Section 1.1 “Association” shall mean and refer to Stonebridge Homeowners Association, Inc., a New Mexico nonprofit corporation established for the purposes set forth herein.
Section 1.2 “City” shall mean and refer to the City of Albuquerque, Bernalillo County, New Mexico.
Section 1.3 “Common Areas” shall mean and refer to that portion of the Property, if any, including any improvements thereon, conveyed to the Association free and clear of monetary encumbrances for the common use and benefit of the Owners.
Section 1.4 “Common Maintenance Areas” shall mean and refer to the Common Areas, and any areas within public rights-of-way, easements (public and private), private park(s), streets, homeowner tracts, temporary desilting ponds, surge ponds, swimming pool, and any improvements, or landscaping that the Board of Directors of the Association deems necessary or appropriate to maintain for the common benefit of the members.
Section 1.5 “Declarant” shall mean and refer to Centex Homes and its successors and assigns who are designated as such in writing by Declarant, and who consent in writing to assume the duties and obligations of the Declarant with respect to the Lots acquired by such successor or assign.
Section 1.6 “Declaration” shall mean and refer to this Declaration of Covenants, Conditions and Restrictions for Stonebridge, and any amendments and supplements thereto made in accordance with its terms.
Section 1.7 “Lot” shall mean and refer to any of the plots of land indicated upon the recorded subdivision plat(s) of the Property or any part thereof creating single-family homesites, but only if the plot of land ahs in place an infrastructure (including utilities and streets) necessary to allow construction of a single-family home. Common Areas and areas deeded to a governmental authority or utility, together with all improvements thereon, shall not be included as part of the definition of a Lot.
Section 1.8 “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot, including contract sellers, but excluding those having an interest merely as security for the performance of an obligation.
Section 1.9 “Plat” shall mean and refer to the final plat of Stonebridge, Unit 1, recorded at Document #19999093741, Book 99C, Page 190, Plat Records of Bernalillo County, New Mexico.
Section 1.10 “Property” shall mean and refer to the real property described on Exhibit “A.” and such additions thereto as may be brought within the jurisdiction of the Association and be made subject to this Declaration.
Section 1.11 “Unit” shall mean and refer to any residential dwelling situated upon any Lot.
Section 2.1 Membership. The Declarant and every Owner of a Lot by virtue of ownership of such Lot will be a member of the Association. Membership will be appurtenant to and will not be separated from ownership of any Lot. There will be 2 classes of membership: Class A and Class B, being more particularly described in Section 2.7.
Section 2.2 Funding. Subject to the terms of this Article II, the Declarant for each Lot owned within the Property hereby covenants, and each Owner of any Lot by acceptance of a deed therefore, whether or not it will be so expressed in such deed, is deemed to covenant and agrees to pay to the Association:
Section 2.3 Regular Assessment or Charge.
Section 2.4. Special Assessments for Working Capital Fund, Nonrecurring Maintenance and Capital Improvements. In addition to the annual assessments authorized above, the Association may levy special assessments as follows:
Section 2.5 Non-payment of Assessments: Remedies of the Association. Any assessment not paid within 10 days after the due date will bear interest from the due date at the lesser of, but not to exceed, 18% per annum or the highest rate of interest allowed by New Mexico law, as amended from time to time. The Association will have the authority to impose late charges of $20.00 to compensate for the administrative and processing costs of late payments on such terms as it may establish by duly adopted resolutions, and the Association may bring an action at law against the Owner personally obligated to pay the same. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Maintenance Area or abandonment of his property.
Section 2.6 Subordinated Lien to Secure Payment. To Secure the payment of any assessment established hereby and to be levied on individual Lots as above provided, there is hereby reserved a lien for the benefit of the Association, said lien to be enforceable through appropriate proceedings at law or in equity by such beneficiary; provided, however, that each such lien shall be specifically made secondary, subordinate and inferior to all liens, present and future, given, granted, and created by or at the instance and request of the Owner of any such Lot to secure the payment of monies advanced or to be advanced on account of the purchase price and/or the improvement of any such Lot. Sale or transfer of a Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure will extinguish the lien of such assessment as to payments which became due prior to such sale or transfer. No sale, foreclosure or transfer will relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. The Association will have the right to file notices of liens in favor of such Association in the Official Records of Bernalillo County, New Mexico.
Section 2.7 Voting Rights. The Association will have two classes of voting membership:
Section 3.1 Purpose of Regular Assessment Fund. The Board of Directors, for the benefit of the Owners, will provide and will pay for out of the regular assessment fund (provided for in Article II above) the following:
Section 3.2 Powers and Duties of the Board of Directors. The Board of Directors, for the benefit of the Owners, will have the following general powers and duties, in addition to the specific powers and duties provided for herein and in the By-laws of the Association:
Section 3.3 Board Powers Exclusive. The Board of Directors will have the exclusive right to contract for all goods, services and insurance, payment of which is to made from the regular assessment fund and the exclusive right and obligation to perform the functions of the Board of Directors, except as otherwise provided herein.
Section 3.4 Maintenance Contracts. The Board of Directors, on behalf of the Association,
will have full power and authority to contract with any Owner or other person or entity for the performance
by the Association of services which the Board of Directors is not otherwise required to perform pursuant
to the terms hereof, such contracts to be upon such terms and conditions and for such consideration as the
Board of Directors may deem proper, advisable and in the best interest of the Association.
Section 4.1 Association to Hold. The Association will own all Common Areas in fee simple and assume all maintenance obligations with respect to any Common Areas which may be hereafter established. Nothing contained herein will create an obligation on the part of Declarant to establish any Common Areas.
Section 4.2 Liability Insurance. From and after the date on which title to any Common Area vests in the Association, the Association will purchase and carry a general comprehensive public liability insurance policy for the benefit of the Association and its members, covering occurrences on the Common Areas or the Common Maintenance Area (if desired by the Board of Directors). The policy limits will be as determined by the Board of Directors of the Association. The Association will use its best efforts to see that such policy will contain, if available, cross-liability endorsements or other appropriate provisions for the benefit of members, the Directors, and the management company retained by the Association (if any), insuring each against liability to each other insured as well as third parties. Any proceeds of insurance policies owned by the Association will be received, held in a segregated account and distributed to the Association’s general operating account, members, Directors, the management company and other insureds, as their interests may be determined.
Section 4.3 Condemnation. In the event of condemnation or a sale in lieu thereof of
all or any portion of the Common Areas, the funds payable with respect thereto will be payable to the
Association and will be used by the Association to purchase additional Common Areas to replace that which
has been condemned or to take whatever steps it deems reasonable necessary to repair or correct any damage
suffered as a result of the condemnation. In the event the Board of Directors of the Association
determines that the funds cannot be used in such a manner due to the lack of available land for
additional Common Areas or for whatever reason, any remaining funds may be distributed to each Owner on
a pro rata basis.
Section 5.1 Architectural Control Committee. A committee to be known as the Architectural Control Committee (the “ACC”) will be established consisting of 3 members.
Section 5.2 Scope of Review. No building, fence, wall, outbuilding, landscaping, swimming pool, athletic facility or other structure or improvement will be erected, altered, added onto or repaired upon any portion of the Property without the prior written consent of the ACC.
Section 5.3 Submission of Plans. Prior to the initiation of construction upon any Lot, the Owner thereof will first submit to the ACC a complete set of plans and specifications for the proposed improvements, including site plans, grading plans, landscape plans, floor plans depicting room sizes and layouts, exterior elevations, specifications of materials and exterior colors, and any other information deemed necessary by the ACC for the performance of its function. In addition, the Owner will submit the identity of the individual or company intended to perform the work and projected commencement and completion dates.
Section 5.4 Plan Review. Upon receipt by the ACC of all of the information required by this Article V, the ACC will have 30 days in which to review said plans. The proposed improvements will be approved if, in the sole and absolute opinion of the ACC:
Section 5.5 Non-conforming Structures. If there will be a significant or material deviation from the approved plans in the completed improvements such improvements will be in violation of this Article V to the same extent as if erected without prior approval of the ACC. The Acc, the Association or any Owner may maintain an action at law or in equity for the removal or correction of the non-conforming structure and, if successful, will recover from the Owner in violation all costs, expenses and fees incurred in the prosecution thereof.
Section 5.6 Immunity of ACC Members. No individual member of the ACC will have any personal liability to any Owner or any other person for the acts or omissions of the ACC if such acts or omissions were committed in good faith and without malice. The Association will defend any action brought against the ACC or any member thereof arising from acts or omissions of the ACC committed in good faith and without malice.
Section 5.7 Address for Notice. Requests for ACC approval or correspondence with the ACC will be
addressed to Stonebridge Architectural Control Committee and mailed or delivered in care of Centex Homes
at the address shown at the end of the signature block hereto, or such other address as may be designated
from time to time by the ACC. No correspondence or request for approval will be deemed to have been
received until actually received by the ACC in form satisfactory to the ACC.
Section 6.1 Utility Easements. As long as Class B membership will be in effect, the Declarant hereby reserves the right to grant perpetual, nonexclusive easements for the benefit of Declarant or its designees, upon, across, over, through and under any portion of the Common Area for ingress, egress, installation, replacement, repair, maintenance, use and operation of all utility and service lines and service systems, public and private, including, without limitation, cable television, telephone, gas and electric systems. Declarant, for itself and its designees, reserves the right to retain title to any and all pipes, lines, cables or other improvements installed on or in such easements. Upon cessation of Class B membership, the Association will have the right to grant the easements described herein.
Section 6.2 Declarant’s Easement to Correct Drainage. As long as Class B membership will be in effect, Declarant hereby reserves for the benefit of Declarant, a blanket easement on, over and under the ground within the Property to maintain and correct drainage of surface waters and other erosion controls in order to maintain reasonable standards of health, safety and appearance, and will be entitled to remove trees or vegetation, without liability for replacement or damages, as may be necessary to provide adequate drainage facilities. Notwithstanding the foregoing, nothing herein will be interpreted to impose any duty upon Declarant to correct or maintain any drainage facilities with the Property.
Section 6.3 Easement for Unintentional Encroachment. The Declarant hereby reserves an exclusive easement for the unintentional encroachment by any structure upon the Common Areas caused by or resulting from, construction, repair, shifting, settlement or movement of any portion of the Property, which exclusive easement will exist at all times during the continuance of such encroachment as an easement appurtenant to the encroaching Property to the extent of such encroachment.
Section 6.4 Easement for Perimeter Fence and Sidewalk. The Declarant hereby reserves for the benefit of Declarant and the Association an exclusive easement for a perimeter masonry and/or wooden fence and sidewalk running at the rear (and in some cases, the side) of Lots along the streets or commercial tracts surrounding the neighborhood. On the Plat, these areas are located immediately adjacent to Lots 14, 20, 35, 36, 37, 51, 55 through 74, 92 through 100, and 108. These Lots will be sold subject to the perimeter masonry wall and/or wooden fence and sidewalk and the fence and sidewalk easement described in this section, and the easement will be coextensive with the footprint of the fence and sidewalk. Additionally, the owners of these Lots will be responsible for the maintenance of the interior portion of the masonry wall or fence, including, but not limited to, control of the watering in the area upon which the fence is situated to prevent the shifting of the foundation of the wall or fence which could damage the wall and/or fence.
Section 6.5 Entry Easement. If the Owner fails to maintain the Lot as required herein, or in the event of emergency, the Association will have the right to enter upon the Lot to make emergency repairs and to do other work reasonably necessary for the proper maintenance and operation of the Property. Entry upon the Lot as provided herein will not be deemed a trespass, and the Association will not be liable for any damage so created unless such damage is caused by the Association’s willful misconduct or gross negligence.
Section 6.6 Storm Drain, Sewer and Water Easements. Easements for the installation and maintenance of utilities, including, but not limited to, storm water retention/detention ponds, are reserved as may be shown on the recorded Plat. Within these easement areas, no structure, planting or other material will be placed or permitted to remain which may damage or interfere with the installation and maintenance of such utilities, or which may hinder or change the direction of flow of drainage channels or slopes in the easements. The easement area of each Lot and all improvements contained therein will be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority, utility company or the Association is responsible.
Section 6.7 Temporary Completion Easement. All Lots will be subject to an easement of ingress and egress for the benefit of the Declarant, its employees, subcontractors, successors and assigns, over and upon the front, side and rear yards of the Property as may be expedient or necessary for the construction, servicing and completion of dwellings and landscaping upon Lots adjacent to the Property, provided that such easement will terminate 12 months after the date such Lot is conveyed to the Owner by the Declarant.
All Lots and dwellings will be used and occupied primarily for single-family residence purposes only.
No Lot or dwelling may be used for commercial, institutional or other non-residential purpose
(including residential day care facilities) if (a) the existence or operation of the business activity
is apparent or detectable by sight, sound or smell from outside the Unit; (b) the business activity does
not conform to all zoning requirements for the Property; (c) the business activity involves regular
visitation of the Unit by clients, customers, suppliers or other business invitees or door-to-door
solicitation of residents in the Property; and (d) the business activity diminishes the residential
character of the Property or constitutes a nuisance, or a hazardous or offensive use, or threatens the
security or safety of the other residents in the Property, as may be determined in the sole discretion
of the Board of Directors. This prohibition will not apply to “garage sales” conducted entirely on an
Owner’s Lot in accordance with guidelines (if any) established by the Association provided that no Owner
will conduct more than 1 garage sale of no more than 2 days duration during any 6 month period.
Section 8.1 Owners’ Easements of Enjoyment. Every Owner will have a right and easement in and to the Common Areas and a right and easement of ingress and egress to, from and through said Common Areas, and such easement will be appurtenant to and will pass with the title to every Lot, subject to the following provisions:
Section 8.2 Effect of Declaration. Reference in any deed, mortgage, trust deed or any other recorded documents to the easements, restrictions and covenants herein described or to this Declaration will be sufficient to create and reserve such easements and covenants to the respective grantees, mortgages, or trustees of said parcels as fully and completely as if those easements, restrictions and covenants were fully related and set forth in their entirety in said documents.
Section 8.3 Rezoning Prohibited. No Lot will be rezoned to any classification allowing commercial, institutional or other non-residential use without the express consent of the Association and Declarant, which may be withheld in Declarant’s sole discretion. Declarant or the Association may enforce this covenant by obtaining an injunction against any unapproved rezoning at the expense of the enjoined party.
Section 8.4 Lot Consolidation. Declarant may divide any Lot and/or consolidate any adjoining Lots and/or any portion thereof. The Lot or Lots resulting from such division and/or consolidation shall bear, and the Owner(s) thereof shall be responsible for, all assessments theretofore applicable to the Lots which are divided and/or consolidated; provided, however, if a Lot is split and not completely consolidated into another Lot, then the assessment amount shall be prorated on a square footage basis. Each such building site shall meet all lawful requirements of any applicable statute, ordinance or regulation.
Section 8.5 Drainage Alteration Prohibited. The surface water drainage contours of
each Lot will conform to the grading plan established by the Declarant and approved by the City of
Albuquerque. No Owner will fill or alter any drainage swale established by the Declarant, nor will any
Owner install landscaping or other improvements that may damage or interfere with the installation and
maintenance of utilities or which may obstruct or divert surface water runoff from the drainage patterns,
swales and easements established by the Declarant.
Section 9.1 Nuisances. No noxious or offensive activity will be carried on upon any Lot, nor will anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.
Section 9.2 Development Activity. Notwithstanding any other provision herein, Declarant and its successors and assigns, will be entitled to conduct on the Property all activities normally associated with and convenient to the development of the Property and the construction and sale of single-family dwelling units on the Property.
Section 9.3 Temporary Structures. No structure of a temporary character, including, without limiting the generality thereof, any trailer, tent, shack, garage, barn, motor home or mobile home or other outbuilding, and no prefabricated or relocated structure will be used on any Lot at any time as a residence, either temporarily or permanently. This restriction will not be interpreted to limit the right of Declarant to use trailers or outbuildings as sales offices, selection center offices construction offices or material storage facilities.
Section 9.4 Signs. No sign or emblem of any kind may be kept or placed upon any Lot or mounted, painted or attached to any Unit, fence or other improvement upon such Lot so as to be visible from public view or mounted on any vehicle or trailer parked or driven in the Property or the subdivision or carried by any person or by any other means displayed within the Property or the subdivision except the following:
Section 9.5 Vehicles.
Section 9.6 Pets, Livestock and Poultry. No animals, livestock or poultry of any kind will be raised, bred or kept on any Lot, except for cats, dogs or other generally recognized household pets, provided that they are not kept, bred, or maintained for any commercial purpose or for food. It is the purpose of these provisions to restrict the use of the Property so that no person will quarter on the premises cows, horses, bees, hogs, pigs, sheep, goats, ducks, geese, chickens, turkeys, skunks, or other animals that may interfere with the quietude, health or safety of the community. No more than 4 animals may be kept on a single Lot. All such animals will be kept in strict accordance with all local laws and ordinances (including leash laws) and in accordance with all rules established by the Association. All animals must be properly tagged for identification. No animal will be allowed to run at large, and all animals will be kept within enclosed areas which must be clean, sanitary, and reasonable free of refuse, insects, and waste at all times.
Section 9.7 Garbage and Refuse Disposal. No Lot will be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste will not be kept except in sanitary containers. All cans, bags, containers or receptacles for the storing or disposal of trash, garbage, refuse, rubble, or debris will be stored, kept, placed or maintained on any Lot where visible from any street except solely on a day designated for removal of garbage and rubbish and on which days only such cans, bags, containers, and receptacles may be placed in front of a residence and beside a street for removal but will be removed from view before the following day. Materials incident to construction of improvements may be stored on Lots during construction by Declarant.
Section 9.8 Air-Conditioning Units. No air-conditioning apparatus will be installed on the ground in front of a residence nor will any air-conditioning apparatus or evaporative cooler be attached to any front wall or any window of a residence.
Section 9.9 Sight Distance at Intersections. No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between 2 and 6 feet above the roadways will be placed or permitted to remain on any corner Lot within the triangular area formed by the street property lines and a line connecting them, at points 25 feet from the intersection of the street property lines, or in the case of a rounded property corner, from the intersection of the street property lines extended. The same sight line limitations will apply on any Lot within 10 feet from the intersection of a street property line with the edge of a driveway or alley pavement. No tree will be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines.
Section 9.10 Parking. No vehicles, trailers, implements or apparatus may be driven or parked in the Common Areas, the Common Maintenance Areas or on any easement unless such vehicle, trailer, implement or apparatus is in use for maintaining such area or easement, provided, however, that this restriction will not apply to driveways or streets intended for vehicular use.
Section 9.11 Commercial or Institutional Use. No Lot, and no building erected or maintained on any Lot, will be used for manufacturing, industrial, business, professional, commercial, institutional or other non-residential purposes, except as set forth in Article VII.
Section 9.12 Detached Buildings. No detached accessory buildings, including, but not limited to, detached garages (other than provided herein) and storage buildings, will be erected, placed or constructed upon any Lot without the prior consent of the ACC. Every outbuilding, inclusive of such structures as a storage building, or greenhouse will be compatible with the dwelling to which it is appurtenant in terms of its design and material composition. Exterior paint and roofing materials of such outbuilding shall be consistent with the existing paint and roofing materials of the dwelling.
Section 9.13 Fences. All fences and walls will comply with City requirements. No fence, wall, or hedge will be erected or maintaine3d on any Lot nearer to the street than the building setback lines for the front and side yards, except for fences erected in conjunction with model homes or sales offices. Fences constructed on corner lots may be erected for the side yard as long as such fencing complies with City requirements. All perimeter fences will be constructed of wood, masonry, and/or masonry/metal combination except for retaining walls installed by Declarant or retaining walls or decorative walls approved by the ACC. All side and rear property lines must be fenced and meet City set-back criteria. All perimeter fences will be 5 feet in height unless another height is approved by the ACC but, in any event, no such fence will be less than 4 feet in height or greater than 8 feet in height. No chain-link, metal cloth or agricultural fences may be built or maintained on any Lot unless such fence is located within the perimeter fence in such a manner that it is not visible from any street, alley, park, Common Area or public area (unless otherwise approved by the ACC in the manner described below). Unless otherwise agreed between Owners, side and rear yard fences that separate adjacent Lots will be owned and maintained by the Owner on whose Lot the fence exists, or if the location is indefinite, such fence will be maintained by the Owners whose Lots are involved jointly with expenses being shared equally. Notwithstanding the foregoing, the ACC will have the right and authority to approve variances of fencing height, material and/or location for reasonable cause or to alleviate hardship as determined in the sole judgment of the ACC; provided however, the ACC may not approve a variance which contradicts the zoning and/or subdivision ordinances of the City unless the City has previously approved the variance. No Owner may modify, adjust or alter the perimeter wall on McMahon Boulevard, Tuscany Drive or any retaining wall installed by the Declarant.
Section 9.14 Sidewalks. All sidewalks will conform to City specifications and regulations. If a homeowner, its representative, agent or employee, causes damage to any sidewalk located on or adjacent to such homeowner’s Lot, the homeowner must repair or replace the sidewalk so that it will be returned to its original condition.
Section 9.15 Landscaping and Exterior Maintenance. Landscaping must meet the requirements of the City, Article 6-1-1 “Water Conservation Landscape and Water Waste Ordinance Dated 10/1/95”, or the most recent update. All landscaping located on any Lot will be properly maintained at all times by the Lot Owner. Each Lot Owner will keep all shrubs, trees, grass, and plantings of every kind on his Lot cultivated, pruned, free of trash, and other unsightly material. All improvements upon any Lot will at all times be kept in good condition and repair and adequately painted or otherwise maintained by the Lot Owner. Declarant, the Association, and the ACC will have the right at any reasonable time to enter upon any Lot to replace, maintain, and cultivate shrubs, trees, grass, or other plantings as deemed necessary; and to paint, repair, or otherwise maintain any improvements in need thereof, and to charge the cost thereof to the Lot Owner.
Section 9.16 Antennae, Satellite Dishes and Solar Collectors. Except with the written permission of the ACC or as provided herein, no Owner may erect or maintain (a) any direct broadcast satellite (“DBS”) antenna greater than one meter (39 inches) in diameter, or (b) any multi-channel multipoint distribution service (wireless cable) (“MMDS”) antenna greater than one meter (39 inches) in diameter; provided, however, such DBS or MMDS antenna being less than one meter in diameter may be placed in the least conspicuous location on a Lot where an acceptable quality signal can be received as long as such DBS or MMDS antenna is screened from view (for aesthetic reasons) of any street, alley, park, Common Area or other public area, unless otherwise approved in writing by the ACC. The installation of any other antennal structure, such as a television broadcast service (“TVBS”) antenna, will be mounted in the attic of a residential structure unless written permission is given by the ACC to place such antennal structure in another location. Except with the written permission of the ACC, no solar collector panels may be laced on or around the residential structure.
Section 9.17 Clothes Hanging Devices. No clothes hanging devices exterior to a dwelling are to be constructed on the Lot except those of a temporary nature that are screened from view from the front of the Lot.
Section 9.18 Window Treatment. No aluminum foil, reflective film or similar treatment will be placed on windows or glass doors. Temporary window treatments must be removed within 45 days.
Section 9.19 Limitation on Square Feet. The minimum square footages area of Units erected on the Lots will not be less than 900 square feet.
Section 9.20 Oil and Mining Operations. No oil drilling, oil development operations, oil refining, quarrying or mining operation of any kind will be permitted upon or in any Lot, nor will oil wells, tanks, tunnels, mineral excavations, or shafts be permitted upon any Lot. No derrick or other structure designed for use in boring for oil or natural gas will be erected, maintained or permitted upon any Lot. No tank for the storage of oil or other fluids may be maintained on any of the Lots above the surface of the ground.
Section 9.21 Mail Boxes. Mail boxes will be erected and maintained upon areas determined by the U. S. Postal Service in accordance with the current postal authority standards.
Section 9.22 Garages and Driveways. An enclosed garage able to accommodate up to 2 automobiles must be constructed and maintained for each residence. Additionally, all openings to garages must be situated within the setback lines set out in Section 9.23 below. Garages may be used as a builder’s sales offices prior to permanent occupancy of the main structure; however, sales offices must be converted to garages prior to permanent occupancy. With the exception of periods when garages are used by the Declarant as sales offices, all garages will be maintained for the storage of automobiles, and no garage may be enclosed or otherwise used for habitation. No carport will be permitted on a Lot.
Section 9.23 Setback Lines. No dwelling will be located on any Lot nearer to the front Lot line or nearer to the side street line than the minimum setback lines shown on the Plat or required by the City. Notwithstanding the foregoing, the ACC will have the right and authority to approve variances from the setback requirements for reasonable cause or to alleviate a hardship; provided however, the ACC may not approve a variance which contradicts the setback requirements of the zoning and/or subdivision ordinances of the City unless the City has previously approved the variance.
Section 9.24 Athletic and Recreational Facilities. Outdoor athletic and recreational facilities such as playscapes, swing sets and sport courts of a permanent nature will not be placed on any Lot within the Property or the subdivision between the street right-of-way and the front of a Unit unless approved by the ACC pursuant to Article V. Notwithstanding the foregoing, basketball goals may be placed adjacent to the driveway but within the Lot.
Section 9.25 Security. The Association is not responsible for security of the neighborhood or any Unit and the Owners are exclusively responsible for security for home and property.
Section 9.26 Burning. Except within fireplaces in the main residential dwelling and except for outdoor cooking, no burning of anything will be permitted anywhere on the Property.
Section 9.27 Utilities. Except as to special street lighting or other aerial facilities which may be required by the City or by the franchise of any utility company or which may be installed by the Declarant pursuant to its development plan, no aerial utility facilities of any type (except meters, risers, service pedestals, transformers and other surface installations necessary to maintain or operate appropriate underground facilities) will be erected or installed on the Property whether upon individual Lots, easements, streets or rights-of-way of any time, either by the utility company or any other person or entity, including, but not limited to, any person owning or acquiring any part of the Property, and all utility service facilities (including, but not limited to, water, sewer, gas, cable, electricity and telephone) will be buried underground unless otherwise required by a public utility. No individual water supply system or sewage disposal system will be permitted on any Lot, including, but not limited to, water wells, cesspools or septic tanks.
Section 9.28 Exterior Holiday Decorations. Lights or decorations may be erected on the exterior of Units in commemoration or celebration of publicly observed holidays provided that such lights or decorations do not unreasonably disturb the peaceful enjoyment of adjacent Owners by illuminating bedrooms, creating noise or attracting sight-seers. All lights and decorations must be removed within 30 days after the holiday has ended. Christmas decorations or lights may not be displayed prior to November 1st of any year. For other holidays, decorations or lights may not be displayed more than 3 weeks in advance of the holiday. The Association will have the right, upon 30 days prior written notice, to enter upon any Lot and summarily remove exterior lights or decorations displayed in violation of this provision. The Association, and the individuals removing the lights and decorations, will not be liable to the Owner for trespass, conversion or damages of any kind except in the case of intentional misdeeds and gross negligence.
Section 9.29 Construction Activities. This Declaration will not be construed so as to
unreasonably interfere with or prevent normal construction activities during the construction or
remodeling of or making of additions to improvements by a Lot Owner (including Declarant) upon any Lot
within the Property. Specifically, no such construction activities will be deemed to constitute a
nuisance or a violation of this Declaration by reason of noise, dust, presence of vehicles or
construction machinery, posting of signs or similar activities, provided that such construction is
pursued to completion with diligence and conforms to usual construction practices in the area. If
construction upon any Lot does not conform to usual practices in the area as determined by the ACC
in its sole good faith judgment, the ACC will have the authority to obtain an injunction to stop such
construction. In addition, if during the course of construction upon any Lot, there is an excessive
accumulation of debris of any kind that is offensive or detrimental to the Property or any portion
thereof, then the ACC may contract for or cause such debris to be removed, and the Lot Owner will be
liable for all expenses incurred in connection therewith.
By acceptance of the deed to any Lot covered by this Declaration, the Owner covenants and agrees with
the Owners of all other Lots within the Property that no Owner or resident of any Lot will engage in
picketing, protest marches, sit-in demonstrations, protest speeches or other forms of public protest,
including without limitation, displaying signs or placards within public view, upon any Lot or within
any Common Area, easement or street right-of-way adjacent to any Lot, or affixed to any vehicle or
apparatus upon or adjacent to any Lot. This prohibition will not affect the right of any person to
participate in any other form of public protest conducted outside the area depicted on the recorded
subdivision Plat. No Owner or resident of any Lot will engage in conduct that tends to vilify, ridicule,
denigrate, or impugn the character of any other Owner or resident if such conduct occurs on any Lot,
Common Area easement or street depicted on the subdivision Plat. Each Owner, by acceptance of the deed
to any Lot, will be deemed to have accepted the foregoing prohibitions as reasonable limitations on his
constitutional right of free speech, and to recognize and agree that all Owners have the right to peaceful
enjoyment of their property; the right of privacy; the right to practice their own religion; the freedom
of association; and the right to engage in a profession, business or lifestyle of their own choosing
provided that the conduct of such profession, business or lifestyle is not illegal and does not otherwise
violate any provision of this Declaration.
Section 11.1 Annexation by Declarant. At any time during the initial term of this Declaration, the Declarant may, at its sole option, annex additional property into the Association to be subject to the terms hereof to the same extent as if originally included herein and subject to such other terms, covenants, conditions, easements and restrictions as may be imposed thereon by Declarant, provided that the annexation will be governed by the following rules:
Section 11.2 Annexation by Action of Members. At any time the Board of Directors may request approval of the membership for the annexation of additional property into the Association to be subject to all of the terms of this Declaration to the same extent as if originally included herein. No such annexation shall be effective unless approved in writing by members entitled to cast two-thirds of the votes in each class of membership, and by FHA and VA as set fort in subsection 11.1 (a) above. Any property that is not owned by Declarant may be annexed hereto according to the foregoing requirements; provided, however, that no such annexation shall be effective without the consent and joinder of the owners of the property to be annexed. Such annexation must be evidenced by a Declaration of Annexation, as set forth in subsection 11.1(c) above, executed by the parties herein described.
Section 11.3 No Duty to Annex. Nothing herein contained shall establish any duty or obligation on the part of the Declarant or any member to annex any property into the Association, and no owner of property excluded from the Association shall have any right to have such property annexed thereto.
Section 11.4 Effect of Annexation on Class B Membership. In determining the number of lots owned by Declarant for purposes of Class B membership status according to Section 2.7, the total number of Lots covered by the Association, including all Lots annexed thereto, will be considered. If Class B membership has previously lapsed but annexation of additional property restores the ratio of Lots owned by Declarant to the number required for Class B membership, such Class B membership will be reinstated until it expires pursuant to the terms of Section 2.7.
Section 12.1 Enforcement. The Association or any Owner will have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges imposed now or in the future by the provisions of this Declaration. Failure of the Association or any Owner to enforce any covenant or restriction of this Declaration will in no event be deemed a waiver of the right to do so in the future.