, a single row of evergreen trees will be planted on ten -foot (10') centers. E. Papermill Road (Route 644) Road Efficiency Buffer Easement Within the required road efficiency buffer the applicants hereby proffer to provide a twenty -foot (20') non exclusive easement for the development of a bicycle and pedestrian facility within the established fifty -foot (50') road efficiency buffer along Papermill Road (Route 644). The applicants hereby proffer to construct a ten -foot (10') wide asphalt bicycle and pedestrian facility within the twenty -foot (20') non exclusive easement as stated in Proffers D and E above. The maintenance of this facility shall initially be the responsibility of the homeowners' association, and will be available for dedication to the Frederick County Department of Parks and Recreation if requested in writing by Frederick County. G. Monetary Contribution to Offset Impact of Development Freedom Manor Rezoning The undersigned owners of the above described property hereby voluntarily proffer that in the event rezoning application C q S is approved, the undersigned will pay to the Treasurer of Frederick County, Virginia $9,845 for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. File 113230 /HAW 4 Grcenway Engineering H.) Signatures Respectfully Submitted: May 28, 2004; Revised July 28, 2004 October 7, 2004; February 25, 2005 May 18, 2005; June 16, 2005 The conditions proffered above shall be binding upon the heirs, executors, administrators, assigns and successors in the interest of the applicant and owner. In the event the Frederick County Board of Supervisors grants this rezoning and accepts the conditions, the proffered conditions shall apply to the land rezoned in addition to other requirements set forth in the Frederick County Code. By: Steve A. DuBrueler By: A ag )9 X126. Ray N. DuBrueler My Commission Expires 2/24/Qt By: G sti c,, ..l 1.1>AaAl C 12Z I C7 r Madeline F. DuBrueler Date Commonwealth of Virginia. City /County of F eh7 -i To Wit: The foregoing instrument was acknowledged before me this 2. day of JU.A/r 20 US by Ski/Cr A rb nttA, 2-4 N IttMtte le Made is .c r bti qi,c(-P-41 Freedom Manor Rezoning Date (9 2 fir Date Notary Public Pile #3230/EA W 5 Greenway Engineering REZONING: PROPERTY: RECORD OWNER: APPLICANT: PROJECT NAME: ORIGINAL DATE OF PROFFERS: REVISION DATE: May 19, 2005 Preliminary Matters May 28, 2004 Revised July 28, 2004 October 7, 2004 February 25, 2005 May 18, 2005 RZ# Rural Areas (RA) District to Residential Performance (RP) District 26.87 -acres Tax Parcel 64- ((A)) -23 Steve A. DuBrueler et als Steve A. DuBrueler et als (here -in after "the applicant FREEDOM MANOR May 28, 2004 Freedom Manor Rezoning Pursuant to Section 15.2 -2296 Et. Seq. of the Code of Virginia,. 1950, as amended, and the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the undersigned applicants hereby proffer that in the event the Board of Supervisors of F 5 rederick County, Virginia, shall approve Rezoning Application C9 a for the rezoning of 26.87 -acres from the Rural Areas (RA) District Residential Performance (RP) District, development of the subject property shall be done in conformity with the terms and conditions set forth herein, except to the extent that such terms and conditions may be subsequently amended or revised by the applicant and such be approved by the Frederick County Board of Supervisors in accordance with the said Code and Zoning Ordinance. In the event that such rezoning is not granted, then these proffers shall be deemed withdrawn and have no effect whatsoever. These proffers shall be binding upon these applicants and their legal successors, heirs, or assigns. The subject property, identified as Freedom Manor, and more particularly described as the lands owned by Steve A. DuBrueler et als, being all of Tax Map Parcel 64- ((A)) -23. The property is shown by plat and survey dated January 9, 2002 and revised July 24, 2003, prepared by Mark D. Smith, L.S., of Greenway Engineering, entitled "Final Plat for Minor Rural Subdivision of the Land Standing in the Name of Doris F. Casey" and recorded as instrument number 030029417. Pile 713230 /EAW /aje 1 Greenway Engineering A. Generalized Development Plan Residential Use Restriction C. Transportation 1. Site Access May 28, 2004 Revised July 28, 2004 October 7, 2004 February 25, 2005 May 18, 2005 Freedom Manor Rezoning The applicants hereby proffer to develop the 26.87 -acre property in substantial conformance with a Generalized Development Plan approved as part of the rezoning application. The Generalized Development Plan is intended to delineate the road systems that will serve the 70 single family detached urban lots, the general location of road efficiency buffer, the Shenandoah Memorial Park buffer, and the bicycle and pedestrian trail facility. 1. The applicants hereby proffer that the 26.87 -acre property shall be developed as single family detached urban residential lots. All other housing types allowed in Section 165 -65 are hereby prohibited. 2. The applicants hereby proffer to limit the total number of single- family detached urban lots to 70. The applicants hereby proffer to provide access to the 26.87 -acre site through the construction of a primary entrance on Papermill Road (Route 644) and a secondary entrance on Front Royal Pike (Route 522). A temporary cul -de -sac shall be provided at the northern property boundary to allow for future inter parcel connection to Tax Map parcel 64 -A -19. The entrances and temporary cul- de -sac described above are depicted on the proffered Generalized Development Plan exhibit for Freedom Manor. 2. Traffic Calming Measures and Route 522 Connection The applicants hereby proffer to implement a curvilinear street design for the internal street system serving the 26.87 -acre site to discourage cut through traffic between Front Royal Pike (Route 522 South) and Papermill Road (Route 644). Furthermore, the applicants hereby proffer to design a traffic choker to be constructed between the Front Royal Pike entrance and the residential lots, as well as construct a right turn and taper lane within the Front Royal Pike right -of -way to serve this entrance. File #3230 /E A W /ajc 2 Greenway Engineering 3. Elimination of Westwood Drive Connection 4. Papermill Road Dedication 5. Offsite Road Contribution 6. Revenue Sharing D. Shenandoah Memorial Park Buffer May 28, 2004 Revised July 28, 2004 October 7, 2004 February 25, 2005 May 18, 2005 Freedom Manor Rezoning The applicants hereby proffer that they will not make a road connection to Westwood Drive (Route 822). This guarantee will be achieved through a deed restriction upon the pertinent property, identified as Tax Map 64- ((A)) -19 and currently owned by the applicants, upon final approval of this rezoning. The applicant will legally record this road connection restriction within 30 days of final rezoning approval to ensure that this restriction appears in the chain of title for Tax Map parcel 64 -A -19. The applicants proffer a right- of-way dedication of twenty -feet in width along the entire Papermill Road frontage on the subject property. The applicants hereby proffer to contribute seven thousand five hundred dollars ($7,500) per unit for offsite road improvements to Papermill Road, including the realignment of the Papermill Road and Front Royal Pike intersection and other associated Papermill Road improvements. The contribution will be paid to the Treasurer of Frederick County, Virginia for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. All of the monies paid pursuant to above item 5, Papermill Road Improvements, together with the property value of land dedicated as public road right -of -way through above item 4, Papermill Road Dedication shall be eligible for inclusion in the Frederick County contribution to an applicable highway improvement revenue sharing project. The applicants hereby proffer to provide a fifty -foot (50') buffer along the entire southern property line against the Shenandoah Memorial Park. The fifty -foot (50') buffer will not contain any portion of residential lots developed within the 26.87 -acre property. A fence that is a minimum of six feet (6') in height, resembling a traditional iron fence style for cemetery enclosures will be constructed within the buffer along the shared Shenandoah Memorial Park property line. A bicycle and pedestrian trail facility will be constructed within a twenty-foot (20') non exclusive easement, located adjacent to this fence. In the File #3230 /EA W /aje 3 Greenway Engineering May 28, 2004 Revised July 28, 2004 October 7, 2004 February 25, 2005 May 18, 2005 remaining thirty -foot (30') portion of the buffer, a single row of evergreen trees will be planted on ten -foot (10') centers. E. Papermill Road (Route 644) Road Efficiency Buffer Easement Within the required road efficiency buffer the applicants hereby proffer to provide a twenty -foot (20') non exclusive easement for the development of a bicycle and pedestrian facility within the established fifty -foot (50') road efficiency buffer along Papermill Road (Route 644). F. Bicycle and Pedestrian Facility The applicants hereby proffer to construct a ten -foot (10') wide asphalt bicycle and pedestrian facility within the twenty -foot (20') non exclusive easement as stated in Proffers D and E above. The maintenance of this facility shall initially be the responsibility of the homeowners' association, and will be available for dedication to the Frederick County Department of Parks and Recreation if requested in writing by Frederick County. G. Monetary Contribution to Offset Impact of Development Freedom Manor Rezoning The undersigned owners of the above described property hereby voluntarily proffer that in the event rezoning application O°} 0 5 is approved, the undersigned will pay to the Treasurer of Frederick County, Virginia $9,845 for each residential lot that is platted. This monetary contribution is to be paid at the time of the building permit issuance for each residential lot. File #3230/EAW/aje 4 Greenway Engineering FL) Signatures Respectfully Submitted: By: By: File #3230 /EAW /ajc The conditions proffered above shall be binding upon the heirs, executors, administrators, assigns and successors in the interest of the applicant and owner. In the event the Frederick County Board of Supervisors grants this rezoning and accepts the conditions, the proffered conditions shall apply to the land rezoned in addition to other requirements set forth in the Frederick County Code. By: Steve A. DuBrueler Commonwealth of Virginia, City /County of My Commission Expires 3 Cot Madeline F. DuBrueler May 28, 2004 Freedom Manor Rezoning Revised July 28, 2004 October 7, 2004 February 25, 2005 May 18, 2005 1 1 12.ae e)2, v To Wit: The foregoing instrument was acknowledged before me this 2,0 day of 5'16 K5 Date D_ /n S-- Date 5_2L 0 S Date 20 5 by Notary Public 5 Tax Map ID: Prepared by and Return to: 64- ((A)) -19 Sean A. Everhart, PLC 158 Front Royal Pike, Suite 305C Winchester, Virginia 22602 DECLARATION OF RESTRICTIVE COVENANT THIS DECLARATION OF RESTRICTIVE COVENANT, is made this day of 2005, by and among Steve A. DUBRUELER Ray N. DUBRUELER, and Madeline F. DUBRUELER (hereinafter referred to as "Declarants owners of the real property described in Exhibit A and Exhibit B, FIRST BANK, a Virginia Banking Corporation (hereinafter referred to as "Noteholder and Stephen G. BUTLER, TRUSTEE (hereinafter referred to as "Trustee WITNESSETH: WHEREAS, Declarants are the fee simple owners of certain real property in Frederick County, Virginia, containing 22021 acres, more particularly described in Exhibit A (hereinafter referred to as the "Property and 26.8733 acres, more particularly described in Exhibit B; WHEREAS, Declarants desire and intend to restrict their access rights to the Property upon certain conditions; and WHEREAS, Noteholder is the beneficiary of two Notes, each secured partially by the Property, and evidenced by two Deeds of Trust recorded as Instrument Numbers 020018297 (modified in Instrument 040024652) and 050005350 among the land records of Frederick County. Virginia; WHEREAS, Noteholder joins in the execution of this Declaration of Restrictive Covenant to evidence its consent and approval of said restriction being placed on the Property in which it has a collateral interest; WHEREAS, Trustee is one of the named Trustees on said Deeds of Trust who may act individually in said capacity, and who also joins in the execution of this Declaration of Restrictive Covenant to evidence his consent as Trustee under the aforementioned Deeds of Trust. DECLARATION OF RESTRICIVE COVENANT NOW, THEREFORE, that for and in consideration of the premises and the sum of One Dollar ($1.00), cash in hand paid, the receipt and sufficiency of which is hereby acknowledged, Declarants hereby make the following limitation and restriction on the Property and certify that said limitation and restriction shall constitute a covenant to run with the land and shall be binding on all parties claiming under them, and for the benefit of and limitation upon all future owners of said Property: Page 1 of 6 1. Declarants shall retain all legal and vehicular access rights via Route 822 (Westwood Drive) with respect to the Property unless and until a Frederick County approved roadway, with legal and vehicular ingress and egress, is granted and constructed between the Property (Tax Map Parcel 64- ((A)) -19) and the real property described in Exhibit B (Tax Map Parcel 64- ((A)) -23); upon approved and completed construction of said roadway, Declarants shall not exercise any rights to vehicular access to and from the Property via Route 822 (Westwood Drive). 2. This limitation and restriction shall run exclusively to the benefit of, and shall be enforceable exclusively by, Frederick County. 3. This limitation and restriction shall run with, and be appurtenant to, the land described in Exhibit A, and shall be binding on the Declarants, their heirs, personal representatives, successors, and assigns. WITNESS THE FOLLOWING SIGNATURE(S) AND SEAL(S): (SEAL) Steve A. DuBrueler (SEAL) Ray N. DuBrueler (SEAL) Madeline F. DuBrueler COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler, this day of 2005. My Commission Expires: Notary Public Page 2 of 6 FIRST BANK, a Virginia Banking Corporation By: (SEAL) Earl W. Foreman, Vice President COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Earl W. Foreman, Vice President of First Bank, a Virginia Banking Corporation, this day of 2005. My Commission Expires: Notary Public Page 3 of 6 COMMONWEALTH OF VIRGINIA (SEAL) Stephen G. Butler, Trustee CITY OF WINCHESTER, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Stephen G. Butler, Trustee, this day of 2005. My Commission Expires: Notary Public Page 4 of 6 2.2021 acres as shown on that certain plat entitled "Zoning Exhibit Showing Existing Zoning District Boundary on the Land of Steve A. DuBrueler, Ray N. DuBrueler Madeline F. DuBrueler" by Richard E. Edens, L.S., dated January 13, 2003, and recorded as Instrument Number 030003286 among the land records of Frederick County, Virginia. AND BEING a portion of the property conveyed to Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler from Jean Swisher by Deed dated October 24, 2002 and recorded October 25, 2002 as Instrument Number 020018296 among the land records of Frederick County, Virginia. Tax Map Parcel: 64- ((A)) -19 Exhibit A Page 5 of 6 Tax Map Parcel: 64- ((A)) -23 Exhibit B All of that certain tract or parcel of land, containing 26.8733 acres, situate in Shawnee Magisterial District, Frederick County, Virginia, as shown on the Final Plat for Minor Rural Subdivision of the Land Standing in the Name of Doris F. Casey, prepared by Mark D. Smith, L.S., dated July 24, 2003, and attached to the Deed of Gift from Doris F. Casey to Robin Casey Wilisch dated and recorded December 30, 2003 as Instrument Number 030029416 among the land records of Frederick County, Virginia. AND BEING the same property conveyed to Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler from Doris F. Casey by Deed dated December 30, 2003 and recorded December 30, 2003 as Instrument Number 030029417 among the land records of Frederick County, Virginia. Page 6 of 6 JU426 -05 12:56 FROM- Tax Map ID: Prepared by and Return to 64- ((A)) -19 Sean A. Everhart, PLC 158 Front Royal Pike, Suite 305C Winchester, Virginia 22502 DECLARATION OF RESTRICTIVE COVENA -NT WITNESS£ H: DECLARATION OF RESTRICIVE COVENANT T 017 P.02/07 F 015 THIS DECLARATION OF RESTRICTIVE COVENANT, is made this day of 2005, by and among Steve A. DUBRUELER, Ray N. DUBRUELER, and Madeline F. DUBRUELER (hereinafter referred to as "Declarants owners of the real property described in Exhibit A and Exhibit B, FIRST BANK, a Virginia Banking Corporation (hereinafter referred to as "Noteholder and Stephen G. BUTLER, TRUSTEE (hereinafter referred to as "Trustee WHEREAS, Declarants are the fee simple owners of certain real property in Frederick County, Virginia, containing 2.2021 acres, more particularly described in Exhibit A (hereinafter referred to as the "Property and 26 8733 acres, more particularly described in Exhibit B; WHEREAS, Declarants desire and intend to restrict their access rights to the Property upon certain conditions; and WHEREAS, Noteholder is the beneficiary of two Notes, each secured partially by the Property, and evidenced by two Deeds of Trust recorded as Instrument Numbers 020018297 (modified in Instrument 040024652) and 050005350 among the land records of Frederick County, Virginia; WHEREAS, Noteholder joins in the execution of this Declaration of Restrictive Covenant to evidence its consent and approval of said restriction being placed on the Property in which it has a collateral interest; WHEREAS, Trustee is one of the named Trustees on said Deeds of Trust who may act individually in said capacity, and who also joins in the execution of this Declaration of Restrictive Covenant to evidence his consent as Trustee under the aforementioned Deeds of' Trust. NOW, THEREFORE, that for and in consideration of the premises and the sum of One Dollar ($1.00), cash in hand paid, the receipt and sufficiency of which is hereby acknowledged, Declarants hereby make the following limitation and restriction on the Property and certify that said limitation and restriction shall constitute a covenant to run with the land and shall be binding on all parties claiming under them, and for the benefit of and limitation upon all future owners of said Property: Page 1 of 6 JUL -26 -05 12:56 FROM- 7 -017 P.03/07 F 015 1. Declarants shall retain all legal and vehicular access rights via Route 822 (Westwood Drive) with respect to the Property unless and until a Frederick County approved roadway, with legal and vehicular ingress and egress, is granted and constructed between the Property (Tax Map Parcel 64-((AD-19) and the real property described in Exhibit B (Tax Map Parcel 64-((AD-23); upon approved and completed construction of said roadway, Declarants shall not exercise any rights to vehicular access to and from the Property via Route 822 (Westwood Drive). 2. This limitation and restriction shall run exclusively to the benefit of, and shall be enforceable exclusively by, Frederick County. 3. This limitation and restriction shall run with, and be appurtenant to, the land described in Exhibit A, and shall be binding on the Declarants, their heirs, personal representatives, successors, and assigns. WITNESS THE FOLLOWINCi SIGNATURE(S) AND SEAL(S): (SEAL) Steve A. DuBrueler Ray N. DuBrueler (SEAL) (SEAL) Madeline F. DuBrueler COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler, this day of 2005. My Commission Expires: Notary Public Page 2 of 6 JUL:26 -05 12:57 FROM- My Commission Expires: Notary Public T 017 P.04/07 F 015 FIRST BANK, ai Virginia Banking Corporation By: (SEAL) Earl W. Foreman, Vice President COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Earl W. Foreman, Vice President of First Bank, a Virginia Banking Corporation, this day of 2005. Page 3 of 6 JU1-26 -05 12:57 FROM- My Commission Expires: Stephen G. Butler, Trustee Notary Public T -017 P.05/07 F-015 (SEAL) COMMONWEALTH OF VIRGINIA CITY OF WINCHESTER, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Stephen G. Butler, Trustee, this day of 2005. Page 4 of 6 JUL-26 -05 12:57 FROM- 2.2021 acres as shown on that certain plat entitled "Zoning Exhibit Showing Existing Zoning District Boundary on the Land of Steve A. DuBrueler, Ray N. DuBrueler Madeline F. DuBrueler" by Richard E. Edens, L.S., dated January 13, 2003, and recorded as Instrument Number 030003286 among the land records of Frederick County, Virginia. AND BEING a portion of the property conveyed to Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler from Jean Swisher by Deed dated October 24, 2002 and recorded October 25, 2002 as Instrument Number 020018296 among the land records of Frederick County, Virginia. Tax Map Parcel: 64- ((A)) -19 Exhibit A 7 -017 P.05 /07 F -015 Page 5 of 6 JUL ;26 -05 12:57' FROM- All of that certain tract or parcel of land, containing 26:8733 acres, situate in Shawnee Magisterial District, Frederick County, Virginia, as shown on the Final Plat for Minor Rural Subdivision of the Land Standing in the Name of Doris, F. Casey, prepared by Mark D. Smith, L.S., dated July 24, 2003, and attached to the Deed of Gift from Doris F. Casey to Robin Casey Wilisch dated and recorded December 30, 2003 as Instrument Number 030029416 among the land records of Frederick County, Virginia. AND BEING the same property conveyed to Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler from Doris F. Casey by Deed dated December 30, 2003 and recorded December 30, 2003 as Instrument Number 030029417 among the land records of Frederick County, Virginia. Tax Map Parcel: 64- ((A)) -23 Exhibit B T -017 P.07/07 F -015 Page 6 of 6 DECLARATION OF RESTRICTIVE COVENANTS WITNESSETH: DRAFT THIS DECLARATION OF RESTRICTIVE COVENANTS, dated this day of of 2005, by and among Steven A DUBRUELER, Ray N. DUBRUELER, and Madeline F. DUBRUELER, parties of the first part, hereinafter referred to as "Declarants the COUNTY OF FREDERICK, Virginia, party of the second part, hereinafter referred to as "County FIRST BANK, a Virginia banking corporation, party of the third part, hereinafter referred to as "Bank and Steven G. BUTLER, Trustee, party of the fourth part, hereinafter referred to as "Trustee WHEREAS, Declarants are the fee simple owners of certain real property lying and being situated two miles south of the City of Winchester, in Shawnee Magisterial District, Frederick County, Virginia, containing 2.2021 acres, more or less, and being further identified as Tax Parcel No. 64 -A -19 (hereinafter referred to as "the Property and WHEREAS, Declarants desire to impose a restrictive covenant on the Property regarding access to Route 822 (Westwood Drive); and WHEREAS, the note holder is the beneficiary of two notes, each secured partially by the Property, and evidenced by two deeds of trust recorded as Instrument Nos. 020018297 (modified in Instrument No. 040024652) and 050005350 among the land records of Frederick County, Virginia, the Trustee being the trustee under the aforesaid deeds of trust. NOW, THEREFORE, Declarants hereby impose the following restrictive covenants on the Property: 1. There shall be no entrance from or access to the Property from Route 822 (Westwood Drive); provided, however, the Property may be accessed from Route 822 until such time as a public road is constructed which provides other access to the Property. 2. In no event shall Declarants, as the owners of the Property, grant access across the Property to Route 822 for the benefit of any other property, and no other property shall have access across the Property to Route 822. These Restrictive Covenants shall run to the benefit of, and be enforceable by, the County. These Restrictive Covenants shall run with, and be appurtenant to, the Property, and shall be binding upon the Declarants, their heirs, personal representatives, successors, and assigns. (n- 5 J L c The Bank and the Trustee join in the execution of this Declaration of Restrictive Covenants to evidence their consent and approval of the placement of the restrictive covenants on the Property. WITNESS THE FOLLOWING SIGNATURES AND SEALS: (SEAL) Steve A. DuBrueler (SEAL) Ray N. DuBrueler (SEAL) Madeline F. DuBrueler COUNTY OF CcXRK VIRGINIA `jt DE( By: (SEAL) FIRST BANK By: (SEAL) Earl W. Foreman, Vice President (SEAL) Steven G. Butler, Trustee (Notary acknowledgments to be added for all above parties) 09/02/2005 12:19 5404502293 DECLARATION OF RESTRICTIVE COVENANT SEAN A EVERHART PLC PAGE 02/03 THIS DECLARATION OF RESTRICTIVE COVENANT, dated this day of 2005. by and among Steven A. DUBRUELER, Ray N. DUBRUELER. and Madeline F. DUBRUELER, parties of the first part, hereinafter referred to as "Declarants the COUNTY OF FREDERICK, Virginia, party of the second part, hereinafter referred to as "County FIRST BANK. a Virginia banking corporation, party of the third part, hereinafter referred to as "Bank and Steven G. BUTLER, Trustee, party of the fourth part, hereinafter referred to as "Trustee WHEREAS, Declarants are the fee simple owners of certain real property lying and being situated two miles south of the City of Winchester, in Shawnee Magisterial District, Frederick County, Virginia, containing 2.2021 acres, more or less, and further identified as Tax Parcel No. 64 -A -19 (hereinafter referred to as "the Property and WHEREAS. Declarants desire to impose a restrictive covenant on the Property regarding access to Route 822 (Westwood Drive); and WHEREAS, Bank is the beneficiary of two notes, each secured partially or wholly by the Property, and evidenced by two deeds of trust recorded as Instrument Nos. 020018297 (modified in Instrument No. 040024652) and 050005350 among the land records of Frederick County, Virginia, the Trustee being the trustee under the aforesaid deeds of trust. NOW. THEREFORE, Declarants hereby impose the following restrictive covenant on the Property: There shall be no access across the Property from Route 822 (Westwood Drive) to that certain parcel or tract of real property in Frederick County, Virginia, containing 26.8733 acres, more or less, and further identified as Tax Parcel No. 64 -A -23. This Restrictive Covenant shall run to the benefit of, and be enforceable by, the County. This Restrictive Covenant shall run with, and be appurtenant to, the Property, and shall be binding upon the Declarants, their heirs, personal representatives, successors, and assigns. The Bank and the Trustee join in the execution of this Declaration of Restrictive Covenant to evidence their consent and approval of the placement of the restrictive covenant on the Property. WITNESS THE FOLLOWING SIGNATURES AND SEALS: (SEAL) 09/02/2005 12:19 5404502293 By: By: (Notary acknowledgments to be added for all above parties) SEAN A EVERHART PLC PAGE 03/03 Steve A. DuBrueler (SEAL) Ray N. DuBrueler (SEAL) Madeline F. DuBrueler COUNTY OF FREDERICK VIRGINIA (SEAL) FIRST BANK Earl W. Foreman, Vice President Steven G. Butler, Trustee (SEAL) (SEAL) DECLARATION OF, RESTRICTIVE COVENANT THIS DECLARATION OF RESTRICTIVE COVENANT, dated this day of 2005, by and among Steven A. DUBRUELER, Ray N. DUBRUELER and Madeline F. DUBRUELER, parties of the first part, hereinafter referred to as "Declarants the COUNTY OF FREDERICK, Virginia, party of the second part, hereinafter referred to as "County FIRST BANK, a Virginia banking corporation, party of the third part, hereinafter referred to as "Bank and Steven G. BUTLER, Trustee, party of the fourth part, hereinafter referred to as "Trustee WHEREAS, Declarants are the fee simple owners of certain real property lying and being situated two miles south of the City of Winchester, in Shawnee Magisterial District, Frederick County, Virginia, containing 2.2021 acres, more or less, and further identified as Tax Parcel No. 64 -A -19 (hereinafter referred to as "the Property and WHEREAS, Declarants desire to impose a restrictive covenant on the Property regarding access to Route 822 (Westwood Drive); and WHEREAS, Bank is the beneficiary of two notes, each secured partially or wholly by the Property, and evidenced by two deeds of trust recorded as Instrument Nos. 020018297 (modified in Instrument No. 040024652) and 050005350 among the land records of Frederick County, Virginia, the Trustee being the trustee under the aforesaid deeds of trust. NOW, THEREFORE, Declarants hereby impose the following restrictive covenant on the Property: There shall be no access across the Property from Route 822 (Westwood Drive) to that certain parcel or tract of real property in Frederick County, Virginia, containing 26.8733 acres, more or less, and further identified as Tax Parcel No. 64 -A -23. This Restrictive Covenant shall run to the benefit of, and be enforceable by, the County. This Restrictive Covenant shall run with, and be appurtenant to, the Property, and shall be binding upon the Declarants, their heirs, personal representatives, successors, and assigns. The Bank and the Trustee join in the execution of this Declaration of Restrictive Covenant to evidence their consent and approval of the placement of the restrictive covenant on the Property. WITNESS THE FOLLOWING SIGNATURES AND SEALS: (SEAL) (Notary aclmowledgments to be added for all above parties) Steve A. DuBrueler (SEAL) Ray N. DuBrueler (SEAL) Madeline F. DuBrueler COUNTY OF FREDERICK VIRGINIA By: (SEAL) FIRST BANK By: Earl W. Foreman, Vice President Steven G. Butler, Trustee (SEAL) (SEAL) _09/14/2005 15:02 Tax Maple: Prepared by and Return to: 5404502293 64.((A))•19 Sean A. Everhart, PLC 158 Front Royal Pike, Suite 305C Winchester, Virginia 22602 DECLARATION OF RESTRICTIVE COVENANT SEAN A EVERHART PLC PAGE 02/06 THIS DECLARATION OF RESTRICTIVE COVENANT, is made this day of 2005, by and among Steve A. DUBRUELER, Ray N. DUBRUELER, and Madeline F. DUBRUELER (hereinafter referred to as "Declarants the COUNTY OF FREDERICK. Virginia (hereinafter referred to as "County"), FIRST BANK, a Virginia Banking Corporation (hereinafter referred to as `Bank and Stephen G. BUTLER TRUSTEE (hereinafter referred to as "Trustee WITNESSETH: WHEREAS, Declarants are the fee simple owners of certain real property lying and being situated two miles south of the City of Winchester, in Shawnee Magisterial District, Frederick County, Virginia, containing 2.2021 acres, more or less, and further identified as Tax Parcel No. 64- A-19 (the "Property"); WHEREAS, Declarants desire to impose a restrictive covenant on the Property regarding access to Route 822 (Westwood Drive); WHEREAS, Bank is the beneficiary of two Notes, each secured partially or wholly by the Property, and evidenced by two deeds of trust recorded as Instrument Numbers 020018297 (modified in Instrument 040024652) and 050005350 among the land records of Frederick County, Virginia, and Trustee being the trustee under aforesaid deeds of trust; NOW, THEREFORE, Declarants hereby impose on the Property the following restrictive covenant: At such time the Frederick County Board of Supervisors approves the Freedom Manor Proffer Statement and Generalized Development Plan to allow for an inter parcel connection that will provide access to the Property: (1) there shall be no entrances from or across the Property from Route 822 (Westwood Drive) and (2) there shall be no access across the Property to Route 822 for the benefit of any other property and no other property shall have access across the Property to Route 822. This Restrictive Covenant shall run to the benefit of, and be enforceable by, the County. This Restrictive Covenant shall run with, and be appurtenant to, the Property, and shall be binding upon the Declarants, their heirs, personal representatives, successors, and assigns. The Bank and Trustee join in the execution of this Declaration of Restrictive Covenant to evidence their consent and approval of the placement of the restrictive covenant on the Property. Page 1 of 5 09/14/2005 15:02 5404502293 SEAN A EVERHART PLC PAGE 03/05 WITNESS THE FOLLOWING SIGNATURE(S) AND SEAL(S): My Commission Expires: (SEAL) Steve A. DuBrueler (SEAL) Ray N. DuBrueler (SEAL) Madeline F. DuBrueler COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Steve A. DuBrueler, Ray N. DuBrueler, and Madeline F. DuBrueler, this day of September, 2005. Notary Public Page 2 of 5 09/14/2005 15:02 5404502293 My Commission Expires: SEAN A EVERHART PLC PAGE 04/06 FIRST BANK, a Virginia Banking Corporation By: (SEAL) Earl W. Foreman, Vice President COMMONWEALTH OF VIRGINIA COUNTY OF FREDERICK, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Earl W. Foreman, Vice President of First Bank, a Virginia Banking Corporation, this day of September, 2005. Notary Public Page 3 of 5 ,09/14/2005 15:02 5404502293 SEAN A EVERHART PLC PAGE 05/06 COMMONWEALTH OF VIRGINIA CITY OF WINCHESTER, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by Stephen G. Butler, Trustee, this day of September, 2005. My Commission Expires: Stephen G. Butler, Trustee Notary Public (SEAL) Page 4 of 5 09/14/2005 15:02 5404502293 SEAN A EVERHART PLC PAGE 06/06 My Commission Expires: COUNTY OF FREDERICK, VIRGINIA By: (SEAL) COMMONWEALTH OF VIRGINIA CITY OF WINCHESTER, to wit: The foregoing Declaration of Restrictive Covenant was acknowledged before me, a Notary Public in the aforementioned jurisdiction, by this day of September, 2005. Notary Public Page 5 of 5