HomeMy WebLinkAboutSUB200200262 Agreements Final Plat 2003-04-10Document prepared by:
LeClair Ryan
123 East Main Street
80' Floor
Charlottesville, Virginia22902
Tax map 56, Parcel 10013
1WfAYCU A C1V
DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS
THIS DECLARATION is made this 14`PA day of _ r t ( _, 2003 by 250 WEST
HOLDINGS, LLC, a Virginia limited liability company, herein the "Declarant".
WITNESSETH:
WHEREAS, Declarant is the owner of certain real property (herein the "Property")
located in the Whitehall Magisterial District of Albemarle County, Virginia, which is more
particularly described as set forth in Schedule A attached hereto and recorded herewith; and
WHEREAS, Declarant has plans to subdivide the Property into common area and fifty-
four (54) lots to be served by public roads accessing off of Rockfish Gap Turnpike (U.S.
Route 250); and
WHEREAS, Declarant shall convey the said properties, subject to certain covenants,
conditions, restrictions, easements, reservations, liens and charges as hereinafter set forth;
NOW, THEREFORE, Declarant hereby declares that all of the properties described
above shall be held, sold and conveyed subject to the following covenants, conditions,
restrictions, easements, reservations, liens and charges (and any valid amendments or
supplements hereto), all of which are for the purpose of enhancing and protecting the value,
desirability, and attractiveness of the Property and which shall run with the Property and shall be
binding on all parties having or acquiring any right, title or interest in the Property or any part
thereof, and shall inure to the benefit of each owner thereof
ARTICLE I - DEFINITIONS
The following words, when used in this Declaration, shall have the following meanings:
Section 1. "Architectural Control Board" or "ACB" shall mean and refer to the board
established in Article VII herein for the purpose of regulating the external design, appearance
and use of the Common Area, Lots and improvements thereon.
Section 2. "Association" shall mean and refer to Foxchase Owners' Association, Inc., a
Virginia non -stock corporation, its successors and assigns.
Section 3. "Board of Directors" shall mean and refer to the Board of Directors of the
Association.
Section 4. "Club facilities" shall mean and refer to any land, buildings, and facilities
which are initially privately owned by Declarant, its successors and assigns, and which are
operated as a private club with recreational facilities which may, at the Declarant's sole
discretion, include a club house, pool, tennis court, and all related and supporting equipment and
improvements. Club Facilities may be shown on plats as located on Common Areas.
Section 5. "Common Area" shall mean and refer to all real property with any
improvements thereon owned by the Declarant or the Association for the common use and
enjoyment of the members of the Association and shown on any recorded subdivision plats of
the Property as Common Area, Open Space or private roads, if any. The term "Common Areas"
shall also include any personal property acquired or leased by the Association if said property is
so designated.
Section 6. "Declarant" shall mean and refer to 250 West Holdings, LLC, a Virginia
limited liability company, its successors and assigns appointed by recorded instrument.
Section 7. "Declaration" shall mean and refer to the covenants, conditions, restrictions,
easements, reservations, liens and charges and all other provisions herein set forth in this entire
document, as the same may from time to time be amended or supplemented.
Section S. "Lot" shall mean and refer to any plot of land within the Property intended by
the Declarant to be a dwelling site and to any separate numerically designated plot of land within
the Property shown or described on any recorded plat of Foxchase with the exception of
Common Area.
Section 9. "Member" shall mean and refer to every person or entity who holds
membership in the Association.
Section 10. "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 such interest merely as security for the performance of an obligation.
2
Section 11. "Property" shall mean and refer to that certain real property herein described
on Schedule A, and such additions thereto as may hereafter be brought within the jurisdiction of
the Association, all of which may be designated as Foxchase or Montclair.
Section 12. "Public Roads" shall mean and refer to the entire platted right of way for the
public roads on the Property as described on the subdivision plats of Foxchase, together with
such additional public roads as may be hereafter dedicated to serve such additional real property
as may be added by Supplemental Declaration.
ARTICLE II - PROPERTY SUBJECT TO DECLARATION
Section 1 - Existing Propertv. The real property which at this time is and shall be held,
transferred, sold, conveyed, given, leased, devised, inherited and occupied subject to the
covenants, conditions, restrictions, easements, reservations, liens and charges set forth in the
Declaration is the Property as described herein which shall be more specifically described by
certain subdivision plats to be recorded in the Clerk's Office for the Circuit Court of Albemarle
County, Virginia with deeds or "Supplementary Declarations" executed and acknowledged by
the Declarant. The Declarant anticipates subdividing the Property into fifty-four (54) lots
enumerated Lots 1 through 54, inclusive, and Common Area. A Supplementary Declaration
shall extend the operation and effect of this Declaration and the jurisdiction of the Association to
any added real property, including any private roads.
Section 2 - Additions to Existing Property. Declarant shall have the right (but not the
obligation) without further consent of the Association or of other Owners to bring within the plan
and operation of the Declaration and the jurisdiction of the Association other real property in the
vicinity of the Property. To accomplish this, the Declarant shall first obtain the approval of the
County of Albemarle, if required, and then shall record one or more Supplementary Declarations
(in the form contemplated in Section 1 above) with respect to the real property being added.
ARTICLE III - ASSOCIATION
Section 1 - Duties. Declarant has incorporated or will incorporate under the laws of the 4 m
It 0
Commonwealth of Virginia a non -stock corporation to be known as Foxchase Owners p;�
Association, Inc., to which shall be delegated the powers of owning, maintaining and
administering the Common Area, including but not limited to on- or off -site storm water
detention and runoff control, street maintenance and snow removal on private roads or paths, if
any; maintaining the improvements on Lots as set forth herein; administering and enforcing the
covenants, conditions, restrictions, easements and reservations set forth herein; collecting and
disbursing the assessments and charges hereinafter created; and promoting the health, safety,
common good and general welfare of the residents of Foxchase.
Section 2 - Membership. Every Owner of a Lot shall be a Member of the Association. In
addition, Declarant shall be a Member of the Association so long as Declarant owns any Lot or
Property. Membership shall be appurtenant to and may not be separated from ownership of any
Lot. Ownership of such Lot (or Property in the case of Declarant) shall be the sole qualification
for membership.
Section 3 - Voting Rights. The Association shall have two classes of voting membership:
Class A. Class A Members shall be all Owners of Lots with the exception of
Class B Members. Class A Members shall be entitled to one vote for each Lot owned by said
Class A Member. In the event that more than one person or entity holds such interest in any Lot,
all such persons or entities shall be Members but the vote for such Lot shall be exercised as they
determine among themselves, but in no event shall more than one vote be cast with respect to
any such Lot owned by a Class A Member.
Class B. The Class B Member shall be the Declarant or its successors and assigns
as Declarant may appoint by an instrument recorded in the Clerk's Office of Albemarle County,
Virginia. The Class B Member shall be entitled to fifty-three (53) votes for each Lot owned.
The Class B membership shall cease and be converted to Class A membership on the date on
which the number of votes in Class A membership exceeds the number of votes in Class B
membership.
Section 4 - Board of Directors. The Board of Directors of the Association shall be
elected by the Members as set forth in the Bylaws of the Association.
Section 5 - Powers and Duties of the Board of Directors. The Board of Directors shall
have all of the powers and duties necessary for the administration of the affairs of the
Association and may take any such action on behalf of the Association except that required to be
exercised or done by the Members of the Association. P
4
Section 6 - Powers and Duties of the Association. The powers and duties of the
Association shall be those set forth in this Declaration and in the Articles of Incorporation and
the By -Laws of the Association, as the same may be amended from time to time.
Section 7 - Quorum. At any called meeting of the Association, a quorum for the conduct
of business shall exist, if at least fifty percent (50%) of the total possible votes (total votes of
Class A and Class B) are represented either in person by Members or by written proxies signed
by the Members.
ARTICLE IV - COMMON AREA
Section 1- Composition. The Common Area consists of all areas shown and described as
Common Area, Open Space and private roads, if any, as shown on any recorded plat of any
portion of Foxchase made subject to this Declaration.
Section 2 - Title to Common Area. Declarant hereby declares that it will convey fee
simple title to the Common Area to the Association, at or before such time as the last Lot is sold,
and free and clear of all liens and encumbrances except those set forth herein. Upon conveyance
of any land or improvements by the Declarant to the Association as Common Area, which
conveyance shall not be refused, the Association shall immediately become responsible for
maintenance and operation of said property, and for such additional construction of
improvements thereon as may be authorized by the Association's Board of Directors.
Notwithstanding anything in the foregoing to the contrary, the Declarant reserves unto itself, its
successors, assigns and agents the right to enter upon any Common Area and the Club Facilities
for the purpose of constructing or maintaining indoor or outdoor recreational and community
facilities thereon.
Section 3 - Roads. Declarant does hereby establish and impose for the benefit of all Lots
private access easements along and across private roads subject to the Declaration, if any, for the
purpose of ingress and egress to and from all Lots and the public highways or secondary roads of
the Commonwealth of Virginia. The width of such private roads or private access easements, if
any, shall be shown and described on subdivision plats of Foxchase.
Section 4 - Regulation of Parking and Traffic. Each Lot shall have at least two off-street eP oM
parking spaces, which may include spaces located within or adjacent to a garage. The Board of
E
Directors shall have the power to place reasonable restrictions upon the use of private roads, if
any, including the establishment of speed limits and parking limitations. No Owner shall permit
motor vehicles to be regularly parked on private roads, if any, without written permission signed
by each member of the Board of Directors, which permission shall expire (if not before by its
terms) at the end of the calendar year when granted. The provisions of this section shall in no
way limit or proscribe the rights of Declarant and its agents, contractors and subcontractors to
park vehicles related to construction activities upon the Property.
Section 5 — Maintenance of Common Areas.
(a) In general. The Common Areas shall be maintained by the Association in
perpetuity to assure that they remain in substantially the condition they were in when approved
by the County of Albemarle. The ACB shall adopt standards for maintenance of the Common
Areas that will require routine maintenance, including the replacement, reconstruction and the
correction of defects or damage, of Common Areas to preserve their aesthetic qualities, safety
and health and to mandate timely amelioration of unsafe conditions. Regular maintenance shall
in no case occur less than annually, and amelioration of unsafe conditions shall occur as soon as
practicable after the Association receives actual notice of the condition. The cost of
construction, repair, maintenance, upkeep or replacement of Common Areas, if any, shall
not be borne by the County of Albemarle, the Virginia Department of Transportation or
any public agency.
(b) Private Roads. If Declarant establishes private roads as provided under
Article II above, such private roads shall be maintained by the Association. For the purposes of
this Section, "maintenance" shall include maintenance of the roads, alleys, curbs, gutters,
drainage facilities, utilities or other road improvements, and the prompt removal of snow, water,
debris or any other obstruction so as to keep the road or alley reasonably open for usage by all
vehicles, including emergency service vehicles. The initial construction of private roads shall be
borne by and completed by Declarant. Funds for future repair, maintenance, upkeep,
improvement, enhancement or replacement of such private roads shall be provided by the
Association through annual and special assessments as hereinafter described.
Section 6 - Members' Easements of Enjovment. Each Member, his immediate family,
guests and tenants shall have a right and easement of enjoyment in and to the Common Area and rb4 0
�o
lT
I
such easement shall be appurtenant to and shall pass with the title to every assessed Lot, subject
to this Declaration and further subject to the following provisions:
(a) the right of the Association to limit the number of Members and to place
other reasonable restrictions upon of the Common Area;
(b) the right of the Association to charge reasonable admission and other fees
for the use of Club Facilities, if any, situated upon the Common Area, if the need arises;
(c) the right of the Association, in accordance with its Articles of Incorporation
and Bylaws, to borrow money for the purpose of improving the Common Area and facilities and
in aid thereof to mortgage said Common Area, and the rights of such mortgagee in said
properties shall be subordinate to the rights of the Members hereunder;
(d) the right of the Association to suspend the voting rights and right to use of
the Club Facilities, if any, and/or Association provided services, by a Member for any period
during which any assessment against his Lot remains unpaid; and
(e) the right of the Association to convey or transfer all or any part of the
Common Area to any public agency, authority, or utility for such purposes and subject to such
conditions as may be agreed to by the members. Except for easements granted pursuant to
Section 7 hereof, no such conveyance or transfer of Common Area shall be effective unless an
instrument signed by Members entitled to cast two-thirds (2/3) of the votes has been recorded,
agreeing to such conveyance or transfer, provided written notice of the proposed action is sent to
every Member at the property address not less than ten (10) days nor more than thirty (30) days
in advance.
Section 7 - Easements. The Board of Directors of the Association may grant and convey
any easements in the Common Area in addition to those shown on recorded subdivision plats.
ARTICLE V — EASEMENTS
Section 1 - Drainage and Utility Easements. Declarant reserves unto himself, his
successors and assigns, a perpetual and alienable easement and right of way on, above and
underground through all areas subject to this Declaration and any Supplementary Declaration,
whether within the boundaries of Lots or Common Areas and (excepting only such land If `o°
4�
designated by the ACB as approved building sites or upon which a structure is built which is
7
approved by the ACB) to construct, maintain, inspect, replace and repair lines, wires, cables,
conduits, sewers, pipes, water mains and other suitable equipment and facilities for the
conveyance of water, sewer, gas, telephone, electricity, television cable, exterior lighting and
other utilities and public conveniences and for storm and surface water drainage, including pipes,
ditches, culverts, swales and other suitable facilities for the disposition of storm and surface
water drainage together with the right of ingress and egress to all such facilities and easements
for the construction and maintenance thereof As used herein, the phrase "land designated by the
ACB as approved building sites" shall mean (i) the area under buildings, patios, walks, decks,
porches or other improvements constructed by Declarant or its agents, contractors or
subcontractors and (ii) the area under other buildings, patios, walks, decks, porches or other
improvements, the location of which is approved by the ACB in accordance with Article VII
herein. The easements provided for herein shall include the right to cut any trees, brush and
shrubbery, dig or grade any soil and take any other similar action as reasonably necessary. The
rights herein reserved may be exercised by any licensee of Declarant, but shall not be deemed to
impose any obligation upon Declarant to provide or maintain or be responsible for the lapse or
temporary interruption of services except as herein and otherwise provided. Any damage to the
Property resulting from the use of the easements hereby reserved shall be promptly repaired at
the expense of the party causing such damage.
Section 2 - Landscape Easement. There shall be a fifty (50) foot wide landscaping buffer
along the Property line adjacent to U.S. Route 250 commencing at the western boundary of Lot i
and continuing on along the Property line adjacent to the eastern boundary of the Property. The
Declarant shall be responsible for initial installation and planting of trees, shrubs and other
landscaping required by the site plan.
Section 3 — Stream Buffer. The Declarant shall be responsible for establishing and
maintaining the stream buffers described in the recorded subdivision plat. The stream buffer
shall be marked with signs approved by Albemarle County delineating its boundaries. The
Declarant shall be responsible for managing the stream buffer in accordance with the Water
Protection Ordinance of Albemarle County and with a Stream Buffer Mitigation Plan, if any,
required by Albemarle County.
Section 4 — Critical Slopes. No structure, improvement or earth -disturbing activity
� o
required to build such structure or improvement, except as otherwise permitted by ordinance of �\a
9
Albemarle County, shall be located on slopes of twenty-five (25) percent or greater, as
determined by reference to either topographic quadrangle maps of the Geological Survey of the
U. S. Department of Interior with a contour interval of twenty (20) feet, or else to a source
determined by the county engineer to be of superior accuracy.
Section 5 — Road Maintenance Easement Affecting Lots 31, 32 and 33. Declarant
declares that a perpetual right-of-way and easement shall be maintained across Lots 31 and 33 for
the purpose of ingress and egress to Lot 32 by its owner and its successors, assigns, agents and
invitees, centered fifty (50) feet in width and whose location is shown as a Fifty Foot (50') Private
Access and Water Service Line Easement on the recorded subdivision plat of Foxchase ("Private
Access Road"). Declarant declares that the cost of maintaining the Private Access Road shall be
borne entirely by the owner of Lot 32, its successors and assigns, who shall have the right and
obligation to order such repairs as are necessary to keep the Private Access Road up to the
standards to which it was originally constructed. The cost of performing said repairs and
maintenance, including snow removal, shall be borne entirely by the owner of Lot 32, its
successors and assigns. For the purposes of this Section 5, "maintenance" has the same meaning
as in Article IV, Section 5(b) above. Declarant further declares that the Private Access Road is
private and shall require private maintenance by the owner, its successors and assigns as set forth
hereinabove. Any improvements to the Private Access Road shall be maintained in perpetuity by
the owner of Lot 32, its successors and assigns. The cost of construction, repair,
maintenance, upkeep or replacement of the Private Access Road, if any, shall not be borne
by the County of Albemarle, the Virginia Department of Transportation or any public
agency.
ARTICLE VI - COVENANT FOR ASSESSMENTS
Section 1 - Creation of the Lien and Personal Obligation of Assessments. The Declarant,
for each Lot owned or to be created within the Property, hereby covenants, and each Owner of
any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in any such
deed or other conveyance, is deemed to covenant and agree to pay to the Association: (1) annual
assessments or charges to be collected on a monthly basis (herein "Annual Assessments"), q
(2) special assessments for capital improvements, such assessments to be fixed, established and
I
collected from time to time as hereinafter provided (herein "Special Assessments"), and
(3) assessments for correction of noncompliance with this Declaration and the implementation of
it by the Association (herein "Correction Assessments"), all of which are collectively referred to
as "Assessments." Assessments, together with such interest thereon and costs of collection
thereof, as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon
the property against which each such assessment is made in the manner as hereinafter provided,
and subject to certain prior liens upon the Property as hereinafter provided in Section 8 of this
Article. Each Assessment, together with such interest, costs and reasonable attoiney's fees, shall
also be the personal obligation of the Owner of such property assessed at the time when the
Assessment fell due. The personal obligation shall not pass to such Owner's successors in title
unless expressly assumed by them in writing.
Section 2 - Purpose of Assessments. Annual Assessments levied by the Association shall
be used for the purpose of promoting the enjoyment, health, safety and welfare of the residents
on the Property and in particular for the maintenance, improvement, provision, repair,
enhancement and replacement of Common Areas, private roads (if any), bicycle and/or
pedestrian facilities, drainage facilities, signs, landscaping, grounds, fencing, exterior lighting,
sprinkler systems, mailboxes, services and facilities devoted to this purpose and related to the use
and enjoyment of the Common Areas and Club Facilities. Annual Assessments shall also be
used for establishing reasonable reserves for maintenance and capital expenditures.
The Association shall use such Annual and Special Assessments, to the extent such
Assessments are sufficient, for the general purposes stated above, and in addition thereto, at such
times and in such manner as determined by the Board of Directors, the Association shall use
such Assessments for:
(a) maintenance of all Common Areas and access roads, including any private
roads, and provision of snow removal upon said roads.
(b) construction, reconstruction, repair, replacement, maintenance and operation
of Club Facilities as it deems fit and proper, including provision of necessary fixtures and
personal property related thereto, and implementation of such extra charges as it deems proper
for the use of such facilities.
(c) provision, maintenance and replacement, as necessary, of such Common N o
Area signs, fencing,lighting, landscaping,and s rinkler systems, as well as bicycle and/or
� g, P Y Y
10
pedestrian facilities wherever located, as deemed appropriate by the Board of Directors, and
compliance with such maintenance bond requirements as may be imposed by governmental
agencies.
(d) general control of the entire Property, and the adoption of any reasonable
regulations consistent with the purposes stated herein for control of such and prevention of
nuisances.
(e) maintenance of liability insurance for Common Areas and Club Facilities
and payment of any and all taxes on the Common Area and Club Facilities as levied by the
appropriate jurisdictional agency.
(f) establishment and maintenance of reasonable reserves to accomplish all of
the above.
Section 3 - Basis and Maximum of Annual Assessments.
(a) The initial maximum Annual Assessment for Improved Lots (defined as a
Lot improved by a completed structure upon which a certificate of occupancy has been issued)
shall be $100.00 per month, and the initial maximum Annual Assessment for platted but
unimproved Lots shall be twenty-five percent (25%) of that for an Improved Lot. Owners shall
commence paying assessments for Lots on the first day of the month following conveyance of
the Lot by the Declarant. Annual Assessments may be increased by up to five percent (5%) per
year effective January 1 of each year (commencing January 1, 2012) without a vote of the
Members, by the Board of Directors, after due consideration of current costs and needs of the
Association. Annual Assessments for platted, unimproved Lots shall never be less than
twenty-five percent (25%) of that for Improved Lots.
(b) Any increase in the Annual Assessments requested by the Board of
Directors in excess of the five percent (5%) increase described in Section 3(a) above shall be
approved by a vote of two-thirds (2/3) of the votes cast by Members who are voting in person or
by proxy at a meeting duly called for this purpose.
(c) Not less than 1.9% of all Annual Assessments shall be deposited upon
receipt by the Board of Directors into a separate account and used exclusively for the provision,
maintenance and replacement, as necessary, of bicycle and pedestrian facilities, including
reimbursement of Albemarle County for maintaining and repairing auxiliary sidewalks as
permitted under that certain Agreement for the Maintenance of Auxiliary Sidewalks recorded on o
11
even date herewith. Establishment of the separate account as provided herein shall not prevent
the Board of Directors from using other Annual and Special Assessment funds as needed for
provision, maintenance and replacement of bicycle and pedestrian facilities. Upon Albemarle
County's request, the Board of Directors shall furnish a statement showing the fund's balance,
deposits, withdrawals and disbursements for maintenance and repair. Upon written notice by
Albemarle County stating that, in its reasonable determination, the fund is inadequate to pay for
the maintenance and repair of any auxiliary sidewalks and listing the basis for its determination,
the Board of Directors shall replenish the fund as reasonably required within thirty (30) days of
receipt of said written notice from the proceeds of either the Annual or Special Assessments.
Section 4 - Special Assessments. The Association may levy in any assessment year a
Special Assessment, applicable to that year only, for all Lots for the purpose of defraying, in
whole or in part, an unexpected or unusually large expense or anticipated expense, the cost of
any construction or reconstruction, an unexpected repair or replacement of a road, curb or other
capital improvement upon the Common Area, including the necessary fixtures and personal
property related thereto, the cost of extraordinary maintenance for bicycle and/or pedestrian
facilities, wherever located, or for any other reason found by the Board of the Directors to be in
the best interests of the Association. Any Special Assessment shall be approved by a vote of
three-quarters (3/4) of the votes cast by Members who are voting in person or by proxy at a
meeting duly called for this purpose. The Association shall provide notice to each Owner of the
Special Assessment and the date or dates upon which it shall be due and payable.
Section 5 - Uniform Rate of Assessment. Both Annual and Special Assessments shall be
fixed at a uniform rate for all Improved Lots and at a separate uniform rate for all platted but
unimproved Lots and may be collected on a monthly basis. Correction Assessments shall be
fixed on a case -by -case basis and need not be uniform.
Section 6 - Date of Commencement of Annual Assessments Due Dates. The Annual
Assessments provided for herein shall commence as to all Lots on the first day of the month
following the conveyance of a Lot to an Owner. The first Annual Assessment shall be adjusted
according to the number of months remaining in the calendar year. The Board of Directors shall
fix the amount of the Annual Assessment against each Lot by January 31 of each Annual
Assessment period. Written notice of the Annual Assessment shall be sent to every Owner an
� a
subject thereto. Unless otherwise established by the Board of Directors, the Annual Assessments -'b
gz
12
shall be due in advance in twelve (12) equal monthly installments on the first day of each month
commencing in January, unless other due dates are established by the Board of Directors, and the
Annual Assessment shall be prorated where sale is made between the annual January 1
reassessment dates. The Association shall upon written request by an Owner at any time furnish
a certificate in writing signed by an officer of the Association setting forth whether the
Assessments on a specified Lot have been paid. A reasonable charge may be made by the
Association for the issuance of these certificates. Such certificate shall be conclusive evidence
of payment of any Assessment therein stated to have been paid.
Section 7 - Effect of Non-payment of Assessments; Remedies of the Association. Any
Assessments (or monthly installments thereof) which are not paid when due shall be delinquent.
If the Assessment is not paid within thirty (30) days after the due date, it shall bear interest from
the date of delinquency until paid at eighteen percent (18%) per annum and all costs of
collection, including reasonable attorney's fees shall also be payable. The Association may
bring an action at law against the Owner personally obligated and/or foreclose the lien against
the Lot. No Owner may waive or otherwise escape liability for the Assessments provided for
herein by nonuse of the Common Area or abandonment of his Lot.
Section 8 - Lien for Pavment of Assessments and Subordination of Lien to First and
Second Mortgages. There shall be a continuing lien upon each of the Lots herein, in order to
secure the payment of the Assessments (including interest, costs of collection and reasonable
attorney's fees) provided under this Declaration, but such lien shall be subject to and subordinate
to any first and second deeds of trust placed on the Lot at any time prior to perfection of the lien
by filing in the Clerk's Office for the Circuit Court of the County of Albemarle a verified
Memorandum of Lien in accordance with § 55-516 of the Code of Virginia. Prior to filing a
Memorandum of Lien, ten (10) days' written notice of the Association's intent to file such a
Memorandum shall be given to the Owner by certified mail at his last known address. The
Association may thereafter perfect its lien by filing a Memorandum of Lien in the Clerk's Office
aforesaid prior to the expiration of six (6) months from the time the delinquent Assessments
became due and payable. After the lien is perfected, it shall have priority over all subsequent
liens and encumbrances except as set forth in § 55-516 of the Code of Virginia. No suit to
enforce any lien shall be brought after twenty-four (24) months from the time when the �z a
Memorandum of Lien was recorded as set forth in § 55-516(E). A statement from the p'
13
Association showing the balance due on any Assessment shall be prima facie proof of the current
Assessment balance due and delinquency, if any, due on a particular Lot.
Section 9 - Exempt Property. The following property subject to this Declaration shall be
exempt from the Assessments created herein: (a) all properties dedicated to and accepted by a
local utility or public authority (such as Dominion Virginia Power, VDOT, Sprint, Albemarle
County Service Authority or Rivanna Water and Sewer Authority); (b) the Common Area; and
(c) all properties (except Lots) owned by a charitable or non-profit organization exempt from
taxation by the laws of the State of Virginia. However, no land or improvements devoted to
dwelling use shall be exempt for said Assessments.
Section 10 - Correction Assessments. The Association or the ACB may impose
Correction Assessments upon any Lot or Owner in the manner set forth in Article VIII, Section 2
or Article IX.
ARTICLE VII - ARCHITECTURAL CONTROL
Section 1 - Purpose. An Architectural Control Board shall regulate the external design,
appearance, use, location and maintenance of improvements and landscaping on any Lot or the
Common Area, other than improvements constructed or landscaping done by Declarant, its
agents, contractors or subcontractors, in such as manner so as to preserve and enhance values,
maintain a harmonious relationship among structures and the natural vegetation and topography
and to preserve the general character and color, tone and architectural compatibility of the area as
originally constructed.
Section 2 - Composition of Architectural Control Board. For so long as Declarant owns
any Lot or Property, the Architectural Control Board shall consist of three persons appointed by
Declarant. Such persons may, but need not, be Members of the Association. Thereafter, the
power to appoint members of the ACB shall be transferred to the Association, which shall
appoint three of its Members to the ACB. The members of the ACB shall serve at the pleasure
of the entity that appointed them and accordingly ACB members may be replaced at any time for
any reason whatsoever. The ACB may designate in writing one or more of its members to act on
behalf of the ACB in granting or refusing written approvals called for in this Declaration. 4
0
� o
Section 3 - Required Approval to Commence Work.
14
(a) No exterior improvements, alterations, repairs, change of paint or stain
color, change of roof color, excavations, changes in grade, clearing, landscaping or other work
which in any way alters any Lot from its natural or improved state on the date when said Lot was
first conveyed in fee by Declarant shall be made or done upon the Property without the prior
written conditional approval signed by the ACB, except as otherwise provided herein. No
building, fence, wall, play equipment, pool, residence or other structures or changes to any
existing structures upon the Property shall be made until given prior written conditional approval
signed by the ACB, except as otherwise provided herein. Declarant, its successors and assigns
reserves the right to promulgate and amend from time to time architectural guidelines for the
Property and improvements located thereon, and such guidelines shall establish, define and
expressly limit those standards and specifications that shall be approved, including but not
limited to architectural style, exterior colors and all exterior finish materials, roofing material,
siding material, driveway material, landscape design and construction technique.
(b) Notwithstanding the above, Declarant shall not be required to seek or obtain
the consent or approval (either conditional or final) of the ACB or of the Association for any
work, including but not limited to improvements, changes, repairs, alterations, painting,
construction, grading or landscaping performed by Declarant or its agents, contractors and
subcontractors.
Section 4 - Procedure. None of the improvements, changes or other work described in
detail in Article VII, Section 3(a) above shall be commenced until plans and specifications
therefor showing the nature, size, kind, shape, height, materials, colors and location of the same
shall have been submitted to the ACB and conditionally approved in a writing signed by the
ACB after consideration of the details of the submission and the purpose of the ACB as set forth
herein. The Board of Directors may set a fee payable to the Association for reviews by the ACB
in conjunction with requests for conditional and final approvals. In addition to the items set forth
herein, the ACB may adopt additional procedures or standards as to the information it requires to
be submitted to it with any request for approval.
Section 5 - Conditional Approval Presumption. In the event that the ACB fails to
approve, modify or disapprove in writing a request for approval required herein within 60 days
after plans, specifications or other appropriate materials have been submitted in writing to it, theIQ
0
submitted plans and specifications shall be deemed to have been conditionally approved. The Jb
15
burden shall be upon the Owner to show the date of the submission and that the plans and
specifications were properly submitted to the ACB.
Section 6 - Conditional and Final Approval. Preconstruction approvals granted by the
ACB herein shall be deemed to be conditional approvals. They may become final approvals
upon the ACB's inspection of the actual completion of the changes or improvements or repairs
and finding them to be as set forth in the plans and specifications submitted to it. In the event
that the actual completed changes, improvements or repairs do not, in the judgment of the ACB,
conform to the plans and specifications approved by it, then the ACB's approval, whether given
in writing or by presumption, may be withdrawn. It shall be incumbent upon the Owner to notify
the ACB in writing within thirty (30) days after the completion of work that he requests final
approval. The ACB shall then have 30 days to inspect and grant or refuse final approval in
writing. If final approval is refused, the Owner shall make changes and resubmit until final
approval is obtained.
Section 7 - Final Approval Presumption. In the event that appropriate equitable action,
together with the filing of a lis ep ndens, has not been commenced within one hundred eighty
(180) days after the completion of any construction, improvements or alterations, it shall be
conclusively presumed that such construction, improvements or alterations have received final
approval by the ACB.
Section 8 - No Approval. Should an Owner commence any work which requires ACB
approval without its conditional approval or complete any work without seeking ACB final
approval within thirty (30) days of completion, the ACB, the Association or any Member may
take appropriate legal or equitable action and may cause a lis ep ndens to be filed against such
Owner's Lot, except as set forth herein. Furthermore, the ACB or the Association has the right
(but not the obligation) to correct any violation and impose Correction Assessments as set forth
in Article VIII, Section 2.
16
ARTICLE VIII - USE RESTRICTIONS
Section 1 - Limitation on Use of Lots and Common Area. The Lots and Common Area
shall be occupied and used as follows:
(a) Residential Use. No Lot shall be used for any purpose other than as a single
family private residence. Specifically, no Lot shall be used for the conduct of any commercial or
professional enterprise. For the purposes of this Declaration, the term "single family" shall
mean: (1) an individual; or (ii) two or more persons related by blood, marriage, adoption or
guardianship living together as a single housekeeping unit; or (iii) no more than three persons
who are not all related by blood, marriage, adoption or guardianship living together as a single
housekeeping unit.
(b) Common Area Use. There shall be no obstruction of the Common Area.
Nothing shall be stored in the Common Area without the prior consent of the Association.
Nothing shall be altered or constructed in or removed from the Common Area, except upon the
written consent of the Association. No waste shall be permitted in the Common Area.
Notwithstanding the above, Declarant and its contractors and subcontractors may use, obstruct or
store personal property, materials or vehicles on the Common Area during such time as they may
be engaged in construction on the Property.
(c) Nuisance. No noxious, boisterous or offensive activity shall be carried on
upon any Lot or in the Common Area, nor shall anything be done thereon which may be or may
become an annoyance or nuisance to any other Owner or a fire hazard or safety hazard to any
other Owner or to any improvement. The Board of Directors shall have the authority to
determine in writing whether any activity conducted upon any Lot constitutes a nuisance upon
the submission to it of a complaint in writing by any Owner regarding such activity. The
Association is given full authority and power to abate any nuisance found to be existing any
giving the Owner written notice specifying the nature of the nuisance provided that the Owner
has failed to abate said nuisance within a reasonable time after notice.
(d) Liability Insurance. Nothing shall be done or kept in any Lot or the
Common Area which shall increase the rate of insurance on the Common Area, without the prior
written consent of the Association. No Owner shall permit anything to be done or kept in his Lot o
17
or in the Common Area which shall result in the cancellation of insurance on any Lot or any part
of the Common Area, or which would be in violation of any law.
(e) Sig s. No sign of any kind (including "For Sale" signs) shall be displayed
to the public view on or from any Lot, the Common Area, or on or from within any structure on
any Lot, except those signs used by the Association or Declarant as "For Sale" signs, "Sold"
signs, Lot designation and direction signs, site signs, subdivision entrance signs, street signs and
traffic control signs.
(f) Pets. No animals, livestock or poultry of any kind shall be raised, bred, or
kept in any Lot or in the Common Area, except that dogs, cats or other domesticated household
pets (collectively "Household Pets") may be kept on Lots, subject to rules and regulations
adopted by the Association. No Household Pet shall be permitted off the Lot occupied by such
Household Pet's Owner except on a leash. Owners of Household Pets shall promptly clean up
and properly dispose of said pet's feces wherever deposited on the Property. No pit bull dogs or
dogs having any percentage of pit bull breed in them shall be permitted upon any Lot or
Common Area.
(g) Fences. No fence may be erected upon any Lot in the front or side yards. If
approved by the ACB, fences may be erected in the back yards of Lots provided that no fence
shall extend closer to a street or the Public Roads than the rear corners of the dwelling on the
Lot. In cases of hardship, this restriction on front and/or side yard fences may be waived by a
written waiver signed by each member of the ACB. The "front" shall be that side of the
dwelling on a Lot facing, or most nearly facing, a Public Road. Should a question about the
location of the front, side or rear yard arise, it shall be conclusively determined by the Board of
Directors as set forth in Article VI, Section 2(c).
(h) Trash. Trash cans, barrels and containers shall be maintained within ACB-
approved, screened bins concealed from view from the Public Roads, adjacent Lots and private
roads, if any. Trash pick-up shall be at Owner's expense and shall take place only at such
locations as are approved or designated by the Association. If the Association approves
street -side pick-up, no Owner shall place the receptacles at the street earlier than six hours before
pick-up and each Owner shall remove the receptacles within six hours after pick-up.
(i) Antennas. No exterior or roof antennas of any kind or description may be
erected or maintained on any Lot or Common Area. No satellite dishes exceeding two (2) feet in
18
diameter may be erected or maintained on any Lot or Common Area. No transmitting or
receiving equipment which interferes with television, radio or other communications reception of
other Owners shall be used or permitted upon any Lot.
0) Trees. Any dead or diseased trees on any Lot may be cut down or removed
without ACB permission. No living tree with a diameter greater than two inches measured at
three feet from the ground upon any Lot may be cut down or removed after the conveyance of
the Lot from the Declarant without the prior express written permission signed by the ACB. A
landscape plan shall be submitted with the plans and specifications for cutting, such plan to show
existing trees and shrubs and to clearly indicate those to be removed. No trees on Common Area
may be cut down or removed except by Declarant, unless the prior express written approval of
the ACB is secured. Regardless of size, trees planted by Declarant or its agents, contractors or
subcontractors of either in any Albemarle County designated buffer areas or landscape easements
may not be cut down or removed without prior express written permission signed by the ACB.
Any such action in the designated buffer areas shall comply with Albemarle County ordinances
and the conditions governing the approved site plan for the Property regardless of the Foxchase
ACB approval.
(k) Clothes Drying. No clothing, laundry or wash shall be aired or dried on any
portion of a Lot exposed to view from any other Lot, the Common Area, any public road or
Private Road.
(1) Inoperable Vehicles. No inoperable vehicle shall remain on the Property for
more than 48 hours. The Association may conclusively define what is an inoperable motor
vehicle.
(m) Vehicles. Vehicles of any kind or description which do not have a current
license and a valid inspection sticker shall not be kept or maintained on any Lot, Public Roads,
Common Area or private roads, if any. The maximum number of vehicles which may be
maintained or stored on any Lot (excluding those stored in garages) shall be three (3).
(n) Recreational and Other Vehicles. No mobile home, trailer, camper, bus,
recreational vehicle, dune buggy, tow truck, tractor, backhoe, boat, trailer or truck over 3/4 ton
rated capacity shall be placed, stored or parked on any Lot, Public Road, private road or
Common Area in the Property or adjacent thereto, either temporarily or permanently.
Additionally, the Association shall have the power to regulate or prohibit the placement, storage
19
or parking, whether temporary or permanent, within the Property of any vehicle which in the
opinion of the majority of the Board of Directors detracts from the general aesthetic character
and harmony of Foxchase by reason of. (i) the general disrepair or dilapidated state of such
vehicle, (ii) the types or quantities of materials or items stored on or within such vehicle, or
(iii) the unusual or tasteless exterior appearance of such vehicle. The provisions of this section
shall in no way limit or proscribe the rights of Declarant and its agents, contractors and
subcontractors to park vehicles related to construction activities upon the Property.
(o) Temporary Structures. No structure of temporary character, tent or trailer
shall be used on any Lot or the Common Area at any time as a residence.
(p) Toys, Bicycles, Equipment. All toys, bicycles, tricycles, lawn and garden
implements and machines and the like shall be kept and stored out of sight from other Lots,
Public Roads or private roads, if any, from sunset to sunrise each day.
(q) Drainage. No Owner shall interfere unreasonably with the natural drainage
of surface water from his Lot to the detriment of any other Lot.
(r) Firewood. No more than a cord of firewood may be stored at any time on
any Lot. All woodpiles shall be in the rear of the Lot no closer than ten (10) feet to any structure
used as a residence and either uncovered or covered with tarpaulins of dark (green or black)
color, properly secured.
(s) Woodstoves. No woodstove (including free standing and fireplace insert)
1-1
shall be installed, maintained or used on any Lot.
(t) Mailboxes. No mailbox shall be erected or maintained nor shall the exterior
appearance of any mailbox be altered on or adjacent to any Lot until the proposed mailbox
design, color and location have been approved in writing signed by the ACB. The provisions of
this section shall not apply to mailboxes erected by Declarant, its agents, contractors or
subcontractors.
(u) Storage Tanks. No underground storage tanks shall be placed in any Lot or
Common Area.
(v) Exterior Appearance. Every Owner shall be responsible for maintaining a
good exterior appearance of his Lot and improvements thereto, including, but not limited to,
reasonable maintenance of lawn and shrubbery in those areas not maintained by the Association.
To comply with this mandate, each Owner shall at least maintain and mow the grass in the rear o°
20
yard of his Lot so that it does not exceed six (6) inches in length. Each Owner shall maintain all
decks, porches and patios in a neat and orderly fashion and shall not use them for storage.
Section 2 - Correction Assessments and Remedies. In the event that any Owner shall
violate or fail to comply with the Architectural Control provisions set forth in Article VII or
violate or fail to comply with any one or more of the Use Restrictions set forth in Section 1 of
this Article VIII (herein collectively the "Violations"), such Owner may be liable for Correction
Assessments provided that such Owner shall have been sent prior written notification by the
ACB or Association or their agents, employees, or attorneys (hand delivered or sent by registered
or certified mail to the Owner at the Lot address or the Owner's last known address on file with
the Association) of such Violation(s). In the event such Violation(s) is not stopped, halted or
corrected (within the time set forth as set forth in such written notification) and continues, then,
without further notice, the ACB or Association (or their agents, contractors or employees) are
hereby irrevocably granted permission to come upon the Lot of said Owner and may cause such
Violation(s) to be fully or partially stopped, halted or corrected, without liability for so doing,
and may cause any and all costs incurred (including interest and attorneys' fees) in connection
therewith to be charged as a Correction Assessment to such Owner. The ACB or the Association
have the right (but not the obligation) to correct the Violation(s) or in their discretion to partially
correct such Violation(s). Correction Assessments may be collected as other Assessments in any
of the manners specified in Article VI hereof, including suit at law or in equity or by filing a
notice of assessment lien as herein provided. The remedy herein provided shall be in addition to
any other remedy provided or allowed by law or in equity and shall not be deemed an exclusive
remedy. Election of one remedy (whether herein specified or allowed or otherwise) shall not act
as a bar to the subsequent or concurrent use of other available remedies.
ARTICLE IX - CASUALTY DAMAGE TO LOTS
Section 1 - Obligation to Rebuild. In the event that any structure, or any portion thereof,
on any Lot shall be damaged or destroyed by fire, windstorm, or other casualty, the Owner of
such Lot shall be responsible for and shall bear the cost of the rebuilding, reconstruction and/or
restoration of such structure to the same standards, condition, appearance and specifications, 'Sr o
o
including color and grade of wood, as existed prior to its damage or destruction. The rebuilding,
21
reconstruction and/or restoration of any damaged and/or destroyed structure shall be commenced
within sixty (60) days of such damage and/or destruction, and once commenced shall be
diligently pursued to completion, and in any case shall be completed within six (6) months from
date of commencement thereof. In the event that such Owner shall fail to so reconstruct, rebuild
and/or restore such damaged or destroyed structure for which he or it is responsible in a manner
satisfactory to the Board of Directors, the Association after thirty (30) days prior written notice
in accordance with Article X, Section 3 to such Owner and upon affirmative vote of a majority of
the Board of Directors shall have the right (but not the obligation) to reconstruct, rebuild and/or
restore such damaged or destroyed structure to the same standards, condition, appearance and
specifications as existed prior to its damage or destruction, and the cost thereof (including
interest and attorney's fees) shall be assessed against the Owner of such structure as a Correction
Assessment.
Section 2 - Insurance. The Owner of each improved Lot or Lot on which a dwelling is
under construction shall maintain in full force and effect an "all risk" hazard or homeowners
insurance policy naming the Association as a co-insured as its interest may appear insuring the
improvements on said Owner's Lot against loss or damage due to fire, explosion, windstorm,
casualty or other insurable cause to the full replacement cost of such improvements. Each
Owner shall provide and maintain with the Association a valid certificate of such insurance. In
the event that any Owner fails to maintain such insurance on the improvements on their Lot or
fails to provide the Association with such a certificate, the Association, after five days written
notice, shall have the right, but not the obligation, to procure such insurance in the name of the
Owner and assess the direct charges therefor together with an administrative fee of $250.00
against the Owner as a Correction Assessment.
ARTICLE X - GENERAL PROVISIONS
Section 1 - Enforcement. The Association shall have the right to enforce, by any
proceeding at law or in equity, all covenants, conditions, restrictions, reservations, liens and
charges now or hereafter imposed by the provisions of this Declaration or Supplementary
Declaration and may seek damages for violations of such provisions. Before the Association o
seeks injunctive relief against any Owner, the Owner shall be given the opportunity for a hearing
22
before the Board of Directors. Fourteen (14) days prior written notice in accordance with
Article X, Section 3 of a hearing shall be given to the Owner by hand delivery or certified mail
return receipt requested. An Owner may also seek to enforce all covenants, etc. against another
Owner. Failure by the Association or by any Owner to enforce any covenant, condition,
restriction, lien or charge herein contained shall in no event be deemed a waiver of the right to do
so thereafter.
Section 2 - Entry for Repair. The Association or its agents may enter any Lot or
improvements thereon when necessary in connection with any maintenance, landscaping or
construction for which the Association is responsible. Such entry shall be made with as little
inconvenience to the Owner as practical, and any damage caused thereby shall be repaired by the
Association out of common expense funds of the Association.
Section 3 - Notices. Unless otherwise specifically provided, any notice required by this
Declaration to be sent by the Board of Directors or the Association to any Owner shall be
deemed given if either hand delivered or mailed by first class mail to the Lot address or to the
Owner's last known address on file with the Association. The date of hand delivery or the date
of mailing shall be deemed to be the date notice was given. Notice to any one of two or more
co -owners shall be deemed to constitute notice to all co -owners.
Section 4 - Fees and Costs. The Association, in seeking enforcement of the provisions of
this Declaration or damages due to violation thereof, shall be awarded court costs and reasonable
attorney's fees, if it substantially prevails.
Section 5 - Severability. Invalidation of any one or more of the provisions of this
Declaration by judgment or court order shall in no way affect any other provisions which shall
remain in full force and effect.
Section 6 - Prohibited Discrimination. The Declarant and every Owner agrees that no
transfer of any interest or offer to acquire any interest in any Lot shall be refused by Declarant or
Owner or agent thereof to any person because of race, color, religion, sex or national origin, nor
shall Declarant or any Owner make unavailable or deny the use or any interest in the Property to
any person because of race, color, religion, sex or national origin. No provision of this
Declaration shall be used to discriminate against any person by reason of such person's race,
color, religion, sex or national origin and any such use is hereby declared illegal, void, and
unenforceable and is specifically disclaimed.
23
Section 7 - Amendment. The covenants, conditions, restrictions and reservations of this
Declaration may be modified or amended during the first twenty (20) year period by an
instrument signed by Declarant after being approved by more than two-thirds (2/3) of the votes
cast by Members who are voting in person or by proxy at a meeting duly called for this purpose.
After said period this Declaration may only be modified or amended by an instrument signed by
not less than two-thirds (2/3) of the Lot Owners. Any modification or amendment shall be
properly recorded.
Section 8 - Duration. The covenants, conditions, restrictions and reservations of this
Declaration shall run with and bind the Property, and shall inure to the benefit of and be
enforceable by the Association, or the Owner of any Lot subject to this Declaration, their
respective legal representatives, heirs, successors, and assigns, for a term of twenty (20) years
from the date this Declaration is recorded, after which time said Declaration shall be
automatically extended in perpetuity for successive periods of ten (10) years unless modified,
amended or rescinded.
WITNESS the following signature and seal:
250 WEST HOLDINGS, LLC
By
Its Manager
STATE OF VIRGINIA
CITY/EBH'�iT`OF C �0.(�O'E (�,S U i e . , to -wit:
The foregoing instrument was acknowledged before me this 14� day of
2003 by �{ l,tN (� iG • (�(`�U q as
of 250 West Holdings, LLC.
My commission expires: J Lt A� J ( ALL 5
— �Jldti� P.
Notary Public
24
SCHEDULE A
Property Description
All that certain tract or parcel of land situated in the Whitehall Magisterial District of
Albemarle County, Virginia on the north side of U.S. Route 250 containing a total of 92.318
acres more or less (including Common Areas, Public Roads and proposed lots), the perimeter of
which tract is shown on plat of Roudabush, Gale & Associates, Inc., dated October 3, 2002,
which plat is recorded in the Clerk's Office of the Circuit Court of the aforesaid County in Deed
Book 2313, page 209, and being a portion of the property conveyed to 250 West Holdings, LLC,
by deed dated as of January 31, 2002 from Highlands West, L.P., a Virginia Limited Partnership, of
record in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book
2154, page 589, and also by deed dated February 1, 2002 from Phillip W. Unger, Trustee under
Declaration of Trust dated March 20, 1995 as amended and restated on February 1, 2000 and Phillip
W. Unger, Successor Trustee under Declaration of Trust dated March 20, 1995, of record in said
Clerk's Office in Deed Book 2154, page 586.
25