DECLARATION OF COVENANT, CONDITIONS AND RESTRICTIONS OF BLACK FOREST GLIDER PARK SUBDIVISION THIS DECLARATION, is made and entered into this .5th day of August , 1987, by BENJAMIN F. KELLY, hereinafter referred to as Declarant.
WHEREAS, Declarant is the owner of that certain property in the County of Elbert, State of, Colorado, which is more particularly described as:
Lots 1 through 56 and Tract A, Black Forest Glider Park Subdivision, Elbert County, Colorado,
hereinafter “the Properties”.
NOW, THEREFORE Declarant hereby declares that all of the properties described above shall be held, and conveyed subject to the following easements, restrictions, covenants, and conditions which shall run with the land and be binding on all parties having any right, title, or interest in the above-described properties or any part thereof, their heirs, successors, and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I DEFINITIONS
Section 1. “Association” shall mean and refer to Black Forest Glider Park Association, Inc., a Colorado nonprofit corporation, its successors and assigns.
Section 2. “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Properties, including contract purchasers, but excluding those having such interest merely as security for the performance of an obligation.
Section 3. “Properties” shall mean and refer to that certain real property described above and such additions thereto as may hereafter be brought within the jurisdiction of the Association.
Section 4. “Common Area” shall mean Tract A (including the improvements thereto) once it is deeded to the Association for the common use and enjoyment of the Owners. Tract A shall be conveyed to the Association at the time forty (40) Lots of the Properties have been sold by Declarant.
Section 5. “Lot” shall mean and refer to any plot of land shown upon any recorded subdivision map including the Properties with the exception of the Common Area, but together with all appurtenances and improvements now or hereafter thereon.
Section 6. “Runway Lot” shall refer to Lots 2-7, 13-19, 25-28, 30, 31 and 39-49.
Section 7. “Off-runway Lots” shall refer to Lots 9-12, 20-24, 32-38 and 50-56. Such lots do not have direct runway access. Each of said off-runway lots includes a portion of land described as Lots 9a-12a, 20a-24a, 32a-38a and 50a-56a (hereinafter “hangar lot”), which is appurtenant to and indivisible from the off-runway lot. The legal description of an off-runway lot shall at all times, in all places, for all-purposes, be deemed to include the associated hangar lot. The hangar lot may not be transferred separate and apart from the off-runway lot.
Section 8. “Residential Lot” shall refer to all runway lots and all off-runway lots.
Section 9. “Commercial Lot” shall refer to Lots 1, 8 and 29.
Section 10. “Declarant” shall mean and referto Benjamin F. Kelly or his estate.
Section 11. “Member” shall mean and refer to every person or entity who holds membership in the Association.
Section 12. “Architectural Control Committee” shall mean the committee appointed by Declarant or by the Board of Directors of Black Forest Glider Park Association, Inc.
Section 13. “First Mortgage” shall mean and refer to any unpaid and outstanding mortgage, deed of trust or other security instrument recorded in the records of the office of the Clerk and Recorder of the County of Elbert, Colorado, having priority of record over all other recorded liens except those governmental liens made superior by statute (such as general ad valorem tax liens and special assessments).
ARTICLE II PROPERTY RIGHTS IN THE COMMON AREA
Section 1. Termination of Restrictions on Common Area. All restrictions on use of the common area provided by this Declaration of Covenants, Conditions and Restrictions and contained in the Development Plan and Guide for the Black Forest Glider Park Subdivision shall terminate as to the common area and be of no further force and effect upon either (a) the dissolution of the Homeowners Association or (b) transfer of ownership of the common area to the County of Elbert through tax sale or otherwise. Upon receipt of ownership of the common area by the County of Elbert for any reason, the Board of County Commissioners of Elbert County shall be authorized to re-zone the common area to provide for any use thereof which is determined by the Board of County Commissioners to be in the best interest of the residents of Elbert County.
Section 2. Owners’ Easements of Enjoyment. Subject to the provisions of Section 3 of this Article, every Owner shall have a non-exclusive right and easement of enjoyment in and to the Common Area and such easement shall be appurtenant to and shall pass with the title to every Lot.
Section 3. Extent of Owners’ 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 Articles and Bylaws, to borrow money for the purpose of improving the Common Area and, with written consent of the Members entitled to vote eighty percent (80%) of the votes of each class of membership and one hundred percent (100%) of all First Mortgagees, of Lots (based upon one vote for each First Mortgage owned) , to mortgage said property as security for any such loan; and
(b) The right of the Association to take such steps as are reasonably necessary to protect the Common Area against foreclosure; and
(c) The right of the Association to promulgate and publish rules and regulations which each Member shall strictly comply with; and
(d) The right of the Association as provided in its Articles and Bylaws, to suspend the voting rights and the right to use the Common Area of a Member for any period during which any assessment against his Lot remains unpaid and, for a period not to exceed sixty (60) days, for any infraction of its published rules and regulations; and
(e) The right of the Association to dedicate 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, provided that no, such dedication or transfer shall be effective unless an instrument agreeing to such a dedication or transfer signed by eighty percent (80%) of each class of Members and by one hundred percent (100%) of all First Mortgagees of Lots (based upon one vote for each First Mortgage owned) has been recorded, and unless written notice of the proposed agreement and action thereunder is sent to every Member at least thirty (30) days in advance of any action taken, and unless such dedication or transfer is approved by Elbert County, Colorado, or any successor governmental entity having jurisdiction over the Properties, if required by resolutions or ordinances thereof, and provided further that the granting or permits, licenses and easements for public utilities and/or for other public purposes consistent with the intended use of the Common Area and reasonably necessary or useful for the proper maintenance or operation of the Properties or the Association shall not be deemed a transfer within the meaning of this Subsection (e).
(f) The right of the Association to close or limit the use of the Common Area while maintaining, repairing and making replacements in the Common Area.
Section 3. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, his right of enjoyment to the Common Area and facilities to the members of his family or contract purchasers of his Lot.
Section 4. Payment of Taxes by first Mortgagees. First Mortgagees of Lots shall have the right, jointly or singly, to pay taxes or other charges or assessments which are in default and which may become a lien against the Common Area, and any First Mortgagees making any such payment shall be owed immediate reimbursement therefor from the Association.
Section 5. Use of Common Area. The sole purpose for which the Common Area may be used is as an airfield where aircraft. take off, land, and generally conduct flight operations and for the conduct of any other operations directly connected with the control of flight operations by lights, radio, signs, wind socks, control towers, instrument landing aids, and any other activity directly related to control of flight activities. Use of the Common Area does not include storage, repair and fueling, which activities may be conducted only on the various Lots, subject to the limitations contained herein. Further, in connection with the use of the Common Areas, soaring activities shall be given the highest priority and nothing shall be done which unreasonably restricts the use of the Common Areas for such soaring activities.
ARTICLE III MEMBERSHIP AND VOTING RIGHTS
Section 1. Membership. Every Owner of a Lot which is subject to assessments shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment. Section 2. Classes of Membership. The Association shall have two classes of voting membership;
Class A. Class A Members shall be all owners, with the exception of the Declarant, and shall be entitled to one (1) vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised as they determine, but in no event shall more than one (1) vote be cast with respect to any such Lot.
Class B. The Class B Member(s) shall be the Declarant and shall be entitled to four (4) votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership when the total votes outstanding in the Class A Membership equal the total votes outstanding in the Class B Membership.
ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned within the Properties, hereby covenants, and each owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges, and (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, including utilities service charges, together with interest, costs and reasonable attorneys’fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. The lien may be enforced by foreclosure commenced by action of the Board of Directors on the defaulting Owner’s Lot by the Association in like manner as a mortgage on real property. In any such foreclosure, the Owner shall be required to pay the costs and expenses of such proceedings, including reasonable attorneys’ fees. The Board of Directors may prepare a written notice setting forth the amount of such unpaid indebtedness, the name of the Owner of the Lot and a description of the Lot. Such a notice shall be signed by the president or vice-president of the Board of Directors and may be recorded in the office of the Clerk and recorder of the County of Elbert, Colorado. The lien for each unpaid assessment, including utilities service charges, attaches to the property at the beginning of each assessment period and shall continue to be a lien against the property until paid. The costs and expenses for filing any notice of lien shall be added to the assessment for which it is filed and collected as part and parcel thereof. Each such assessment, together with interest, costs and reasonable attorneys’ fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them.
Section 2. Homestead Exemption. The lien of the Association assessments, including utilities service charges, shall be superior to any homestead exemption as is now or may hereafter be provided by Colorado law. The acceptance of a deed to any Lot subject to this Declaration shall constitute a waiver of the homestead exemption as against said assessment lien.
Section 3. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the Members, and for the improvement, operation and maintenance of the Common Area. The periodic assessment payments may include as fees in addition to the annual maintenance fee, assessments for payment of utilities service charges.
Section 4. Maximum Annual Assessment. The maximum annual assessment, unless changed by vote of at lest eighty percent (80%) of all classes of Members, shall be equal to twenty-five percent (25%) of the real and personal property taxes paid by the Member with respect to the subject Lot(s). The Board of Directors of the Association may, after consideration of the current maintenance costs and the financial requirements of the Association, fix the annual assessment at an amount less than the maximum.
Section 5. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of eighty percent (80%) of the votes of each class of Members who are voting in person or by proxy at a meeting duly called for this purpose.
Section 6. Notice for Any Action Authorized Under Sections 4 and 5. Written notice of any meeting called for the purpose of taking any action authorized under Sections 4 or 5 of this Article shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting.
Section 7. Uniform Rate of Assessment. Notwithstanding any provision to the contrary in Article IV, both annual and special assessments must be fixed at a uniform rate for all Lots.
Section 8. Date of Commencement of Annual Assessments: Due Dates. The annual assessments provided for herein shall commence on the date of conveyance by Declarant of the Lot. If the initial assessment is not due on January 1 of any year, then the first annual assessment shall be adjusted pro-rata 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 at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance.
Section 9. Effect of Non-payment of Assessments: Remedies of the Association. Any assessment, or assessed fee, whether an annual or special assessment, not paid within thirty (30) days after the due date thereof shall bear interest from the due date at the rate of fifteen percent (15%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the same. In addition to such action, or as an alternative thereto, the Association may file with the Clerk and Recorder of Elbert County, a Statement of Lien, setting forth the name of the Owner, the legal description of the Lot, the name of the Association, and the amount of delinquent assessments then owing, which Statement shall be duly signed and acknowledged by the president or vice-president of the Association, and which shall be served upon the Owner of the Lot by mail to the address of the Lot or at such other address as the Association may have in its records for the Owner of the Lot. Thirty (30) days following the mailing of such notice, the Association may proceed to foreclose the Statement of Lien in the same manner as provided for the foreclosure of mortgages under the statutes of the State of Colorado. (Such Statement shall be in favor of the Association and shall be for the benefit of all other Owners.) In either a personal or foreclosure action, the Association shall be entitled to recover as a part of the action, the interest, costs and reasonable attorneys’ fees with respect to the action. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.
Section 10. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any First Mortgage. Sale or transfer of any Lot shall not affect the lien for said assessment charges except that sale or transfer of any Lot pursuant to foreclosure of any such First Mortgage, or any proceedings in lieu of foreclosure, including deed in lieu of foreclosure, shall extinguish the lien of such assessment charges as to payments which became due prior to such sale or transfer, or foreclosure, or any proceeding in lieu thereof. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, shall relieve any Lot from liability for any assessments thereafter becoming due nor from the lien thereof.
Section 11. Assessment for Unpaid Taxes on Common Area. If at any time during the twenty (20) years immediately following the formation of the Association any taxes are not paid on the common areas when due, the taxing authority may assess against each lot owner 1/56th of any unpaid taxes. Such assessment shall become a lien against the applicable lot which may be foreclosed by the taxing authority pursuant to the laws of the State of Colorado. Upon payment by any lot owner of his proportionate share of taxes assessed on the common area, such lot owner shall have the right to file a claim with the homeowners association for reimbursement of such taxes, which reimbursement shall be made to the lot owner by the homeowners association within ten (10) days after receipt of the claim.
ARTICLE V INSURANCE
Section 1. Insurance on Common Area. The Association shall maintain a comprehensive policy of public liability insurance covering all of the Common Area, insuring the Association in an amount not less than $1,000,000 covering bodily injury, including death of persons, personal injury and property damage liability arising out of a single occurrence. Such coverage shall include, without limitation, legal liability of the insureds for property damage, bodily injuries and deaths of persons in connection with the operation, maintenance or use of the Common Area.
Such policy of insurance shall contain waivers of subrogation and waivers of any defense based on invalidity arising from any acts of a Member of the Association and shall provide that the policy may not be cancelled or substantially modified without at least thirty (30) days’ prior written notice to the insured, as well as to the First Mortgagees of each Lot. Duplicate originals of all policies and renewals thereof, together with proof of payment of premiums shall be delivered to any First Mortgagee of a Lot upon written request. The insurance shall be carried in blanket forms naming the Association as the insured, as trustee and attorney-in-fact for all Owners, and each Owner shall be an insured person under such policy with respect to liability arising out of any such Owner’s membership in the Association.
Section 2. Annual Review of Policies. All insurance policies carried by the Association shall be reviewed at least annually by the Board of Directors of the Association in order to ascertain that the coverage provided by such policies adequately covers those risks insured by the Association.
Section 3. Owner’s Insurance. Owners shall be permitted to maintain casualty and liability insurance for their Lots, and the improvements thereon, but no insurance policy obtained by an Owner shall be permitted which would cause a reduction in the proceeds collectible under a policy obtained by the Association. Insurance coverage on the furnishings and other items of personal property belonging to an Owner and public liability insurance coverage upon each Lot shall be the responsibility of the Owner thereof.
ARTICLE VI ARCHITECTURAL CONTROL COMMITTEE
Section 1. Composition of Committee. The Architectural Control Committee shall consist of five (5) persons. Said Committee shall consist of Benjamin F. Kelly, William E. Payne, and three (3) members appointed by the Board of Directors of the Association. The elected members shall serve for three (3) year staggered terms. Should any member of said Committee die, move away from Colorado, be unable to serve on said Committee or resign, a successor shall be appointed by the remaining members of said Committee. A majority of the Committee may designate a representative to act for it.
Section 2. Review by Committee. No building, fence, wall or other structure or any attachment to an existing structure, whether a residence, an accessory building, or Other similar improvements or attachments, shall be commenced, erected, or maintained upon the Properties, nor shall any exterior addition to or change or alteration therein be made an no change in the final grade, nor the installation of any landscaping shall be performed, until the plans and specifications therefor (said plans and specifications to show nature, kind, shape, exterior. design, height, materials, color, location of the structure or addition to the structure, plotted horizontally and vertically, location and size of driveways, general plan of landscaping, fencing, walls, windbreaks and the grading plan) shall have been first submitted to and approved in writing by the Architectural Control Committee. The Architectural Control Committee shall exercise its best judgment to the end that all attachments, improvements, construction, landscaping and alterations to structures and on lands within the Properties conform to and harmonize with surrounding structures and topography as to external design and location and will not interfere with flight activities conducted on the Common Area.
Section 3. Procedures. The Architectural Control Committee shall approve or disapprove all plans within thirty (30) days after submission. In the event that the Architectural Control Committee fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with.
Section 4. Vote. A majority vote of the Architectural Control Committee is required to approve a proposed improvement, unless the Committee has designated a representative to act for it, in which case the decision of the representative shall control.
Section 5. Records. The Architectural Control Committee shall maintain written records of all applications submitted to it and of all actions taken by it thereon, and such records shall be available to Members for inspection at reasonable hours of the business day.
Section 6. Liability. The Architectural Control Committee and the members thereof shall not be liable in damages to any person submitting requests for approval or to any Owner by reason of any action, failure to act, approval, disapproval, or failure to approve or disapprove, in regard to any matter within, its jurisdiction hereunder.
Section 7. Variance. The Architectural Control Committee may grant reasonable variances or adjustments from any conditions and restrictions imposed by this Article or Article VII hereof in order to overcome practical difficulties and prevent unnecessary hardships arising by reason of the application of the restrictions contained in this Article or Article VII hereof. Such variances or adjustments shall be granted only in case the granting thereof shall not be materially detrimental or injurious to the other property or improvements in the project and shall not militate against the general intent and purpose hereof.
ARTICLE VII RESTRICTIONS
Section 1. General Plan. It is the intention of the Declarant to establish and impose a general plan for the improvement, development, use and occupancy of the Properties, in order to enhance the value, desirability, and attractiveness of the Properties and to preserve the nature of the Common Area for use for aircraft flight activities. The sport of soaring shall be promoted and fostered at this subdivision/ airport even though soaring lot owners may not be in the majority. Ultralight aircraft flight activities are specifically not allowed on the Properties.
Section 2. Restrictions Imposed. The Declarant hereby declares that all of the Properties shall be held and shall henceforth be sold, conveyed, used, improved, occupied, owned, resided upon, and hypothecated and be subject to the provisions, conditions, limitations, restrictions, agreements, and covenants set forth in this Article VII.
Section 3. Use of Common Area.
(a) No use sha11 be made of the Common Area which will in any manner violate the statutes, rules, or regulations of any governmental authority having jurisdiction over the Common Area.
(b) No Owner shall place any structure whatsoever upon the Common Area, nor shall any Owner engage in any activity which will temporarily or permanently deny free access to any part of the Common Area to all Members.
(c) The use of the Common Area shall be subject to such rules and regulations as may be adopted from time to time by the Board of Directors of the Association.
(d) The sole purpose for which the Common Area may be used is as an airfield where aircraft take off, land, and generally conduct flight operations and for the conduct of any other operations directly connected with the control of flight operations by lights, radio, signs, wind socks, control towers, instrument landing aids, and any other activity directly related to control of flight activities. Use of the Common Area does not include storage, repair, fueling, which, activities may be conducted only on the various Lots, subject to the limitations contained herein. Further, in connection with the use of the Common Areas, soaring activities shall be given the highest priority and nothing shall be done which unreasonably restricts the use of the Common Areas for such soaring activities.
(e) The Association shall establish and maintain a program for the control of noxious weeds on the Common Area.
Section 4. Restrictions on All Lots.
(a) No building or obstructions shall be placed closer. Than sixty (60) feet from any front lot line or within any easement indicated on the plat.
(b) No inoperative, wrecked, abandoned, dismantled or junked automobiles, aircraft or other vehicles or machinery shall be placed or remain on any Lot for more than forty-eight (48) total hours unless stored or parked in a garage, carport or hangar. This covenant shall not be applicable to equipment being used in construction of a residence or hangar upon a Lot.
(c) Nothing shall be done or permitted which may become an annoyance or nuisance. No noxious, illegal, dangerous or offensive activities shall be carried on upon any Lot. No Lot shall be used in whole or in part for the storage of any property or anything that will cause such Lots to appear in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material emit foul or obnoxious odors, or cause any noise that disturbs the peace quiet, comfort, or serenity of the occupants of surrounding property.
(d) Rubbish, garbage, or other wage shall he kept and disposed of in a sanitary manner. No Lot or easement shall be used or maintained as a dumping ground for rubbish. All containers or other refuse shall be kept in clean, sanitary condition and covered. Outdoor burning of trash shall not be conducted at any time.
(e) Except for Commercial Lots, no sign of any character shall be displayed or placed upon any Lot except one flat mounted, unanimated, non-flashing sign of not more than nine (9) square feet in area per side, advertising the property during any construction and sale periods. All signs are subject to the approval of the Architectural Control Committee. One pole light or flood light is allowed per lot for exterior security lighting.
(f) None of the Lots shall at any time be divided, subdivided or re-subdivided unless said division, subdivision or resubdivision is permitted by the Architectural Control Committee. In the event of said division, all property thereunder shall be subject to the provisions thereof.
(g) No radio or television antenna or any structure may extend more than twenty-eight (28) feet above the ground.
(h) No person shall be allowed to keep, breed or raise fowl, rabbits, chickens, horses, cows, cattle, sheep, or any other domestic farm or wild animals on any Lot or erect thereon any building to house the same. This restriction shall not be construed to prohibit any person from keeping cats, dogs, or other household pets provided they are not kept, bred, or raised for commercial purposes.
(i) No oil drilling, quarrying, or mining operations of any kind will be permitted on any Lot and no windmills may be erected. This paragraph is subject, however, to the rights granted to the Eagle Exploration Company, or its assigns, under that certain Oil and Gas Lease dated March 18, 1981, and recorded in the real property records of Elbert County at Vol. 340, Page 278.
(j) No inoperative, wrecked, abandoned, dismantled, or junked aircraft, or parts therefrom shall be parked, tied down, stored, or allowed to remain on any Lot for more than forty-eight (48) total hours unless it is enclosed in a hangar.
(k) The subdivision taxiways and runways are hereby reserved for aircraft use only. The taxiways and runways shall not be obstructed by any vehicle, fence, building, overhead utility line, or other man-made hazard to aircraft operation. Aircraft may not remain on the taxiway when not in use.
(l) The Association may suggest or require placement of taxiway fencing, gates, utility poles or other taxiway control devices in accordance with their decisions or, at the request or requirement of the Federal Aviation Administration.
(m) A main electrical power line shall be constructed at the front, rear or side of all lots in the utility easements as shown on the plat. The cost of construction of the main power line shall be the responsibility of the Declarant. The individual service line to each lot shall be the responsibility of the individual lot owner. Water and other utilities are the sole responsibility of the individual Lot owner. Well permits must be obtained from the Colorado State Engineer’s office in Denver, Colorado. All well casings shall be sealed to the first layer of sandstone by use of the Haliburton method to insure that such wells do not affect in anyway the surface waters in the surrounding areas. Each lot owner at the time of purchase of lot shall be provided with a copy of the letter with respect to the water supply for the subdivision issued by the Office of the State Engineer, Division of Water Resources. Each lot owner, by acceptance of a deed to a lot, covenants and agrees that in the event a water augmentation plan for the subdivision is approved which allows individual wells to be drilled into the Upper Dawson aquifer, each lot owner, upon issuance of a well permit for a well into the Upper Dawson aquifer for his lot, shall transfer to the homeowners association any rights, title or interest he may have in and to the Lower Dawson aquifer. All sanitary facilities shall have prior approval of the Elbert County Health Department. All utilities must be placed underground.
Section 5. Residential Lots.
(a) Each lot shall be used for one single-family dwelling. On runway lots, one aircraft hangar shall be permitted subject to the restrictions hereinafter contained. No dwelling may be placed closer than sixty (60) feet from the front property line.
(b) Residences shall contain a minimum of twelve hundred (1,200) square feet exclusive of garage, hangar, patio and deck areas. All residences shall have a garage.
(c) The area surrounding all permanent dwellings shall be adequately landscaped to provide a neat appearance. No more than a maximum of 2,500 square feet of any lot shall be irrigated.
(d) The exterior portions of all buildings except freestanding hangars shall be constructed of or finished with wood, stucco, natural stone or brick and shall be painted or stained earth tones upon completion so that all exposed surfaces shall have a finished appearance. Roof finish of all buildings shall be of homeowner discretion. Garage shall conform to the exterior of the dwelling. Aircraft hangars may be designed as an attached structure to a dwelling; however, it is suggested that all hangars be freestanding for safety reasons. Freestanding hangars shall be of standard type construction with painted exterior.
(e) No structure of a temporary character, motor home, mobile home, tent, shack, garage, barn or hangar shall be used as a temporary or permanent residence. Motor homes or tents may, however, be used for short-term recreational purposes.
(f) No commercial business or trade shall be carried on upon any Residential Lot.
(g) No commercial vehicles, trucks or motor homes shall be stored or parked on any Lot for more than forty-eight (48) total hours except in a closed garage, nor parked on any road or accessway except when engaged in transportation to or from a residential dwelling. For the purpose of these covenants, a 3/4 ton or smaller vehicle, commonly known as a pickup shall not be deemed to be a commercial vehicle or truck.
(h) No more than five (5) aircraft at a time shall be parked, tied down, stored or allowed to remain on any Lot, whether in a hangar or outside, for more than forty-eight (48) total hours, except that if the Lot is owned by a Not for Profit Corporation organized under the laws of any State of the United States, this restriction shall not apply to any aircraft owned or leased by the Not for Profit Corporation or any member of the Not for Profit Corporation.
Section 6. Commercial Lots.
(a) All business activities and uses of the Lots shall comply with the restrictions set forth on the final plat of record and shall be in accordance with the zoning adopted by Elbert. County, unless otherwise rezoned by proper, application to and approval by Elbert County.
(b) only commercial activities which are directly related to aviation shall be conducted on Lots 8 and 29. Such activities include temporary and permanent storage of aircraft, aircraft rental and instruction, fueling and maintenance of aircraft, provision of food, lodging and transportation for persons on site for aviation related reasons, club meetings for any purpose, and selling of aviation club membership, and other products or services offered by an aviation F.B.O. or aero club. In addition to aviation related activities, Lot 1 may also, be used as a commercial restaurant, convenience store (e.g., Kwik Way, etc.), automobile gas/service station or other similar commercial activity.
(c) No commercial activity conducted upon the Lots shall interfere with or in any manner conflict with the aviation activities conducted from the Common Area.
(d) Aviation fuel tanks and pumps may be maintained, and commercial fuel service operations conducted from the Commercial Lots.
(e) There is no restriction on the number of aircraft which may be hangared or tied down on the commercial lots other than reasonable safety requirements.
Section 7. Hangar Lots.
(a) Not more than five (5) aircraft may be hangared or tied down on a Hangar Lot.
(b) On each Hangar Lot there may be constructed one (1) hangar. All construction must be first approved by the Architectural Control Committee and shall be of standard aircraft hangar construction. Port-A-Port or similar type hangars shall be allowed.
(c) Except during daily operations, the hangar doors shall be kept closed.
ARTICLE VIII AMENDMENTS
The Association shall not, unless it has obtained the prior written consent of at least eighty percent (80%) of each – class of Members and one hundred percent (100%) of the First Mortgagees of Lots (based upon one (1) vote for each First Mortgage Owned):
(1) by act or omission, change, waive, or abandon any scheme of architectural control, or enforcement thereof, as set forth in this Declaration, regarding the design or maintenance of the Lots, improvements thereon, or the Common Area,
(2) by act or omission, seek to abandon, partition, subdivide, encumber, sell, or transfer any common property owned, directly or indirectly, by the Association for the benefit of the Owners (excluding the granting of permits, licenses and easements for public utilities and/or other purposes consistent with the intended use of such common property and reasonably necessary or useful for the proper maintenance or operation of the Properties or the Association,
(3) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner, or
(4) add or amend any material provisions of this Declaration, the Articles of Incorporation or Bylaws of the Association.
ARTICLE IX GENERAL PROVISIONS
Section 1. Enforcement. The Association or any Owner shall have the right 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 Association 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 2. Severability. Invalidation of any of these covenants or restrictions by judgment or court order shall in no way affect or limit any other provisions which shall remain in full force and effect.
Section 3. Conflicts of Provisions. In case of conflict between this declaration and the Articles of Incorporation or the Bylaws, this Declaration shall control.
Section 4. Condemnation. In the event proceedings are initiated by any government or agency thereof, seeking to take by eminent domain the Common Area, any part thereof or any interest therein, or any improvement thereon or any interest therein, with a value (including loss of value to the balance of the Common Area and improvements thereof) as reasonably determined by the Association in excess of $10,000.00, the Association shall give prompt written notice thereof, including a description of the part of or interest in the Common Area or improvement thereon sought to be so condemned, to all First Mortgagees of Lots, Members, and to the Declarant. The Association shall have full power and authority to enter into and to defend in said proceedings after giving all First Mortgagees of Lots Members, and Declarant at least fifteen (15) days’ prior written notice thereof.
In the event, following such proceedings, there is such a taking in condemnation or by eminent domain of a part or all of the Common Area, the award made for such taking, if such award is sufficient to repair and restore any portion of such taken Common Area, shall be applied by the Association to such repair and restoration. If such award is insufficient to repair and restore any portion of such taken Common Area, or if the full amount of such award is not expended to repair and restore such taken Common Area, the Association shall retain the net proceeds of such award to be applied against future assessments on all Lots until such award it totally dissipated.