HomeMy WebLinkAboutSUB200500216 Declaration Final Plat 2005-11-01 • y
HARDWARE RIVER FARMS ASSOCIATION
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
THIS DECLARATION, made this day of November, 2005, by HARDWARE
RIVER FARM,INC.,a Virginia corporation,hereinafter referred to as"Declarant":
WITNESSETH:
WHEREAS,Declarant is the owner of certain real property located in the County of
Albemarle, Virginia, and desires to create thereon divided Lots, known as "HARDWARE RIVER
FARMS";
WHEREAS,Declarant desires to provide for the protection and enhancement of the
value and desirability of Hardware River Farms and for the maintenance of the Hardware River
Farms;and to this end,Declarant desires to subject the real property described in Section 2.1 hereof
to the covenants, restrictions, easements, conditions,reservations, liens and charges hereinafter set
forth, each and all of which is and are for the benefit of said real property and the owners thereof;
and,
WHEREAS,Declarant has deemed it desirable to create an agency to which shall be
delegated and assigned the powers of owning, maintaining and administering the community
common properties; administering and enforcing these covenants, conditions and restrictions;
collecting and disbursing the assessments and charges hereinafter created; and promoting the
health, safety, common good and general welfare of the residents of Hardware River Farms; and to
this end,Declarant has incorporated under the laws of the Commonwealth of Virginia a non-profit,
non-stock,member corporation known as "Hardware River Farms Association", for the purpose of
exercising such functions.
NOW, THEREFORE, Declarant hereby declares that the real property described in
Section 2.1 hereof shall be held,transferred, sold,conveyed,leased,donated,devised,inherited and
occupied subject to the covenants, restrictions, easements, conditions, reservations, liens and
charges hereinafter set forth, and any valid amendments or supplements hereto. These covenants,
restrictions, easements, conditions, reservations, liens and charges and all other provisions
hereinafter set forth shall run with the land and shall be binding upon any and all parties who have,
or shall acquire, any right, title, 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. However, all of Hardware River
Farms is and shall remain subject to all applicable zoning and subdivision ordinances and laws of
Albemarle County,Virginia and in the event such ordinances and laws are more restrictive than the
terms of this Declaration,such laws and ordinances shall control.
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
The following words, when used in this Declaration, shall have the following
meanings:
"Hardware River Farms" shall mean and refer to the real property and
improvements now or to be constructed thereon described in Section 2.1 hereof which is hereby
subjected to this Declaration,together with such other real property as may hereafter, from time to
time,be added thereto under the terms of Section 2.2 hereof.
"Declarant" shall mean and refer to Hardware River Farm, Inc., a Virginia
corporation, and any successor to or assignee of it as Declarant and all references to Declarant
herein shall include its successors and assigns.
"Declaration" shall mean and refer to the covenants, restrictions, easements,
conditions, 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.
"Supplementary Declaration" shall mean and refer to any declaration of covenants,
conditions and restrictions which may be executed and recorded by Declarant which may be
executed and recorded pursuant to section 12.4 hereof which imposes additional, modified,
supplementary or complementary provisions,covenants,conditions and/or restrictions upon the real
property then subject to this Declaration.
"Lot" shall mean and refer to any lot of land numerically and/or alphabetically
designated and shown or described on any recorded plat of any portion of Hardware River Farms,
with the exception of Common Properties. Any home constructed in Hardware River Farms shall
be built only on a Lot.
"Owner" shall mean and refer to the record owner,whether one or more persons or
entities, including Declarant, of the fee simple title to any Lot, including contract sellers, but
excluding those having 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 come into use,possession or enjoyment of such Lot.
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"Association" shall mean and refer to Hardware River Farms Association, a non-
profit, non-stock corporation incorporated under the laws of the Commonwealth of Virginia, its
successors and assigns.
"Member" shall mean and refer to every person or entity who holds membership in
the Association.
"Board of Directors" shall mean and refer to the Board of Directors of the
Association.
"Preservation Area" shall mean all areas lying and being within 25 feet of the
Hardware River on any Lot.
"Private Road" shall mean and refer to the privately owned roads and easements for
such roads shown and described on the Plat described in Section 2.1 hereof. The Private Roads
shall include for maintenance purposes all storm water control and management areas, drainage
easements and biofilters that have been created or constructed within Hardware River Farms
including those shown on the Plat or any attachments to the Plat and those that have been created or
constructed but are not shown on the Plat.
"Community Assessment" shall mean and refer to the charges, fees and liens
imposed upon Lots for community purposes as provided in this Declaration.
"Assessment" shall mean and refer to the charges, fees and liens imposed upon the
Lots as provided in any Declaration.
"Architectural Control Board" shall mean and refer to the Board established herein
for the purpose of regulating the external design, appearance, and use of the Lots, Common
Properties,and improvements thereon.
"Home"shall mean the residential dwelling on a Lot.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Section 2.1 Property.
The real property which at this time is, and shall be held, transferred, sold,
conveyed, donated, leased, devised, inherited, and occupied subject to the covenants, restrictions,
easements, conditions, reservations, liens and charges set forth in this Declaration are all those
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certain Nine Lots known as Hardware River Farms, being comprised of Lots designated as Lots 1
through 9, inclusive, and the Common Area shown on that certain plat entitled"Subdivision Plat
Lots 1 Thru 9,Hardware River Farms ..."made by Roger M.Ray&Assoc.,Inc.dated July 6,2005
(the "Plat") which is attached hereto and recorded herewith as a part hereof in the Circuit Court
Clerk's Office for the County of Albemarle, Virginia (collectively the Lots and the Common
Properties may be referred to herein as the"Community").
ARTICLE III
ASSOCIATION NETWORK
Section 3.1 Association.
The Association is a non-profit,non-stock membership corporation which has been
incorporated under the laws of the State of Virginia for the purpose of applying,administering and
enforcing the covenants,restrictions,conditions,liens and charges contained in this Declaration;for
the purpose of owning,maintaining and administering the Common Properties;and for the purpose
of providing the maintenance within Hardware River Farms as set forth in this Declaration. The
Association shall have all of the powers granted to it herein and all such powers as are granted to
such Associations and nonstock corporations by law,including but not limited to those granted by
the Virginia Property Owners Association Act.
ARTICLE IV
COMMON PROPERTIES
Section 4.1 Composition.
The Common Properties consist of the Private Road.
Section 4.2 Establishment of Private Road.
Declarant does hereby establish and impose for the benefit of all Lots,private access
easements along and across the Private Road for the purpose of ingress and egress to and from all
Lots and the public highway system of the Commonwealth of Virginia, expressly reserving the
identical rights of ingress and egress for the benefit of the Declarant and its assigns. The Private
Road shall include for maintenance purposes all storm water control and management areas,
drainage easements and biofilters, curbs. gutters. drainge facilities, and utilities that have been
created or constructed within Hardware River Farms, There is hereby established over the Lots I Deleted: that have been created or
along the drainage easements and biofilters an easement for the benefit of the Association for constructed within Hardware River
Farms.
ingress and egress to maintain as necessary all storm water control and management areas,drainage •
easements and biofilters, - Deleted:.11
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Section 4.3 Establishment of Preservation Area.
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Declarant does hereby establish the Preservation Area. No Owner of a Lot or the
guests or invitees of such Owner shall remove trees greater than 6 inches in diameter from or
disturb the surface of the Preservation Area or erect any structure or fence of any type within the
Preservation Area. No livestock whatsoever shall be allowed within the Preservation Area.
Section 4.4 Establishment of Maintenance Easement for Steep Grade Areas.
Declarant does hereby establish on portions of Lots 1, 2, and 9 as described in this
Section, a Maintenance Easement Area which shall be an easement for the landscaping and
maintenance by the Association of areas of significant grade and include areas of frontage on Old
Lynchburg Road. The Maintenance Easement Area shall be described as follows(i)the portion of
Lot 9 lying between the Hardware River Road easement and the lines designated"N67°23'39"W
110.86' " and"N50°52'35" W 411.45' " on the Plat (ii)the portion of Lot 1 lying between Old
Lynchburg Road and the lines designated"75' Building Setback Line"and"L17" on the Plat(iii)
the portion of Lot 1 lying between the Hardware River Road easement and the line designated"25'
Building Line" on the Plat (iv) the Portion of Lot 2 lying between the Hardware River Road
easement and the line designated"25'Building Line"on the Plat.
Section 4.5 Regulation of Private Road,Traffic and Parking.
The Board of Directors of the Association shall have the power to establish,adopt
and enforce restrictions,rules,and regulations with respect to the use of the Private Road,
including but not limited to the establishment of usage rules and speed limits and with respect to
any other areas of responsibility assigned to the Association in this Declaration and shall further
have all to powers granted to an Association's Board of Directors in Virginia Code§55-513 or its
successor provision.
Section 4.6 Easement of Enjoyment of Common Properties.
Each Owner, the guests of each Owner, and the tenants of each Owner shall have a
right and easement of use and enjoyment of the Private Road and any facilities situated thereon
subject to the following:
A. No obstruction or storage within the Private Road is permitted
without the express prior written consent of the Association;and
B. The right of the Association to place reasonable rules, restrictions
and regulations upon the use of the Private Road.
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ARTICLE V
EASEMENTS
Section 5.1 Drainage and Utility Easements.
Declarant reserves unto itself, its successors and assigns, a perpetual and alienable
easement and right of way above ground and underground through all areas subject to this
Declaration and any Supplementary Declaration,including areas within the boundaries of Lots,and
excepting only land beneath approved buildings,to construct, maintain, inspect,replace and repair
electric and telephone lines, wires, cables, conduits, and other suitable equipment and facilities for
the conveyance of telephone, electricity, television cable, exterior lighting and other utilities and
public conveniences and for storm and surface water drainage,including pipes,ditches,culverts 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. 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. 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
property resulting from the use of the easements hereby reserved shall be promptly repaired at the
expense of the party causing such damage. Declarant and the Association shall have the power to
grant easements for public utilities so long as such easement does not include any building within it.
ARTICLE VI
MAINTENANCE OF HARDWARE RIVER FARMS
Section 6.1 Maintenance of Roads and Utilities.
Private Road. The Private Road requires private maintenance by the Association
which maintenance shall include, but not be limited to, pot hole repair, repaving, marking, and
snow and ice removal. THE COST OF CONSTRUCTION, REPAIR, MAINTENANCE,
UPKEEP, IMPROVEMENT OR REPLACEMENT OF PRIVATE ROAD WILL NOT BE
BORNE BY THE COUNTY OF ALBEMARLE, OR THE COMMONWEALTH OF VIRGINIA,
OR ANY PUBLIC AGENCY. The initial construction of Private Road shall be borne and
completed by Declarant. Thereafter, all of the repair, maintenance, upkeep, improvement,
enhancement and replacement of Private Road shall be borne and completed by the Association and
be the responsibility of the Association. . Maintenance includes,but is not limited to, the prompt
removal of snow,water, debris or other obstruction to keep the Private Road open for usage by all
vehicles, including emergency services vehicles, except in severe temporary weather conditions.
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The Private Road shall be maintained at a minimum to the standard at which it was constructed by
Declarant which is to Virginia Department of Transportation secondary road standards except with
respect to grade percentage; such standards include pavement eighteen feet in width and the
Association shall maintain the Private Road in perpetuity to substantially the same condition as
when the Private Road was approved by the County of Albemarle. The Association shall,through
its Board of Directors, at a minimum, annually assess the condition of the Private Road and take
such steps as necessary at least annually to repair maintain the Private Road to the standard at which
it was constructed by Declarant which is to Virginia Department of Transportation secondary road
standards except with respect to grade percentage;such standards include pavement ei<xhteen feet in
width.
Deleted:11
Section 6.2 Maintenance of Maintenance Area Easement.
The initial grading, mulching, seeding and landscaping of Maintenance Area
Easement, as deemed appropriate by Declarant, shall be performed by Declarant. Thereafter, the
Association shall be responsible for the mulching, maintenance of grass, and the maintenance of,
and in its discretion,the replacement of,all shrubbery and other plantings,which are either natural,
or were planted by Declarant, within the Maintenance Area Easement and the costs of such
maintenance shall be an expense of the Association.
Section 6.3 Easement for Maintenance.
For the purpose of performing the maintenance on the Lots required or permitted by
this Declaration,the Association,through its duly authorized agents and/or employees,shall have a
non-exclusive easement to enter upon,or in,any Lot.
ARTICLE VII
ASSOCIATION
Section 7.1 Membership.
Every Owner of a Lot shall be a Member of the Association. In addition,Declarant
Shall be a Class B Member of the Association as set forth in this Declaration and in the Articles of
Incorporation and By-Laws of the Association so long as Declarant owns any Lot. Membership in
the Association shall be appurtenant to, and may not be separated or alienated from ownership of
Lots. The Association may have other classes of Members as described in Supplementary
Declarations recorded hereafter. The Association shall not discriminate on the basis of race, creed
or sex in its membership.
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Section 7.2 Voting Rights.
The total number of Lots planned to be created in Hardware River Farms is nine(9).
With reference to this total potential number of Lots within Hardware River Farms, initially
Association shall have two (2) classes of voting membership. At meetings of the Association, a
quorum shall be the presence,in person or by proxy,of 50%of the votes entitled to be cast.
Class A. Class A Members shall be all Owners of Lots with the exception of
the Class B Member. Class A Members shall be entitled to one(1)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. The vote for such Lot shall be exercised as they among
themselves determine,but in no event shall more than one(1)vote be cast with respect to any Lot.
Class B. The Class B Member shall be the Declarant. The Class B Member
shall be entitled to four (4) votes for each of the nine (9) potential and/or actual Lots which
Declarant has not transferred to a Class A Member. Declarant's Class B membership shall
terminate on the date on which Declarant has transferred to Class A Members a total of seven(7)
the Lots in Hardware River Farms.Declarant may terminate its Class B Membership at any time by
filing with the Association and in the Clerk's Office of the Circuit Court of the County of
Albemarle,a written certificate terminating Declarant's interest as a Class B Member. At such time
as Declarant's Class B membership terminates, Declarant shall become a Class A Member to the
extent,and for the period during which Declarant owns any Lot in Hardware River Farms.
Section 7.3 Board of Directors.
The Board of Directors of the Association shall be elected by the Members as set
forth in the By-Laws of the Association.
Section 7.4 Powers and Duties of 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 do all such acts and things as are not by the
Declaration or by the Articles of Incorporation and/or By-Laws of the Association required to be
exercised or done by the Members of the Association.
Section 7.5 Powers and Duties of the Association.
The powers and duties of the Association shall be those set forth in this Declaration
and the Articles of Incorporation and By-Laws of the Association, as the same may be amended
from time to time.
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ARTICLE VIII
ASSESSMENT
Section 8.1 Type of Assessments
Within Hardware River Farms, two types of assessments are permitted as follows:
Annual Community Assessments and Special Community Assessments made by the Association
upon Lots for community purposes, for the purpose of providing the maintenance, repairs,
replacements, and any other lawful purpose required of the Association by this Declaration or
permitted by the Virginia Property Owners Association Act.
Section 8.2 Community Assessments:
A. Creation of Community Assessment Lien: Declarant for each Lot owned
hereby covenants, and each Owner of any Lot by acceptance of a deed or other instrument of
conveyance therefor,including any purchaser at a judicial or trustee sale,whether or not it shall be
so expressed in any such deed or other conveyance,shall be deemed to covenant and agree to pay to
the Association: (1) all annual Community Assessments, fees and charges, and (2) all special
Community Assessments for capital improvements, major repair, and/or extraordinary
maintenance, and/or other extraordinary items, such special Community Assessments to be fixed,
established and collected from time to time as hereinafter provided. The annual Community
Assessments and special Community Assessments, together with interest as hereinafter provided,
costs of collection, and reasonable attorney's fee, shall be a charge upon the land and shall be a
continuing lien upon the Lot against which each such Community Assessment is made as
hereinafter provided. No Owner may waive or otherwise avoid liability for such annual
Community Assessments and/or special Community Assessments by the non-use of the Common
Properties or by abandonment of his Lot or rights in the Common Properties.
B. Purpose of Community Assessments. The Community Assessments levied
by the Association shall be used to promote the enjoyment,health,safety and welfare of the owners
in Hardware River Farms and in particular for the repair, maintenance, upkeep, improvement,
enhancement and replacement of the Private Road and the Maintenance Area Easement, surface
and storm water drainage facilities, identification signs, and exterior lighting systems (if any), in
Hardware River Farms and for such other maintenance, repairs, and replacements required of the
Association as provided in this Declaration, and, if deemed necessary and/or appropriate by the
Board of Directors of the Association, the advancement of the cost of any payment repair and/or
replacement of any item which is the responsibility of any Owner until such time as the additional
assessment attributable thereto can be levied and collected from the Owner(s)responsible therefor.
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C. Basis and Maximum of Annual Community Assessments: The annual
Community Assessments shall be made on the basis of a calendar year beginning January 1st and
ending December 31st. Until December 31, 2006, the maximum annual Community Assessment
on each Lot which has been conveyed in fee simple by Declarant to an Owner shall be One
Thousand Two Hundred Dollars($1200.00)per year(prorated at$100.00 per month). Each year
thereafter, the maximum annual Community Assessment may be increased by up to Twenty Five
percent (25%) per year of the prior year's annual Community Assessment for such Lots effective
January 1st of each year by the Board of Directors of the Association, without a vote of the
Members,which Board of Directors may fix such annual increase after due consideration of current
and anticipated maintenance costs,appropriate depletion allowances,reserve funds,and other needs
of the Association. An increase requested by the Board of Directors in the usual annual
Community Assessment above the annual Twenty Five percent(25%)increase over the prior fiscal
year's assessment for such Lots must be approved by a majority of the quorum at a meeting of the
Members of the Association duly called for this purpose.
D. Special Community Assessment. In addition to the annual Community
Assessment authorized above, the Association may levy in any assessment year, a special
Community Assessment applicable to that fiscal year only for the purpose of defraying,in whole or
in part, the costs of any major and/or extraordinary, replacement, maintenance or repair of the
Common Properties, which include the Private Roads and Common Areas in Hardware River
Farms and for such other maintenance, repairs, and replacements required of the Association as
provided in this Declaration,and,if deemed necessary and/or appropriate by the Board of Directors
of the Association, the advancement of the cost of any payment, repair and/or replacement of any
item which is the responsibility of any Owner until such time as the additional assessment
attributable thereto can be levied and collected from the Owners responsible therefor;provided that
any such special Community Assessment shall have the consent of 60%of the quorum at a meeting
of the Association duly called for this purpose.
E. Reserves. The Association shall set aside a minimum of 10% of its
collected Annual Community Assessments as a replacement fund for capital items which funds
may be disbursed by the Board of Directors of the Association in its discretion for such purpose.
Section 8.3 Date of Commencement of Annual Community Assessments
Declarant shall not be obligated to pay Community Assessments for Lots owned by
it. However,Declarant shall pay such amounts as Declarant shall deem reasonably necessary in its
sole discretion to supplement the Community Assessments until such time as Declarant no longer
owns any Lots. The annual Community Assessment provided for herein shall commence any Lot,
other than a Lot owned by Declarant, upon the issuance of a Certificate of Occupancy for a Home
on such Lot or the date that is one year from the conveyance in fee simple of such Lot by the
Declarant, whichever first occurs. The Board of Directors shall set the amount of the annual
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Community Assessment against each Lot, at least thirty (30) days in advance of each annual
assessment period. Written notice of the such annual assessments shall be sent to every Owner
subject thereto. In the event that the amount set by the Board of Directors for a given annual
assessment period is less than the maximum amount that the Board of Directors could have set,
then the Board of Directors shall have the right to subsequently increase such annual assessment up
to and including such maximum amount,and to make a supplemental levy upon the Owners subject
thereto, if the Board of Directors determine that the amount of such annual assessment as initially
set was inadequate. Unless otherwise established by the Board of Directors, such annual
assessments shall be due in advance in twelve(12) equal monthly installments on the first day of
each month,and such assessments shall be prorated where sale is made or a commercial structure is
completed between the due dates. The Association shall, within fourteen (14) business days of
request, 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 Board
of Directors for the issuance of these certificates. Such certificates shall be conclusive evidence of
payment of any assessment therein stated to have been paid.
Section 8.4 Personal Obligation of Community Assessments.
Community Assessments, together with interest as hereinafter provided, costs of
collection,and reasonable attorney's fee, shall also be the personal obligation of the person who was
the Owner of such Lot at the time when such Community Assessments first became due and
payable. In the case of co-ownership of a Lot, all such co-owners shall be jointly and severally
liable for the entire amount of such assessments. All Owners of Lots by acceptance of an
instrument of conveyance, waive all rights to any homestead exemption with respect to their
personal obligation for the payment of such assessments. The personal obligation for all unpaid
delinquent Community Assessments shall not pass to an Owner's or Declarant's successor in title,
unless expressly assumed by such successor in writing.
Section 8.5 Interest On and Costs of Collection of Assessments;Right to Accelerate.
The lien for Community Assessment shall also secure all interest and costs of
collection, including a reasonable attorney's fee, whether suit be brought or not, which may be
incurred by the Association in enforcing said lien. Any Community Assessment which is not paid
when due shall bear interest from the date when due until paid at the rate of twelve percent(12%)
per annual. In the event that any Owner is more than forty-five(45)days delinquent in the payment
of any Community Assessment, the Association shall have the right and power to accelerate the
balance of the year's Community Assessments and to consolidate said balance with any delinquent
amount.
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Section 8.6 Lien for the Payment of Assessments and Subordination of Lien to First and Second
Lien Deeds of Trust.
There shall be a continuing lien upon each of the individual Lot subject thereto in
order to secure payment of any of the Community Assessments provided in this Declaration, but
such lien shall be at all times subject and subordinate to any first or second mortgages or deeds of
trust placed on the Lot at any time. However, at such time as the Association places to record, in
the Clerk's Office for the County of Albemarle, Virginia, a notice of delinquency as to any
particular Lot on a form prescribed by the Board of Directors,then,from the time of recordation of
said notice the lien of such delinquent Community Assessments in the amount stated in such notice
shall be a lien prior to any subsequently recorded first or second mortgages or deeds of trust in the
same manner as the lien of a docketed judgment in the State of Virginia. The lien of Community
Assessments provided for herein, whether or not notice has been placed on record as above
provided, may be foreclosed by a bill in equity in the same manner as provided for in the
foreclosure of mortgages, vendor's liens, and liens of a similar nature. A statement from the
Association showing the balance due on any Community Assessment shall be prima facie proof of
the current Community Assessment balance and delinquency,if any,due on a particular Lot.
ARTICLE IX
ARCHITECTURAL CONTROL
Section 9.1 Purpose.
An Architectural Control Board shall regulate the external design, appearance, use,
location, and maintenance of improvements as well as clearing and landscaping on any Lot or the
Common Properties, other than improvements constructed or landscaping done by Declarant, its
contractors and subcontractors,in such a manner so as to preserve and enhance values,to maintain
a harmonious relationship among structures and the natural vegetation and topography, and to
preserve the general character and architectural compatibility of Hardware River Farms as
constructed by Declarant.
Section 9.2 Condition.
Except as permitted herein, there shall be no clear cutting on any Lot. A Home site
of one acre or less on may be clear cut on a Lot. At least 50%of the area of a Lot that is forested
and wooded on the date such Lot was first conveyed in fee simple by Declarant to an Owner shall
be maintained in such forested or wooded state; maintenance of such forested areas shall be
permitted including the removal of dead and scrub trees as well as other best practice maintenance
activities. No buildings,fences,walls,residences or other structures or improvements to a structure
erected or constructed on any portion of Hardware River Farms shall be commenced,other than by
Declarant, without the prior written approval of the Architectural Control Board. Declarant shall
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not be required to obtain the consent or the approval of the Architectural Control Board or of the
Association for any improvements, construction, grading or landscaping performed by Declarant,
its contractors and subcontractors in Hardware River Farms.
Section 9.3 Procedures.
Any Owner who desires to construct any improvement on or make alteration to the
exterior appearance of its Lot, or the improvements thereon, and the Association itself,if it desires
to construct any improvements on or make any alternation to any Lot or the Common Properties,
shall submit the plans and specifications therefor showing the nature, kind, shape, height, color,
materials and location of the same to the Architectural Control Board. In discharging its functions
and duties, the Architectural Control Board shall endeavor to maintain and preserve the general
character and architectural compatibility of Hardware River Farms as developed by Declarant. In
the event the Architectural Control Board fails to approve, modify or disapprove in writing a
request for approval required herein within sixty (60) days after plans, specifications, or other
appropriate materials have been submitted in writing to it, in accordance with its adopted
procedures,the approval will be deemed disapproved. The Architectural Control Board may adopt
procedures or standards as to the information it requires to be submitted to it with any request for
approval.
Section 9.4 Presumption.
In the event that the appropriate equitable action together with the filing of a lis
pendens has not been commenced within one hundred eighty(180)days after the completion of any
improvements or alterations,it shall be conclusively presumed that such construction,alterations,or
improvements are approved by the Architectural Control Board.
Section 9.5 Composition of Architectural Control Board.
For so long as the Declarant owns any Lot in any Phase of Hardware River Farms,
the Architectural Control Board shall consist of not less than one (1) nor more than three (3)
persons appointed by Declarant. Such person or persons may, but need not, be Members of the
Association. At such time as the Declarant has conveyed seven (7) of the Lots in Hardware River
Farms to third parties thereby terminating its Class B Membership in the Association, the control
of the Architectural Control Board shall be transferred to the Association and the Board of
Directors of the Association shall thereafter constitute the Architectural Control Board.
ARTICLE X
GENERAL USE RESTRICTIONS
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Section 10.1 Use and Further Subdivision.
All numbered Lots shall be used for residential and agricultural purposes that are
permitted under this Declaration.NO LOT MAY BE FURTHER SUBDIVIDED.Any number of
Lots may be put together to form one Lot.There shall be no hunting on any Lot.
Section 10.2 Construction.
No residential structure having less than 2000 square feet of finished or heated
space for a one-story dwelling shall be constructed on any Lot.No multi-level dwelling having
less than 2500 square feet in the aggregate on two main levels of finished or heated space shall be
constructed on any Lot.The required square footage shall be exclusive of basements,walks,
drive,porches and carports or garages.The square footage requirements of this section may be
modified for an individual dwelling by the Architectural Control Board for good cause. No
property owner or contractor shall cease construction prior to completion of any dwelling or
allow the construction time to be excessively greater than the average or usual construction time
for similar dwellings built by reputable contractors in the local area. The construction period in
no event shall exceed 18 months from groundbreaking.No dwelling or part of any dwelling may
be occupied for living purposes,temporary or permanent,until construction is completed and a
certificate of occupancy is issued by Albemarle County officials.
Section 10.3 Number of Dwellings.
Only one primary single family dwelling per Lot shall be permitted. However,
subject to applicable zoning and subdivision laws,rules and regulations of Albemarle County,a
guest house or cottage may be constructed as a secondary dependency on a Lot.
Section 10.4 Permanent Construction.
All detached buildings shall be of permanent type construction.
Section 10.5 Exterior.
The exterior walls of any residence or dwelling constructed on any Lot shall be
faced with brick,stone,dryvit,stucco,hardiplank,or wood. The foundation of any such
residence or dwelling shall be brick,stone,dryvit or stucco.
Section 10.6 Nuisance,Signs and Storage.
No noxious or offensive activity shall be carried on within Hardware River
Farms,nor shall anything be done which shall constitute a nuisance to the other property owners.
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No signs(except For Sale signs six feet square or less)or billboards shall be erected on any Lot
unless approved in advance by the Architectural Control Board.No building materials(except
during the time of construction),unlicensed or inoperable vehicles or inventories may be stored
outside at any time. Storage of firewood and trash containers shall be restricted to the rear yard
and well screened as not to cause an eyesore to adjoining Lot Owners. Propane tanks shall be
aesthetically well-screened and located on the side or rear of the dwelling.
Section 10.7 Driving Surfaces.
The first 100 feet of the driveway on all Lots must be surfaced with pavers,
surface-treatment gravel,asphalt or concrete and after that distance with packed and maintained
gravel,surface-treatment gravel,asphalt,concrete or other similar surface.
Section 10.8 Vehicle and Trailer Storage.
Parking of all trailers,commercial and recreational vehicles and related
equipment,including but not limited to horse trailers,motor homes,boats and boat trailers,other
than on a temporary and non-recurring basis shall be in garages or in areas hidden from view of
the street or Private Road on which said Lot fronts.
Section 10.9 Mobile and Modular Prohibition.
No house trailer,mobile home,double-wide manufactured modular or similar
home shall be permitted at any time on any Lot.
Section 10.10 Landscaping.
Each Lot Owner shall keep his property free from tall grass,undergrowth,dead
trees,trash and rubbish and shall properly maintain his property. Property that is not wooded or
cultivated shall be mown at least three times per year. Unless maintained by the Association,
each Lot Owner shall be responsible for seeding,mowing,and maintaining that portion of land
between each Lot line and the pavement of the street.
Section 10.11 Underground Utilities.
All utility lines between dwellings and the main line shall be installed and
maintained underground.
Section 10.12 Horses,Barns and Other Animals.
Except for Lots 8 and 9 on which horses shall not be kept or maintained,horses
are permitted on Lots in Hardware River Farms in accordance with this Declaration. Barns and
stables are permitted on Lots in accordance with this Declaration,including but not limited to
review by the Architectural Control Board.No horse shall be pastured or kept on any Lot until a
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Home is built on such Lot and a certificate of occupancy is issued for such Home.No animals
may be kept on any Lot in such numbers or in such manner as to create a nuisance to the Owners
of other Lots in Hardware River Farms or in such numbers as to overburden the pasture on any
Lot so that the vegetative ground cover is substantially removed.No stable,barn or other such
shelter shall be built within 50 feet of any property line. No horses shall be allowed or
maintained within the Preservation Area.No commercial type animal breeding facilities(for
example,a multiple dog kennel producing puppies for sale)Other than horses as provided in
these restrictions and generally recognized house or yard pets,no other animals,including,but
not limited to fowl,goats,swine,sheep,cattle,poultry,and any other barnyard or zoo-type
animals,shall be kept or maintained on any Lot. The provisions of this Section remain subject to
the laws and ordinances of Albemarle County.
Section 10.13 Roadways and Setbacks.
No Lot or part of any Lot shall be used for a roadway or access to any other Lot of
land lying outside this Community All setbacks shall be the more restrictive of those imposed on
the Plat or by the County of Albemarle in its zoning and subdivision ordinance and by any
special use permits granted by said County affecting Hardware River Farms.
Section 10.14 Declarant Modifications.
Notwithstanding any other provisions herein to the contrary,the Declarant its
successors or assigns,reserves for itself,its successors and assigns,the right to and the right to
change and modify the Plat by changing the size and shape of any Lot shown thereon including
any further subdivision of a Lot,building setback,yard,or dwelling area requirement except no
front setback may be reduced to less than such setback as is permitted by Albemarle County.
Section 10.15 Fences.
Any fence constructed shall be of wood or vinyl type horse fence construction and
shall be subject to prior approval of the Architectural Control Board. No bare wire fencing shall
be permitted unless approved by the Architectural Control Board.
Section 10.16 Applicability.
These restrictions shall only apply to the numbered Lots in Hardware River
Farms. These restrictions shall not apply by implication or otherwise to any property owned by
Declarant other than the property shown on the Plat.
Section 10.17 Construction.
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Each Owner is responsible for all construction debris during the construction
period. Debris should be placed in a temporary dumpster or removed from site and the building
site kept in a reasonably neat manner as not to cause an eyesore for the neighbors and the overall
appearance of Hardware River Farms. At the time of construction,the builder and the Lot Owner
will be liable and responsible,jointly and severally,for carrying out the appropriate approved
erosion and sediment control measures(i.e.gravel construction entrances,driveway pipes,
seeding,silt fence barriers,etc)and insuring that they are properly installed and functioning as
planned and for repairing any damage caused by such construction to the Private Roads.
ARTICLE XI
DECLARANT'S RIGHTS
Section 11.1 Declarant's Rights.
Declarant hereby reserves to itself, and each Owner of any Lot, by acceptance of a
deed or other instrument of conveyance therefor, hereby agrees that Declarant shall have the
following rights,so long as Declarant owns any Lot in Hardware River Farms,to-wit:
A. The right to re-locate Lot lines within Hardware River Farms in accordance
with the laws of the State of Virginia;
B. The right to approve or disapprove any amendment to this Declaration and
any amendments to any corporate documents related to the Association;and
C. The right to conduct the development, construction, marketing and sale of
all property in Hardware River Farms owned by Declarant,including the erection of signs and the
use of Common Properties for promotional purposes.
D. The right to assign all of its rights under this Declaration to a successor
Declarant.
E. The right of ingress and egress for a period of five(5)years from the date of
recordation of this Declaration across the rear portions of Lots 1, 2, 3 and 4 for the purpose of
maintaining Lots.
Section 11.2 Release of Rights ll Declarant.
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Declarant may,by an instrument recorded in the Clerks Office of the Circuit Court
for the County of Albemarle,Virginia,release, at any time and without the approval or consent of
any other party,any of the rights reserved unto it under this Declaration.
ARTICLE XII
GENERAL PROVISIONS
Section 12.1 Managing Agent.
The Association may employ and pay a managing agent,who may be an affiliate of
Declarant,to manage the affairs of the Association and provide maintenance. Such managing agent
shall be employed and compensated for its services and costs pursuant to a written contract.
Section 12.2 Enforcement and Attorney's Fees.
Enforcement of the provisions of this Declaration shall be by proceedings at law
or in equity against any person or persons violating or attempting to violate any covenant either
to restrain violation or recover damages. Such action may be brought by Declarant, or its
successors or assigns as Declarant, the Association, or the Owner of any Lot. Subject to the
condition in the next sentence of this paragraph, any Owner of the Lots restricted hereby shall
have the right and standing to bring suit to enforce the provisions hereof. However, so long as
Declarant owns any Lot restricted hereby, prior to any other Owner bringing such action, such
Owner shall make written demand for enforcement upon Declarant and shall only proceed with
such action if Declarant fails to do so within 60 days after such owner has made demand. So
long as Declarant owns any Lot restricted hereby, Declarant shall have the right and standing to
bring suit to enforce the provisions hereof. In the event the Association, an Owner, or the
Declarant is forced to bring an action to enforce any provision of this Declaration and prevails,
the Owner against whom the action is brought shall be liable for the costs and attorney's fees for
such action.
Section 12.3 Severability.
Invalidation of any one or more of the provisions of this Declaration by judgment,
court order or otherwise, shall in no way affect any other provision which shall remain in full force
and effect.
Section 12.4 Amendments.
Until such time as Declarant owns less than fifty percent (50%) of all Lots then
subject to this Declaration, Declarant may amend this Declaration to modify the provisions hereof
so long as such modification does not materially impair the rights of the Owner of any Lot who had
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acquired such Lot prior to a modification. At anytime,this Declaration may be amended in whole
or in part by recorded instrument bearing the signature of the Owners of record, including joint
tenants and tenants in common, of fifty percent(50%) of all Lots then subject to this Declaration;
provided, however, that any such amendment shall be subject to the approval or disapproval by
Declarant as set forth in Section 11.1 hereof. EXCEPT HOWEVER,the restriction herein against
the further subdivision of any Lot may not be amended unless such amendment provides that any
new Lot created shall be a Lot for assessment purposes which Lot shall be subject to the same
assessments as any other Lot for the repair and maintenance of all Private Roads and Common
Areas.
Section 12.5 Gender;Singular/Plural.
As used in this Declaration, the masculine gender shall include the feminine and
neuter, and vice versa, and the singular shall include the plural, and vice versa, whenever
appropriate.
Section 12.6 Duration.
The covenants and restrictions of this Declaration shall run with and bind the land
for a term in perpetuitv,unless modified,amended or rescinded as provided in Section 12.4. j Deleted:of sixty(60)years from date
and thereafter shall automatically renew j
for
Section 12.7 Agreement of Owners. eachuccessive periods often(10)years
Acceptance of a deed for a Lot by an Owner shall constitute such Owner's
agreement to be bound by the terms of this Declaration.
IN WITNESS WHEREOF,Declarant has caused this Declaration to be executed on
its behalf by its Manager.
HARDWARE RIVER FARMS,INC.
By:
Its President
,COMMONWEALTH OF VIRGINIA ) 1 Deleted:if
(To-Wit: 11....._....................................................._....
CITY/COUNTY OF )
I, , a Notary Public for the Commonwealth of
Virginia at Large do hereby certify that , President of and on behalf of
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Hardware River Farms, Inc., whose name is signed to the foregoing instrument, bearing date the
day of ,2005,has acknowledged the same before me.
Given under my hand this day of ,2005.
My commission expires:
Notary Public
(Notarial Seal)
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