EAGLE’S NEST DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION, made on this _________ day of _____, 1990, by AERO DRIVE FARM, INC., hereinafter referred to as the “Declarant.’
* * W I T N E S S E T H * *
WHEREAS, declarant is the owner of certain real estate situated in Wayne District, Augusta County, Virginia, to be developed under the Augusta County P-l Planned Unit Development zoning classification and said real estate i5 more fully described on the plat entitled, “Final Plat of Eagle’s Nest Phase I,” dated the day of , 1990, and prepared by Clean Water engineers, Inc., Fincastle, Virginia, and said plat to be recorded in the Circuit Court Clerk’s Office for the County of Augusta, and being a part of the real estate conveyed to Declarant by deed from, Agnes M. Messiner and W.O. Messiner, dated August 1, l986, of record in the Clerk’s Office of the Circuit Court of Augusta County in Deed Book 875, page 648.
WHEREAS, Declarant desires to convey the residential lots within the Development subject to certain conditions, covenants and reservations, as hereinafter set forth.
NOW, THEREFORE, Declarant hereby declares that the real estate shown on the aforesaid plat, exclusive of Parcels A and E and Lot 1, as shown thereon shall be held, sold and conveyed subject to the following covenants and conditions. The covenants and conditions shall run with the real property and shall be binding upon all parties having or acquiring any right, title or interest in and to all residential lots in the Development.
Section 1, “Association” shall mean and refer to Eagle’s Nest Property Association, Inc., its successors and assigns.
Section 2. “Properties” shall mean and refer to the real estate herein before described and any such additions thereto as nay hereafter be brought within the jurisdiction of the Association.
Section 3. “Roadway” shall mean the right of ways or roadway owned by the Association for the common use of the members of the Association.
Section 4. “Taxiway” shall mean any taxiway or runway within the Development owned by the Association for the common use and enjoyment of the members of the Association.
Section 5. “Open Space” shall mean open spaces owned by the Association for the common use of the Association.
Section 6. “Lot” shall mean and refer to any one of the residential lots designated and described upon the aforesaid plat being developed by Declarant.
Section 7. “Common Areas” shall mean the roadways, taxiways and open spaces that are owned or leased by the Association for the common use and enjoyment of the members of the Association, including access to runway.
Section 8. “Member” shall mean and refer to every person or entity who holds membership in the Association.
Section 9. “Owner” shall mean and refer to the record owner, whether one or more person or entities, of a fee simple title to any lot which is part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
Section 10. “Developer” shall mean and refer to Eagle’s Nest, L.P., its assigns or successors in interest.
Section 11. “Plat” shall mean the preliminary Development Plat for Eagle’s Nest lodged in the office of the Augusta County Zoning Administrator.
CONVEYANCE OF COMMON AREA
Prior to the sale of any residential lot by the Declarant, the Declarant will deed to the Association all of the area encompassed within the boundaries of the roadways, taxiways and open spaces shown on the plat, which properties shall be used by the members of said Association as hereinafter set forth for their benefit and enjoyment, as provided in this Declaration. The Association shall be incorporated under the laws of the State of Virginia.
MEMBERSHIP AND VOTING
Section 1. CLASS A MEMBERS. Class A Members shall be all record owners, whether one or more person or entities of fee simple title to any residential lot in the Development, Eagle’s Nest, including contact sellers, but excluding those having such interests merely as security for the performance of an obligation. Membership shall be appurtenant to and nay not be separated from ownership of any lot. Ownership of such lot shall be the sole qualification for membership.
Class A members shall be entitled to one vote for each lot in which they hold an ownership interest. When more than one person or entity holds such interest in any one lot, all such persons shall be members. 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 2. CLASS B MEMBERS. Class B Members shall be Eagle’s Nest, L.P., a Virginia limited partnership, its successors or assigns.
The Class B members shall have 152 votes less the number of Class A votes held by persons or entities other than Eagle’s Nest, L.P. At such time as Class A votes equal Class B votes, Class B membership shall cease and the Class B member shall have Class A votes for each lot it may own.
Section 1. MEMBER’S EASEMENT OF ENJOYMENT. Every member shall have a right and easement of enjoyment in the common areas and such easement shall be appurtenant to and shall pass with the title to every assessed Lot, subject to the following provisions:
(a) The right of the Association to dedicate or transfer all or any part of the common areas to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless approved by Members entitled to cast at least two thirds of the votes has been recorded, agreeing to such dedication or transfer and unless written notice of the proposed action is sent to every member not less than ten (10) days nor more than thirty (30) days in advance.
(b) The right of the Association, in accordance with its articles and bylaws to borrow money for the purpose of improving and maintaining the common areas.
(c) The right of the individual owners to the use of the common areas as appurtenant to said Lots.
Section 2. DELEGATION OF USE.- Any Member may delegate in accordance with the bylaws his right of enjoyment to members of his family, his tenants or contract purchasers who reside on the property.
Section 3. UTILITY EASEMENTS. The Association, by normal corporate action, may convey and grant any utility easements.
Section 4. RULES AND REGULATIONS. The Association shall further be in charge of the general control of common areas and can make any reasonable rules and regulations for the control and use of such.
COVENANT FOR ASSESSMENTS
Section 1. CREATION OF THE LIEN AND PERSONAL OBLIGATION OF ASSESSMENTS. Each owner of any residential Lot by acceptance of a deed thereof, whether or not it shall be so expressed in such deed, is deemed to covenant and agrees to pay the Association such Annual and Special Assessment as are established herein and paid in the manner hereinafter provided.
All such assessments, together with interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest thereon and costs of collection thereof, shall also be the personal obligation of the person who was the owner of such property at the time when the assessment fell due and shall not pass to his successors in title unless expressly assumed by them.. No Owner may waive or otherwise escape liability for the assessments provided for herein by non use of the Common Area or abandonment.
The Developer shall not be required to pay any assessment, including annual or special assessments, for any lot or lots that have not been sold to a third party AND improved by a single family dwelling. If the Developer buys back a lot improved by at least a single family dwelling, then the Developer shall be responsible to pay further assessments for such lot.
Section 2. LIEN FOR ASSESSMENTS. The Association shall have a lien on every Lot for unpaid assessments, annual or special, once perfected as provided for in Section 55-516 of the Code of Virginia and shall have such priority as therein set forth.
Section 3. METHOD OF ASSESSMENT. All assessments shall be levied by the Association against residential lots and collected and disbursed by the Association, The Board of Directors shall fix the amount of the assessments as provided hereinafter and set the dates such assessments shall become due.
Section 4. ANNUAL ASSESSMENTS. Annual Assessments shall consist of General and Area Assessments.
A. GENERAL ASSESSMENTS
1. Purpose – The General Assessment shall be used exclusively to promote the health, safety and welfare of the Members and in particular to improve, maintain and operate the Common Areas and facilities, including funding of appropriate reserves for future repair and replacement.
2. Basis for Assessment – For General Assessment purposes, there shall be one class of Assessable Units, all of which shall be assessed at a uniform rate, and which consists of 211 residential lots placed on record. The assessment shall be prorated on a monthly basis for any new residential lots created within the fiscal year.
3. Maximum – The Maximum Annual General Assessment rate shall be set by the Association.
4. Change in Maximum – The annual general assessment may be increased by the National Board of Directors each year by a factor of not more than a rate equal to the increase in the annual Consumer Price Index.
From and after the first day of the fiscal year immediately following the commencement of assessments, the maximum may be increased above the amount which can be set by the Board with the assent of two-thirds (2/3) of the votes at a meeting at which a Quorum is present.
B. AREA ASSESSMENTS
1. Purpose – Area Assessments shall be used for such purposes as are authorized by the Supplementary Declaration for a given Area.
2. Basis – The Supplementary Declaration shall set forth the basis by which all Assessable Units shall be assessed.
3. Maximum – The Supplementary Declaration shall set forth the maximum annual Area Assessment and methods by which such maximum may be changed.
Section 5. SPECIAL ASSESSMENTS. :
A. Capital Improvement Assessment- The Association may levy in any assessment year a Special Assessment against Assessable Units, applicable to that year and payable over not more than the next three (3) succeeding years, 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 Areas, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of the Class B member, if any, and of two thirds of the votes at a meeting at which a Special Quorum, was present. Special Assessments for Capital Improvements to Common Areas, which will primarily benefit and be maintained by the Owners of that Area, require only the approval of two-thirds (2/3) of the votes of Owners of the affected Area at a meeting of the Area Members at which a Quorum, is present.
B. Restoration Assessment- The association may levy a Restoration Assessment upon any Lot whose Owner fails to maintain such Lot in good order and repair, free of debris, or who fails to provide such maintenance funds as nay be required by the Supplementary declaration for such Lot. Restoration Assessments shall be limited to the amount necessary to meet the cost of restoration or deficiency in required funds and the cost of collection thereof.
Section 5. EFFECT OF NONPAYMENT OF ASSESSMENTS, REMEDIES OF THE ASSOCIATION. Any assessment installment not paid on its due date shall be delinquent. Thereupon, the Association shall provide Notice of such delinquency and nay (a) declare the entire balance of such Annual or Special Assessment due and payable in full; (b) charge interest from, the due date at a percentage rate no greater than the statutory maximum, such rate to be set by the Board for each Assessment period; (c) give Registered Notice to the Owner than in the event payment with accrued interest is not paid within thirty (30) days from the date of such notice, then the expressed contractual lien provided for herein shall be foreclosed; and (d) upon Registered Notice to the Owner, suspend the right of such Owner to vote or to use the recreational facilities until the assessment, accrued interest, fees and charges are paid in full.
No owner of an interest in any lot or lots shown on said plat of Eagle’s Nest shall make any request to the County of Augusta or the Virginia Department of Transportation for the construction, maintenance or repair of the roadways referred to herein and as shown on said plat.
ANNEXATION OF ADDITIONAL PROPERTIES
Additional lands may be added by Declarant as a future unit of Eagle’s Nest utilizing the roadway herein described, provided, however, that such additional lands must adjoin any of the land conveyed to Declarant by the deed referred to hereinabove and further that all of the rules, regulations and controls herein set forth shall be made applicable to any such undeveloped additional lands.
Eagle’s Nest has been created as a residential “Fly-in” community for the benefit of small aircraft owners and its aim is to benefit pilots of fixed-wing aircraft, hot-air balloons, and sail planes. All purchasers of lots in the Development shall be deemed by their acquisition of such lot to agree to the perpetual operation of the airport for the benefit of all owners of lots within the Development.
In order to protect the interests of all owners of lots within the Development, all residential lots shall be conveyed subject to the following restrictions, which shall be deemed as covenants running with the land.
Section 1. USE LIMITATION. No residential lot shall be used for any purpose other than residential purposes, (except as provided in Section 3 below) and no more than one single-family dwelling shall be placed on a residential lot. Under no circumstances may any other items including, but not limited to, cars, aircraft equipment, tools, or lawn equipment, be stored unless in an architecturally conforming aircraft hanger, garage, or storage area. Each residential lot that is improved with a dwelling shall have two off street parking spaces for motor vehicles that allow two (2) motor vehicles to be parked without being visible from, the street in front of the residential lot. Lots 21A, 21B, 22A, and 22B shall be required to have such off street parking for only one (1) motor vehicle. Any lot with frontage on a taxiway may have a paved tie down area for operable aircraft. No carports shall be permitted for the storage of aircraft or motor vehicles. ALL HANGARS, GARAGES, TIE DOWN AREAS, AND STORAGE AREAS MUST FIRST BE APPROVED BY THE ARCHITECTURAL REVIEW COMMITTEE.
Section 2. BUILDING SIZE. No single family dwelling shall be erected, altered, placed or permitted to remain on any lot which does not have a living area in the main structure, exclusive of open porches, garages and hangers, of at least 1,500.00 square feet. A minimum ground floor living area of at least 1,000 square feet shall be required for a dwelling of more than one story.
Recognizing that it is detrimental to the Eagle’s Nest community for buildings once started to remain incomplete for an extended period of time, each owner of a lot or parcel designated for use as a single family residence hereby covenants for himself, his successors and assigns, to complete the construction of any structure undertaken on said lot within one year from the commencement thereof. For the purpose of this Section, “commencement of construction” shall mean the digging of footers or the placing of foundation forms in the preparation for the pouring of the foundation. Completion of construction shall, as to any residential structure, be evidenced by issuance of a certificate of occupancy, and as to any accessory structure, shall mean visible exterior completion, including painting or other final finishing, such that the buildings shall appear to be complete to a reasonable observer. Anything hereinabove to the contrary withstanding the one year limitation as to completion shall not apply to any commercial lender which acquires title by foreclosure of a mortgage or deed in lieu of foreclosure; and any purchaser of a lot from such mortgagee shall have one year from, the date of the transfer of title from such mortgagee within which to complete any construction commenced prior to transfer, but incomplete at the time of transfer.
Section 3. OFFENSIVE USES PROHIBITED. Keeping in mind that this IS a fly-in community and that certain noises associated with the use and maintenance of airplanes are expected, no obnoxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which shall be, or become, an annoyance or a nuisance to the neighborhood. Extended run-up of aircraft engines shall only be allowed in designated areas. No commercial activity of any nature shall be permitted within the residential area at any time except as pertains to the construction and sale of single family homes within Eagle’s Nest. However, provided that there is no violation of the Augusta County Zoning Ordinances, a person residing in Eagle’s Nest may maintain therein an office for his or her personal professional use, but no employees or persons other than a resident of Eagle’s Nest shall engage therein in any such activities and no such office shall be advertised, held out, or used as 2 place for service to customers, clients or patients.
Section 4. ANIMALS. No animals, livestock or poultry of any kind shall be raised, bred, or kept-on any lot, except that household pets may be kept thereon in reasonable number. No pets are permitted to run loose outside the lot nor may pets be kept, bred,-or maintained for any commercial purposes.
Section 5. EXPOSED VEHICLES. No house trailer, boat, motor home or other similar vehicle shall be parked or placed on any lot at any tine for any period greater than three days. No disassembled aircraft or other vehicle above shall be kept, parked or stored on any lot except inside a fully enclosed hangar or garage. No disassembled aircraft shall be kept, parked or stored in any open area.
Section 6. TRASH AND TRASH CONTAINERS. No unused building materials, junk or rubbish shall be left exposed on said property except during actual building operations, and no worn-out or discarded automobiles, trucks, commercial vehicles, trailers, house trailers, aircraft, machinery, boats, or other vehicles or parts thereof shall be stored on any lots. No portion of any lot shall be used for the storage of junk or waste materials. All garbage or trash containers on all residential lots must be placed in walled in areas, and must be hidden from view by a structural wall or fence so they shall not be visible from, the adjoining properties or the street.
Section 7. FIREARMS. There shall be no discharging of firearms on the premises at any time.
Section 8. FUEL STORAGE. No fuel (other than hone heating fuel or fuel in vehicle) in excess of five (5) gallons shall be kept or stored either above or below ground on any lot.
Section 9. ADJACENT RUNWAY HOMESITES. Taxiways as shown on the plan referred to herein or as described by the Developer shall not be used by any vehicle other than aircraft, service vehicles or emergency.
Section 10. AIRCRAFT TRAFFIC. Declarant, its successors, assigns, or designated representative, reserves the right to establish special traffic and safety rules for the handling of aircraft traffic on the ground, the utilization of taxiways by vehicles, the parking of aircraft, engine run-up, and other activities related to the community’s needs. Such rules and regulations may be posted in the airport office.
Section 11. UTILITY EASEMENT. The Declarant reserves unto itself, its successors and assigns, or designated representative, a perpetual, alienable or releasable easement over, upon, across and under each lot for the erection, maintenance, installation and use of underground electrical and telephone service, wires, cables, conduits, sewers, water mains and other suitable equipment for the conveyance and use of electricity, telephone equipment, cable television, gas, sewer, water or other public conveyance or utilities Declarant may further cut drain ways for surface water wherever and whenever such action may appear to Declarant to be necessary in order to maintain standards of health, safety and appearance. It further reserves the right to locate pumping stations and tanks within residential areas on any walkway, or any residential lot designated for such use on the applicable plat of a residential subdivision, or to locate same upon any adjacent lot with the permission of the owner of such adjacent lot. Such rights may be exercised by Declarant, but this reservation shall not be considered an obligation of the Declarant to provide or maintain any such utility or service.
Section 12. ENFORCEMENT. If anyone shall violate or attempt to violate any of the covenants, restrictions, agreements or conditions contained herein, any other person or persons owning any real estate property situated in the subdivision of the Developer, its successors, assign, designee or property owners’ association, after giving ten (10) days written notice to such a person or person violating or attempting to violate such covenants, restrictions, agreements or conditions without discontinuance thereof, may commence proceedings at law or in equity to prevent the violating party from, so doing and/or to recover damages for such violation or violations. All costs of such proceeding, including reasonable attorney’s fees, shall be borne by the person violating or attempting to violate these restrictions.
Section 13. AMENDMENTS. Developer shall have the right and authority to modify and amend the covenants and restrictions without liability or notice to or joinder of any other party providing such modification and amendments do not establish covenants and restrictions which are less restrictive than those contained above. No house, hangar, garage, tennis court or pool which is complete or substantially complete at the time of the adoption of an amendment and which conforms to the covenants and restrictions prior to such amendment shall be rendered nonconforming by the adoption of an amendments.
Eagle’s Nest is designed as an intimate residential community with strict architectural controls which allows aircraft owners and pilots convenient access to their planes. To insure that the property will be developed harmoniously and that consistency is maintained throughout the Development, an Architectural Review Board will formulate, review and control a comprehensive landscape plan, street lighting, signs, fencing, parking and site improvements including structures of all types.
The initial Architectural Review Board shall consist of three (3) members, Paul B. Bryce, Jewel Bryce and John W. Rust, or their designees. At such time as the Development is substantially completed (at least 75%), Paul B. Bryce, Jewel Bryce and John W. Rust, or their designees, may relinquish the powers of the Architectural Review Board to the Association. At such time, the Board of Directors shall appoint a committee of three persons to constitute the Architectural Review board and shall promulgate such guidelines as may be necessary to implement the architectural review process not inconsistent with established practice.
The Architectural Review Board shall regulate the external design, appearance, and locations of the Properties and improvements thereon in such a manner so as to preserve and enhance values and to maintain a harmonious relationship among structures and the natural vegetation and topography. In furtherance thereof, the Board shall;
1. Review and approve, modify or disapprove, within forty-five (45) days, all written applications or Owners and of the Association for initial construction improvements or additions. Notice of any modifications or disapproval’s of applications shall be by Registered Notice. All applications for modifications and change to a Lot which are not in accordance with the original plan for such Lot, or which do not meet the adopted standard, shall be acted upon by the Architectural Review Board.
2 Periodically make external inspection of the Properties for compliance with architectural standards and approved plans for alterations; and
3. Adopt architectural guidelines and programs; and
4. Adopt procedures for the exercise of its duties and enter them, in the Book of Resolutions; and
5. Maintain complete and accurate records of all actions taken.
Section 1. ENFORCEMENT. The Association, or any Owner, shall have the right to endorse, by a 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 endorse 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 one of these covenants or restrictions by judgment or court order shall not affect any other provisions which shall remain in full force and effect.
Section 3. 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 Association or by the Owner of any residential lot subject to this Declaration. The covenants and restrictions of the Declaration may be amended by an instrument signed by no less than seventy-five percent (75%) of the lot owners and any such amendment must be properly recorded.