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HomeMy WebLinkAboutSUB200400379 Correspondence 2005-02-01Tax Map Parcel: 090AO -00 -00 -00100 and 090AO-00-OB-0 I OFO OAK HILL Declaration of Restrictions, Covenants, Conditions and Easements THIS DECLARATION made this day of February, 2005, by Southern Property LLC, a Virginia Limited Liability Company, d/b /a Southern Development hereinafter referred to as the "Declarant." WITNESSETH: WHEREAS, the Declarant is the owner of certain real property located in the Albemarle County in the Oak Hill Subdivision, Section 3, more particularly described in Section 2.01 below; WHEREAS, the Declarant desires to provide for the protection and enhancement of the value and desirability of Oak Hill by subjecting the real property described in Section 2.01 below to the restrictions hereinafter set forth, each and all of which is and are for the benefit of said property and the owners thereof. NOW, THEREFORE, the Declarant declares that the real property described in Section 2.01 below shall be held, transferred, sold, conveyed, and occupied subject to the covenants, restrictions, conditions, and easements hereinafter set forth. The provisions set forth herein shall run with the land and shall be binding upon any and all parties who have or shall acquire any right, title, and/or interest in all or any part of the real property subject to this Declaration, 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 1.01 "Oak Hill" shall mean and refer to the subdivision wherein lies the real property described in Section 2.01 which is hereby subjected to this Declaration, together with such other real property as may hereafter, from time to time, be added thereto. Section 1.02 "Declaration" shall mean and refer to the covenants, restrictions, easements and conditions, and all other provisions herein set forth in this entire document, as same may from time to time, be amended or supplemented. Section 1.03 "Declarant" shall mean and refer to Southern Property, LLC, d/b /a Southern Development, and any assignee of them as Declarants with regard to real property in the Oak Hill Subdivision, Section 3. Section 1.04 "Lot" shall mean and refer to any parcel of land designated as a "Lot" upon any recorded plat of any portion of Oak Hill, Section 3. Section 1.05 "Roads" shall mean and refer to Maymont Drive and Maymont Court, designated for public use, as shown and described on the plat referred to in Section 2.01 hereof. Section 1.06 "Owner" shall mean and refer to the record owner, whether one or more persons or entitles, including the Declarant, of the fee simple title to any Lot, including contract sellers, but excluding those that have such interest merely as security for the performance of an obligation. In the case where a Lot is held by one or more persons for life with the remainder to another or others, the term "Owner" shall mean and refer only to such life tenant or tenants until such time as the remainderman or remaindermen shall come into use, possession or enjoyment of such Lot. Section 1.07 "Association" shall mean and refer to the Oak Hill Owners Association, a non - profit association, its successors and assigns. Section 1.08 "Member" shall mean and refer to every person or entity that holds membership in the Association. Section 1.09 "Common Areas" shall mean and refer to those tracts or areas of land with any improvements thereon shown on the subdivision plat as "Open Space" which are deeded to the Association and designated in said deed as "Common Areas ". The term "Common Areas" shall also include any personal property acquired or leased by the Association which said property is designated "Common Area ". All Common Areas are to be devoted and intended for the common use and enjoyment of the Association, their guests, and visiting members of the general pubic (to the extent permitted by the Board of Directors of the Association) subject to the fees schedules and operating rules adopted by the Association. Section 1.10 "Road for Future Dedication" shall mean and refer to that tract or area of land, with any improvements thereon, shown on the subdivision plat at the southwest end of Maymont Court, and described as "Future Dedication Upon Demand By The County" (hereinafter, "Future Road "). The Future Road shall be deeded to the Association, if it has not been accepted into the Virginia State Highway System prior to the creation of the Association. The Association holds the Future Road, not as recreational Open Space or Common Area, but for the benefit of the "Joint Driveway Access Easement" of the Owners of Lots 12 and 13, and for the future dedication into the Virginia State Highway System. Section 1.11 "Supplementary Declaration" shall mean and refer to any declaration of restrictions, covenants, conditions, and easements which may be executed and recorded by the Declarant which extends the provisions of this Declaration to additional real property and contains such complementary or modifying provisions for such additional real property as are not inconsistent with the concept of this Declaration. ARTICLE II. PROPERTY SUBJECT TO DECLARATION Section 2.01 Existing Property. The real property which at this time is and shall be held, transferred, sold, conveyed, and occupied subject to this Declaration is all those certain tracts or parcels of land, situate in Oak Hill, in Albemarle County, Virginia, more particularly described as follows: Lots 1 -14, Section 3, Oak Hill Subdivision, Albemarle County, Virginia as shown on plat of Rivanna Engineering & Surveying, P.L.C., dated May 21, 2004 and revised June 25, 2004 attached hereto and recorded herewith. 2 WHEREAS, Declarant will develop the said property ( "Property ") residential subdivision, pursuant to the provision of the Albemarle County Zoning and Subdivision Ordinances; and, WHEREAS, Declarant will convey the said properties, subject to certain protective covenants, conditions, restrictions, reservations, easements, liens and charges as hereinafter set forth. ARTICLE III. ARCHITECTURAL CONTROL Statement of Purpose The primary goal of the architectural controls for Oak Hill is to preserve the existing quality of the vegetation, trees, and views, and to create a structure for the establishment and enforcement of regulations for the external design and appearance of all improvements on the properties subject to these covenants. Section 3.01 Plans and Specifications Generally. (a) No building, fence, wall or other structure shall be commenced, erected or maintained upon the Property, nor shall any exterior addition to or change or alteration (including color) therein be made until the plans and specifications showing the nature, size, kind, shape, height, materials, colors and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by an architectural committee composed of three (3) or more representatives appointed by the Declarant (the "Architectural Review Board"). Until the date that Declarant no longer owns any lots, the Architectural Review Board shall consist of Frank Ballif, Charlie Armstrong, and Rob Duncan. The remaining members of the Board may fill any vacancy on the Board. When the Declarant no longer owns any lots, the Lot Owners may elect the Board. A majority of the Board shall be required to act. In addition to the items hereinafter required to be shown on the said plans and specifications, and such items and details as may be required by the Board, all attachments to a dwelling shall be shown and described. In the event said Board fails to approve or disapprove such design and location within fourteen (14) days after said plans and specifications have been submitted to it, such plans and specifications shall be deemed to have been approved. (b) Every building, fence, wall, or other structure, including additions or alterations thereto, constructed by Declarant or Declarant's assignees, shall be exempt from the provisions of 3.01 hereof. Section 3.02 Fences. No fence may be erected upon any Lot except behind a line describing the front margin of a dwelling unit, unless this restriction shall be waived by the Board. The "front" shall be that side of a dwelling facing, or most nearly facing, a platted street, road or cul -de -sac. Section 3.03 Landscape Design: Maintenance of Trees. No living tree with a diameter greater than eight inches upon any Lot may be cut down without the prior express written permission of the Board. A landscape plan shall be submitted with the Architectural Review Board, with the plans and specifications referred to above, such plan to show existing trees and shrubs and to clearly indicate those to be removed. Improvements should be sited to take advantage of the natural environment, utilizing existing vegetation wherever possible. The landscape plan must show the approximate location of proposed structures, driveways, and 3 parking areas, and must show in reasonable detail all materials proposed to be used on the property. ARTICLE IV. ROADS, EASEMENTS Section 4.01. Dedication to Public Use. The Declarant shall have the right and power and does hereby dedicate to public use all Roads as described in Section 1.05, except for the Future Road described in Sections 4.01.02 and 1.1.10, so that they may be accepted into the Virginia State Highway System and thereby be publicly maintained. Section 4.01.01. Dedication to Subdivision Owners Use: (a) Common area will be constructed by the Developer or his assigns within the Oak Hill Subdivision which will be available for appropriate recreational use by any Owner of a Lot, and regarding which the Declarant reserves the right to establish and enforce any reasonable restrictions upon the use of such an area as well as to deem what recreational activities shall be considered appropriate for the area. (b) The "temporary turn- around easement" as described and shown on the plat referred to in section 2.01 hereof, required by a public body to be dedicated in order for the Roads to be accepted into the Virginia State Highway System. Section 4.01.02. Joint Driveway Access Easement: (a) A temporary, non - exclusive Joint Driveway Access Easement is hereby granted and conveyed to the owners of lots 12 and 13, over and across the Future Road, as shown on the aforesaid Plat. The maintenance cost of the Joint Driveway Access Easement shall be borne equally by each of the two lot owners from the intersection of Maymont Drive and Maymont Court to the southwest end of the Future Road on which lots 12 and 13 front on said Subdivision Plat, with one -half of the cost to be paid by each lot owner for the length of that easement that is jointly used and the balance being paid by the owner of lot 13. (b) Maintenance of the Joint Driveway Access Easement road shall include maintenance of the road, curb, gutter, drainage facilities, utilities or other road improvements, and the removal of snow, water, or debris so as to keep the road reasonably open for usage. (c) At such time as the owners of lot 12 and 13 mutually determine that the said Joint Driveway Access Easement is in need of maintenance or repair, said owners shall have the right to order such repairs as are necessary in order to keep the Joint Driveway Access Easement up to the same standards as that to which the Joint Driveway Access Easement was originally built, and the cost of making such repairs and the maintenance cost, including snow removal, shall be borne by the owners of the two lots as set forth in this section. Agreement to maintain or repair shall be in writing between the owners of lots 12 and 13, before initiating maintenance or repair of the Joint Driveway Access Easement. (d) In the event that any lot owner fails to pay his proportionate share within said thirty (30) days of receipt of billing for agreed upon repairs or maintenance, then the other lot owner or individuals appointed the lot owner may prepare a statement of such delinquency in recordable form, and the recordation of said statement shall in itself create a lien against the lot whose owner has not contributed his proportionate share. Said lien once recorded shall have priority as to any subsequent liens recorded against the property and shall further be a personal liability on the owner of said lot. The notice to have maintenance and/or repair work done does not apply to snow removal. (e) The Declarant, or the Association after the Declarant no longer owns any lots in Oak Creek, reserves the right to dedicate the Future Road to public use and acceptance into the Virginia State Highway System. Upon acceptance into the Virginia State Highway System, the El Joint Driveway Access Easement granted herein for the benefit of lots 12 and 13 shall hereby terminate and the owners of lots 12 and 13 shall not be responsible for any further road maintenance along the Joint Driveway Access Easement or the Future Road. Section 4.01.03. Responsibility for Maintenance of the Private Road. Prior to the proposed acceptance into the Virginia State Highway System, the cost of construction, maintenance, upkeep or replacement of all joint access easements located within the established easements in Oak Hill Subdivision shall be the SOLE RESPONSIBILITY OF THE OWNERS as provided for herein. No such cost will be borne by Albemarle County, the Commonwealth of Virginia or any other public agency, prior to acceptance into the Virginia State Highway System. Section 4.02. Regulation of Traffic and Parking. Until such time as the Roads are accepted for public maintenance, the Declarant shall have the right and power to place any reasonable restrictions upon the use of the Roads, including the establishment of speed limits and regulation of parking along the Roads. Section 4.03. Maintenance. The initial construction of the Roads shall be paid for by and shall be completed by the Declarant. Thereafter and until such time as the Roads may be accepted into the Virginia State Highway System, the necessary money for the future repair, maintenance, improvement, enhancement or replacement ( "Maintenance ") of the Roads will not be borne by any Owner, but, rather, shall be provided by the Declarant, except as provided for in Section 4.01.02. Section 4.04. Damage By or Negligence of Owner or Declarant. Notwithstanding any other provision of this Declaration, if the Declarant or any Owner through his own negligence or through his construction, development or other unusual activity on his Property or Lot causes a Road to be damaged, then he shall be solely and exclusively responsible for the repair of such damage without the benefit of contribution from the other Owners. Section 4.05. Temporary Construction Easements. The Declarant reserves unto himself, his successors and assigns, temporary, alienable easements within and across those portions of the Lots lying within fifty feet (50') of the centerline of the Roads for the construction and grading of the Roads, and the cutting, filling and grading of slopes and installation of drainage facilities. This temporary construction easement shall terminate upon completion of the Roads, and their acceptance into the State Highway System. Said Construction Easement shall include the Future Road. The Roads, the Future Road or any portions thereof, are release from this temporary access easement upon acceptance of each section into the Virginia State Highway System. Nothing herein shall be construed to impose an obligation on the Declarant to upgrade the Future Road in anticipation of dedication. Section 4.06. Utility, Drainage, Sight Distance, Etc. Easements. (a) Generally. The Declarant reserves unto himself, his successors and assigns, perpetual and alienable easements and right of ways above ground and underground twenty feet (20') in width inside and along the front and rear Lot lines and ten feet (10') in width along the side Lot lines of all Lots subject to this Declaration: (i) to construct, maintain, inspect, replace and repair electric and telephone poles, wires, cables, conduits, pipes, and other suitable equipment for the conveyance of telephone, electricity, cable, communications and other utilities and public conveniences; (ii) for 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; (iii) to create, provide and maintain any sight distances and or slopes required by the Virginia Department of Transportation for use and/or acceptance for public maintenance of the Roads; and (iv) to meet any other condition or requirement of any governmental authority related to the subdivision and/or development of Oak Hill and/or the use of and/or acceptance of the Roads for public maintenance. In connection with the acceptance of the Roads for public maintenance, Declarant further reserves unto itself, its successors and assigns, a perpetual and alienable easement and right -of -way above ground and underground twenty feet (20') in width along all existing natural drainage swales and drainage ways within all Lots for construction and maintenance of storm and surface water drainage purposes as necessary. (b) Scope of Easements. The easements provided for in this Section shall include the right to cut any trees, brush and shrubbery, make any grading of soil, and take other similar action reasonably necessary to provide economical and safe utility installation and drainage facilities. No new trees, shrubs, fences, buildings, overhangs or other improvements or obstructions shall be placed within the easements provided for in this Section. The rights in this Section may be exercised by any licensee of the Declarant, but shall not be deemed to impose any obligation upon the Declarant to provide or maintain any utility or drainage services. Any damage resulting from the use of the easements hereby reserved shall be promptly rectified at the expense of the entity responsible for such damage. (c) Dedication to Public Use. The Declarant shall have the right and power to dedicate to public use any drainage easement(s) reserved by the Declarant in this Section 4.06 which are required by a public body to be dedicated to provide storm and surface water drainage for the Roads in order to be accepted into the Virginia State Highway System. ARTICLE V. USE RESTRICTIONS Section 5.01 Limitation on Use of Lots. The lots shall be occupied and used as follows: (a) No owner shall occupy or use his Lot, or permit the same or any part thereof to be occupied or used for any purpose other than as a private residence for the Owner and the Owner's family or the Owner's Lessees or guests. (b) No noxious or offensive activity shall be carried on in any Lot, nor shall anything be done therein which may be or become any annoyance or nuisance to any other Owner. (c) No unlicensed vehicles of any kind or description (including boats, automobiles, trucks, recreational vehicles, etc.) shall be kept or maintained or stored on any platted street, Future Road, Joint Driveway Access Easement or cul -de -sac or on any Lot, and are permitted only in enclosed garages. (d) No trucks larger than one (1) ton pickup trucks shall be principally garaged or kept on any street within Oak Hill, or upon any Lot. (e) Every Owner shall be responsible for maintaining a good exterior appearance of his or her Lot and improvements thereto including, but not limited to, exterior painting and staining, and reasonable maintenance of lawn and property. Section 5.02 Charges and Liens for Compliance Herewith. In the event that any Owner shall violate any one or more of the Use Restrictions set forth in this Article V, or in the event such Owner shall have been notified by any other Owner (in writing sent by registered or certified mail to the Owner's residence address) of such violation, and in the event such violation is not stopped, halted or corrected (as set forth in such written notification) and continues, then, without further notice, such other Owner may cause such violation to be stopped, halted or corrected, without liability for so doing, and may cause any and all costs incurred (including attorneys' fees) in connection therewith to be charged as an assessment to such violating Owner. Such assessments may be collected in any lawful manner, including suit at law or in equity or by filing a notice of assessment lien. 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 a 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 VI GENERAL PROVISIONS Section 6.01 Enforcement. The Declarant, or an Owner, shall have the rights to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Declarant or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Section 6.02 Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 6.03 Easements. Declarant hereby reserves for itself, its successors and assigns, (a) ten foot (10') easement along each side of every property line of every Lot, such easement for electric, cable television, telephone, water, gas and other utilities; and (b) the right to grant easements for any lawful purpose over and across each and every Lot, so long as the course of such easement does not cross any buildings on any such Lot, such grant(s) to be in writing and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. Section 6.04 Duration and Amendment. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Declarant, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of twenty -five (25) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years. The covenants and restrictions of this Declaration may be amended by an instrument signed by not less than two - thirds (2/3) of the Lot Owners. Any amendment must be properly recorded. ARTICLE VII ASSOCIATION Section 7.01. Association. Every Owner of a Lot within Oak Hills, Section 3 shall be a member of the Association. Section 7.02. Voting Rights. Each Member of the Association shall be entitled to one (1) vote for each Lot owned by said 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 and the vote for such Lot shall be exercised as they among themselves determine but in no event shall more than one vote be cast with respect to any Lot. Section 7.03. Duties. Except as set for in Section 4.05, after the sale of the last Lot owned by the Declarant, the Association shall become the successor to the Declarant under this Declaration for all purposes including architectural control, the enforcement of all covenants, restrictions and conditions, and the granting of necessary and appropriate utility and drainage 7 easements. Prior to the sale of all Lots by the Declarant, the Declarant shall have the right in its sole discretion to transfer any one or more (including all) of its rights, privileges and duties under this Declaration to the Association, which transfer shall be evidenced by an instrument executed by the Declarant and recorded in the appropriate Clerk's Office. Section 7.04. Operation of the Association. The Association shall be governed by and operated in accordance with the provisions of this Declaration and the By -Laws of the Oak Hills Owners Association to be determined at a later date. ARTICLE VIII COMMON AREAS Section 8.01. Common Areas shall mean and refer to those tracts or areas of land with any improvements thereon shown as "Open Space" on the subdivision plat of Section 3 which are deeded to the Association and designated in said deed as "Common Areas ". The term "Common Areas" shall also include any personal property acquired or leased by the Association which said property is designated "Common Area ". "Open Space" and "Common Area" shall not include the Future Road or the Joint Driveway Access Easement. All Common Areas are to be devoted and intended for the common use and enjoyment of the Association, their guests, and visiting members of the general public (to the extent permitted by the Board of Directors of the Association) subject to the fees schedules and operating rules adopted by the Association Section 8.02. The Association shall obtain and maintain in force policies of insurance meeting the following minimum standards: (a) All buildings, improvements, and all personal property on and used with the common area and facilities shall be insured in an amount equal to 100% insurable replacement value as determined by the Board of Directors with the assistance of its insurance company. Such policy shall include coverage against fire and other hazards covered by endorsements for extended coverage for vandalism, and malicious mischief. (b) Public liability insurance shall be secured by the Association with limits of liability of no less than One Million Dollars ($1,000,000.00) per occurrence which shall insure the Association, its directors, and its officers, and which shall include an endorsement to cover liability of the owners as a group to a single owner. (c) No provision of the Declaration or applicable laws authorizing or empowering the Declarant or the Association to do any act or exercise any right shall be construed as obligating the Declarant or the Association to do any act or to exercise any right which it is not expressly authorized to do or exercise by this Declaration. ARTICLE IX. PROPERTY RIGHTS IN COMMON AREAS Section 9.01. Members' Easements of Enjoyment in Common Areas. Subject to the provisions of this Declaration, the rules and regulations of the Association, and any fees or charges established by the Association, every member, and every guest of such member, shall have a right of easement of enjoyment in and to the common areas and such easement shall be appurtenant to and shall pass with the title of every tract or parcel of land. Section 9.02. A member's spouse, parents and/or children who reside with such member in Oak Hills shall have the same easement of enjoyment hereunder as a member. Section 9.03. Title to Common Areas and the Future Road. (a) The Declarant covenants for itself, its successors and assigns, that it shall convey common areas and the Future Road by deed to the Association, at no costs to the Association, and subject to (i) all restrictions and limitations imposed by this Declaration including without limitation, all rights of easement and rights of entry reserved unto the Declarant, its successors and assigns, in said Declaration; (ii) all other restrictions and limitations at the time of conveyance; (iii) any restrictions and limitations, conditions or determinations as to the purposes and uses for the conveyed property as stipulated in said deed; and (iv) any commitments by the Declarant to construct certain improvements thereon as stipulated in said deed; and upon such conveyance, said parcels of land and any improvements thereon shall become common areas or Future Road as designated in said deed. (b) The Association shall not refuse the conveyance to it of any common area at such time as the Declarant, in its sole and uncontrolled discretion, deems it advisable to convey such property to the Association. (c) Upon conveyance of any parcel of land and any improvements thereon as a common area by the Declarant or any third party, the Association shall immediately become responsible for all 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. It is the purpose of this provision to provide that the Association shall be responsible for all maintenance and operation of all common areas. (d) Notwithstanding anything in the foregoing to the contrary, the Declarant reserves unto itself, its successors and assigns, and its agents, the right to enter upon any common area, for the purpose of constructing or maintaining indoor and outdoor recreation and community facilities thereon. The provisions of this paragraph shall in no way create any obligation on the part of the Declarant to construct or maintain any such facilities. The Declarant further reserves for itself, its assignees and successors the right to reserve and to grant to third parties such easement as it may deem necessary over common areas. Section 9.03. Extent of Members' Easements. The rights and easements of enjoyment created hereby shall be subject to the following: (a) The right of the Association in accordance with its By -Laws to borrow money from the Declarant or any lender for the purpose of improving and/or maintaining the common areas and providing services authorized herein and in aid thereof to mortgage said properties, provided, however, that any such mortgage is obtained with the prior consent of two- thirds (2/3) of the members of the Association, which consent may be evidenced by petition or by an affirmative vote of two - thirds (2/3) of the members voting in person or by proxy at a duly called meeting of the Association. (b) The right of the Association to take such steps as a reasonable and necessary to protect the above - described properties against foreclosure. (c) The right of the Association to suspend the rights and easements of enjoyment of any member, tenant or guest of any member for any period during which the payment of any assessment against property owned by such member remains delinquent, and for any period not to exceed sixty (60) days for each infraction of its published rules and regulations, it being understood that any suspension for either non - payment of any assessment or the breach of the rules and regulations of the Association shall not constitute a waiver or discharge of the members obligation to pay the assessment. (d) The right of the Association to charge reasonable admission and other fees and dues for the use of recreational facilities and services on the common areas. (e) The right of the Declarant or the Association to dedicate or transfer to any public or private utility, utility or drainage easements on any part of the common areas. 6 IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set his hand and seal this day of February, 2005. Southern Property, LLC DB /A Southern Development By: (SEAL) Managing Member COMMONWEALTH OF VIRGINIA, COUNTY OF ALBEMARLE, to -wit: I HEREBY CERTIFY that on the day of February, 2005, the foregoing instrument was acknowledged before me by Frank T. Ballif, as Managing Member of Southern Property, LLC, DB /A Southern Development. My commission expires: 10 Notary Public