Article IX – Construction & Architectural Control

Section 1. Construction of Improvements.

(a)       Notwithstanding anything contained within this Declaration to the contrary, no Owner shall undertake on any Home Site (i) the location of any completed Improvement(s) (as hereinafter defined) or any construction of any Improvement(s), which shall include, in addition to the actual erection of a dwelling and its appurtenances, any staking, clearing, excavation, grading of other site work, (ii) any landscaping, plantings or removal of plants, trees or shrubs other than general maintenance of landscaping located pursuant to previously approved landscaping plans, or (iii) any modification, change or alteration of any Home Site or dwelling thereon, whether functional or decorative, unless and until the type or size thereof, materials to be used in construction, exterior color scheme, exterior lighting plans, specifications and details thereof, and site plans, showing the proposed location of the dwelling, garage, and driveways upon the lot, shall have been approved in writing by the Architectural Review Committee, and copies of said approved plans, specifications and details shall have been filed with said Architectural Review Committee. Generally, homes must be traditional in design and of construction materials and with roof lines consistent with the Design Guidelines (as hereinafter defined) as may be established by the Architectural Review Committee from time to time. In determining acceptable construction materials, which determination shall be in the Architectural Review Committee’s sole discretion, the Architectural Review Committee may take into consideration the desire for high quality aesthetic appeal and long term value both in utility and appearance. The Architectural Review Committee may refuse approval of plans, location, exterior color or finish or specifications for any reason, including purely aesthetic reasons, which in the sole discretion of the Architectural Review Committee shall be deemed sufficient.

(b)       The term “Improvement(s)” as used throughout this Declaration shall mean and include all buildings, storage sheds or areas, roofed structures, parking areas, loading areas, trackage, fences, walls, hedges, mass plantings, arbors, trellises, gazebos, poles, driveways, ponds, lakes, changes in grade or slope, site preparation, swimming pools and related structures, tree houses, children’s playhouses, signs, exterior illumination, exterior antennae, earth satellite stations, microwave dishes, solar panels or other similar receiving, transmission or energy generating equipment, changes in any exterior color or shape and any new exterior constructed or exterior improvement exceeding $1,000.00 in cost which may not be included in any of tile foregoing. The definition of Improvement(s) does not include garden shrub or tree replacement or any other replacement or repair of any magnitude which ordinarily would be expensed in accounting practice and which does not change exterior colors or exterior appearances. The definition of Improvements does include both original Improvements and all later changes and repairs to Improvements.

(c)       The Declarant expressly reserves unto the Architectural Review Committee, the sole and exclusive right to approve the grade at which any dwelling shall hereafter be erected, or placed on a Home Site (subject only to compliance with the regulations of public authorities having control thereof).

(d)         The procedure to be followed by an Owner in obtaining approval from the Architectural Review Committee is set forth in Section 22 of this Article IX.

Section 2. Floor Areas. Stories.         The total heated floor area of the main dwelling on each Home Site, exclusive of porches, terraces, garages, basements, attics and outbuildings, shall contain not less than the following:

Type of Home                         Square Footage

1‑1/2, 2 or 2‑1/2 Story            1450

1 story                                       1450

Section 3. Building Setback Lines.

(a)       Main Buildings on Home Sites. Unless a greater setback is required by applicable zoning laws and other governmental requirements, the main building on each Home Site shall not be located on any Home Site nearer to the Home Site boundary line than the building setback line specified as follows:

Front Setback ‑ twenty‑five (25) feet from street right‑of‑way

Sideline ‑ six (6) feet one side and eight (8) feet other side (must maintain a 14′ building separation)

Rear Setback ‑ twenty‑five (25) feet for Interior Lots, forty (40) feet for Exterior Lots

If the rear lot line of a corner Home Site is also the side lot line of an adjacent Home Site to the rear, then the side lot line of the corner Home Site on the street shall be fifty percent of the required Front Setback for the adjoining Home Site as required by applicable zoning ordinances and as shown on the recorded plat for the Property. “Exterior Lots” shall mean those Home Sites (if any) located within the Property which are located on the outer boundary of the Beverly Crest Property. “Interior Lots” shall mean all other Home Sites located within the Property. The above listed setbacks and setbacks shown on any recorded map of the Property may be modified by the Architectural Review Committee to recognize any special topography, dimensional factors or other site‑related conditions.

Section 4. New Construction. Construction of new buildings only shall be permitted on a Home Site, it being the intent of this covenant to prohibit the moving of any existing building onto a Home Site and remodeling or converting the same into a dwelling.

Section 5. Diligent Construction. All construction, landscaping or other work which has been commenced on any Home Site located within the Property must be continued with reasonable diligence to completion and no partially completed houses or other improvements shall be permitted to exist on any Home Site, except during such reasonable time period as is necessary for completion. Any damage to the street, curb or sidewalk or to any part of any Common Area or utility system caused by an Owner or Owner’s builder shall be repaired by such responsible Owner. The Owner of each Home Site shall at all times keep adjacent public and private areas free from any dirt, mud, garbage, trash or other debris which is occasioned by construction of improvements. Declarant, upon ten (10) days written notice, may provide for the cleaning of public and private areas due to the activities of the Owner or Owner’s builder and may assess the Owner a. reasonable charge not to exceed the actual cost for such cleaning. Every builder constructing improvements within the Properties shall, consistent with standard construction practices, keep all portions of the Home Site free of unsightly construction debris and shall at all times during construction either provide dumpsters for the containment of garbage, trash or other debris which is occasioned by construction of Improvements or take other measures consistent with standard construction practices necessary to keep the Home Site free of garbage, trash or other debris which is occasioned by the construction of Owner’s Improvements. All Owners and Owners’ builders shall comply with such rules or the Association as are from time to time adopted with respect to construction of Improvements. All Owners shall be responsible to insure that any contractor employed by it complies with all Builder’s Rules adopted by the Association from time to time.

Section 6. Location of Improvements. The Architectural Review Committee shall have the right to control absolutely, (subject to the provisions of zoning ordinances of the appropriate governmental authorities), the precise site and location of any building or structure on any Home Site for reasons which may in the sole and uncontrolled discretion and judgment of the Architectural Review Committee be sufficient. Such location shall be determined only after reasonable opportunity is afforded the Owner of the Home Site in question to recommend a specific site.

Section 7. Landscaping,

(a)       General. Except for the building pad, driveways and sidewalks on each Home Site, the surface of each Home Site shall be of grass or other live foliage and/or ground cover and such grass, foliage and ground cover shall be neatly maintained at all times.

(b)         Driveways. The Architectural Review Committee may, from time to time, establish guidelines for the color, location, alignment and materials to be used for driveways on each Home Site.

(c)       Landscape Guidelines. The Architectural Review Committee reserves the right to promulgate and amend from time to time landscape guidelines (referred to hereinafter as tile “Landscape Guidelines”) which shall establish approved standards, methods and procedures for landscape management on the Property and such authorized standards, methods and procedures may be utilized by the Owners without prior written approval by the Architectural Review Committee. The Architectural Review Committee may also adapt one or more typical landscape plans consistent with the Landscape Guidelines which may be selected by an Owner. No trees measuring Five inches (5″) or more in diameter at a point two feet (2′) above ground level nor any arbors, trellises or gazebos may be removed without the prior written approval of the Association. Approval for the removal of trees located within ten feet (10′) of the main dwelling or accessory building or within ten feet (10′) of the approved site for such building will be granted unless such removal will substantially decrease the attractiveness of the Property.

Section 8. Sediment Control. Sufficient sediment control measures including, but not limited to, installation and maintenance of silt fences, straw base fences, storm water inlet protection or retention pond and temporary seeding, to the extent deemed reasonably necessary by the Declarant shall be taken by the Owner or Owner’s builder to ensure that all sediment resulting from any land disturbance or construction operation is retained on the Home Site in question. All sediment control measures must be maintained until such Home Site has been permanently stabilized with respect to soil erosion.

Section 9. Swimming Pools. No swimming pool, hot tub or jacuzzi shall be installed or erected on any Home Site until the plans and specifications for same showing the nature, kind, shape, materials, height and location of the same shall have been approved by the Architectural Review Committee. No swimming pool shall be constructed on a Home Site in front of a dwelling or so that any portion of such pool protrudes above the finish grade of the adjoining ground as found prior to such construction; provided, however, that when the average slope of a Home Site exceeds twenty-five percent (25%), the Architectural Review Committee may approve an exception, subject to the following limitations: (a) the pool shall be located with its longer dimension parallel to the natural contour line; (b) not more than fifty percent (50%) of the pool shall be above the finished level of the adjoining ground; and (c) at no point shall any part of the pool project more than two feet (2′) above the finished level of the adjoining ground as found prior to construction. The pool itself and pool equipment shall be screened, housed or stored underground. All governmental requirements and restrictions applicable to swimming pools and similar structures shall be applicable to the construction of swimming pools and similar structures on any Home Site and approval by the Architectural Review Committee shall in no way relieve the Owner of the responsibility and obligation to comply with such governmental requirements.

Section 10. Fences and Walls. No fence, hedge or wall shall be erected, placed or altered on any Home Site where such fence, hedge or wall extends beyond the front facade of the main house or garage. All walls shall be constructed of brick, wrought iron, wood (excluding split rail), stone or stucco and, unless approved by the Architectural Review Committee shall not exceed six feet (6′) in height. Owners must obtain from the Architectural Review Committee its written approval of any proposed fence, hedge or wall, including approval of the location and materials, before erecting or installing the same. The Architectural Review Committee may adopt a standard design for approved fences and/or walls.

Section 11. Garages. Any garage located upon any Home Site must be consistent in design with the overall architectural design of the dwelling on the Home Site as determined by the Architectural Review Committee. No carports shall be permitted on any Home Site.

Section 12. Sight Line Limitations. To the extent that governmental requirements shall not impose a stricter standard, no fence, wall, hedge, or shrub planting which obstructs sight lines at elevations between two (2) and six (6) feet above roadways shall be placed or permitted to remain on any corner Home Site within the triangular area formed by the street property lines and line connecting them at a point thirty‑five feet (35′) from the intersection of the street line, or in the case of a rounded street property corner, from the intersection of the street property lines, as extended. These sight line limitations are also shown on the recorded plat of the Property. The same sight line limitations shall apply on any Home Site within ten feet (10′) from the intersection of a street property line with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such distances of such intersection unless the foliage line is maintained at sufficient height to prevent obstruction of sight lines.

Section 13. Septic Tanks and Wells. No septic tanks shall be installed, used or maintained on any Home Site. No wells shall be installed, used or maintained on any Home Site for human domestic water consumption nor shall any well be connected in any manner whatsoever to the water mains, laterals and piping serving the dwelling which shall furnish domestic water from sources beyond the boundary lines of the Home Site. Notwithstanding the foregoing prohibition, the Architectural Review Committee may permit in writing the installation, use and maintenance of septic tanks or wells.

Section 14. Air Conditioning Equipment. No air conditioning or heating apparatus shall be installed on the ground in front of any residence on a Home Site. No air conditioning or heating apparatus shall be attached to any front wall of a residence on a Home Site. No air conditioning or heating apparatus shall be installed on the side wall of a residence on a Home Site unless the same shall be screened from view from the street abutting such Home Site and any adjacent Home Site.

Section 15. Antennae and Solar Panels. Except as hereinafter provided, no exterior antennae, earth satellite station, microwave dish, solar panels or other similar receiving, transmission or energy generating equipment may be constructed, placed or maintained on any Home Site unless approved by the Architectural Review Committee. Satellite dishes of less than 19 inches in diameter for reception of satellite television signals shall be allowed provided that the location and design of any such satellite dish and related equipment shall be subject to prior approval by the Architectural Review Committee.

Section 16. Gas Meters. Unless otherwise approved by the Architectural Review Committee, no gas meters shall be set in the front of a residence of a Home Site unless such meter is of an underground type.

Section 17. Mail Boxes and Newsletter or News Box. No mailbox, newspaper or news box shall be erected or maintained on any Home Site or within any street right‑of‑way unless approved by the Architectural Review Committee. The Architectural Review Committee may adopt a Standard design for approved mailboxes and news boxes.

Section 18. No Clothes Lines. No clothes lines of any description or type, or the outside drying of clothes shall be allowed on the outside of the dwelling unit on any Home Site.

Section 19. Hoses and Pipes. Except for the temporary use of hoses and the like which are reasonably necessary in connection with normal lawn maintenance and pipe clean‑outs, no hose, water pipe, sewer pipe, gas pipe, drainage pipe, television cable or other similar transmission line shall be installed or maintained upon any Home Site above the surface of the ground, unless such installation is expressly approved by the Architectural Review Committee.

Section 20. No Subdivision of Home Sites. Except for Home Sites owned by Declarant, no Home Site shall be subdivided by sale, lease or otherwise so as to reduce the total Home Site area as shown on the recorded map or plan; however, portions of Home Sites may be added to other Home Sites so long as the total number of Home Sites is not increased. Declarant reserves the right to waive this covenant and permit the subdivision of two adjoining Home Sites by the conveyance by the Owner of one such Home Site of a portion of such Home Site to the Owner of the adjoining Home Site provided that Declarant determines in its own discretion that the Home Sites resulting’ therefrom would be suitable for development and harmonious with the development of the Property.

Section 21. Governmental Requirements. Nothing herein contained shall be deemed to constitute a waiver of any governmental requirements applicable to any Home Site and all applicable governmental requirements or restrictions relative to the construction of improvements on and/or use and utilization of any Home Site shall continue to be applicable and shall be complied with in regard to the Home Sites.

Section 22. Procedure. No Improvements of any kind or nature shall be erected, remodeled or placed on any Home Site until all plans and specifications therefor and a site plan therefor have been submitted to and approved in writing by the Architectural Review Committee, as to:

(i)        quality of workmanship and materials, adequacy of site dimensions and alignment of main elevation with respect to nearby streets;

(ii)       conformity and harmony of the external design, color, type and appearance of exterior surfaces and landscaping; and

(iii)      other standards set forth within this Declaration (and any amendments hereto) or as may be set forth within bulletins promulgated by the Architectural Review Committee, or matters in which the Architectural Review Committee has been vested with the authority to render a final interpretation and decision.

Final plans and specifications for all Improvements proposed to be constructed on a Home Site shall be submitted in duplicate to the Architectural Review Committee for approval or disapproval. The Architectural Review Committee is authorized to request the submission of samples of proposed construction materials. At such time as the plans and specifications meet the approval of the Architectural Review Committee, one (1) complete set of plans and specifications will be marked “Approved” and returned to the Home Site Owner or his designated representative and the remaining set will be filed in the offices of the Architectural Review Committee. If found not to be in compliance with these covenants, conditions and restrictions or if found to be otherwise unacceptable to the Architectural Review Committee pursuant hereto, one (1) set of plans and specifications shall be returned to the Home Site Owner marked “Disapproved,” accompanied by a statement in reasonable detail of items found not to be in compliance with these covenants, conditions and restrictions or otherwise being so unacceptable. Owner thereafter shall resubmit, in accordance with the provisions of this Section 22, such plans and specifications setting forth the required changes to the Architectural Review Committee for its approval. Any modification or change to the approved set of plans and specifications must again be submitted in duplicate to the Architectural Review Committee for its inspection and approval. The Architectural Review Committee’s approval or disapproval, as required herein, shall be in writing. Once the Architectural Review Committee has approved the plans and specifications for the Improvements, the construction of such Improvements must be promptly commenced and diligently pursued to completion and if such construction is not commenced within twenty‑four (24) months following the date of approval of the plans and specifications therefore by the Architectural Review Committee, such approval shall be deemed rescinded and before construction of Improvements can thereafter be commenced on the Home Site in question, the plans and specifications therefor must again be approved by the Architectural Review Committee pursuant to this Article IX.

The final plans and specifications as referred to in the preceding paragraph shall mean the following:

(i)          Final floor plans at a scale of one‑forth inch (1/4″) equals one foot (1′);

(ii)         Final elevations showing all sides;

(iii)       All material selections and color selections; and

(iv)        Final survey.

In addition to the procedure described in this section, and in recognition of the cost involved in producing the final plans and specifications, the Home Site Owner may request a preliminary review of the design of the Improvements upon the submission of the following:

(i)          Schematic floor plans at a scale of one‑forth inch (1/4″) equals one foot; and

(ii)         Final elevations showing all sides; and

(iii)       All material selections and color selections; and

(iv)        Schematic site plan.

The Architectural Review Committee may from time to time publish and promulgate architectural standards bulletins which shall be fair, reasonable and uniformly applied in regard to the Home Sites and shall carry forward the spirit and intention of these covenants, conditions and restrictions. The Architectural Review Committee shall be responsive to technological advances and general changes in architectural design and materials and related conditions in future years and use its best efforts to balance the equities between matters of taste and design and use of private property. Such bulletins shall supplement these covenants, conditions and restrictions and are incorporated herein by reference. The Architectural Review Committee may refuse approval of plans, location, exterior color or finish or specifications for any reason, including purely aesthetic reasons, which in the sole discretion of the Architectural Review Committee shall be deemed sufficient.

Section 23. Jurisdiction. The Architectural Review Committee is authorized and empowered to consider and review any and all aspects of the construction of any Improvements on a Home Site which may, in the reasonable opinion of the Architectural Review Committee, adversely affect the living enjoyment of one or more Owners or the general value of the Property or the Project.

Section 24. Enforcement.

(a)       The Association shall have the specific right (but not obligation) to enforce the provisions contained in this Article IX and/or to prevent any violation of the provisions contained in this Article by a proceeding at law or in equity against the person or persons violating or attempting to violate any such provisions.

(b)       As to nonconforming or unapproved Improvements, the Master Association or Association may require any Owner to restore such Owner’s Improvements to the condition existing prior to the construction thereof, including, without limitation, the demolition and removal of any unapproved Improvements if such Improvements were commenced or constructed in violation of this Article. In addition, the Association may, but has no obligation to do so, cause such restoration, demolition and removal and levy the amount of the cost thereof as a special individual assessment against the Home Site upon which such Improvements were commenced or constructed.

Section 25. Failure of the Architectural Review Committee to Act. If the Architectural Review Committee fails to approve or disapprove any plans and specifications and other submittals which conform (and which relate to Improvements which will conform) with the requirements hereof or to reject them as being inadequate or unacceptable within fifteen (15) days after receipt thereof, and provided such submittal was a full and complete submittal of all items that were to have been submitted to the Architectural Review Committee, and provided the Architectural Review Committee shall again fail to approve or disapprove of such plans, specifications and other submittals within ten (10) days after additional written request to act on such items is delivered to the Architectural Review Committee following the passage of such first above described fifteen (15) day period, it shall be conclusively presumed that the Architectural Review Committee has approved such conforming plans and specifications and other submittals, except that the Architectural Review Committee has no right or power, either by action or failure to act, to waive or grant any variances relating to any mandatory requirements specified in this Declaration, except where variances shall be expressly permitted herein. If plans and specifications or other submittals are not sufficiently complete or are otherwise inadequate, the Architectural Review Committee may reject them as being inadequate or may approve or disapprove part, conditionally or unconditionally, and reject the balance.

Section 26. Limitation of Liability. Neither the Architectural Review Committee nor the members thereof nor the Association nor Declarant shall be liable in damages or otherwise to any Owner by reason of mistake of judgment, negligence or nonfeasance arising out of or in connection with any submittal for approval or disapproval or failure to approve or disapprove any plans or specifications. Every person who submits plans or specifications, and every Owner agrees that he will not bring any action or suit against Declarant, the Association, the Architectural Review Committee, the Board of Directors, or the officers, directors, members, employees and agents of any of them, to recover any such damages and hereby releases, remises and quitclaims all claims, demands and causes of action arising out of or in connection with any judgment, negligence or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands and causes of action not known at the time the release is given.

Section 27. Design Guidelines. The Architectural Review Committee may, from time to time, publish and promulgate Design Guidelines (herein so called), and such Design Guidelines shall be explanatory and illustrative of the general intent of the development of the Property and are, intended as a guide to assist the Architectural Review Committee in reviewing plans and specifications. In any event, such Design Guidelines shall not be binding upon the Architectural Review Committee and shall not constitute, in every event, the basis for approval or disapproval of plans, specifications and other materials submitted to the Architectural Review Committee of approval.

Section 28. Variances. Upon submission of a written request for same, the Architectural Review Committee may, from time to time, in its sole discretion, permit Owners to construct, erect or install improvements which are in variance with the setback requirements, architectural standards or similar provisions of this Declaration or Supplemental Declarations which may be promulgated in the future. In any case, however, such variances shall be in basic conformity with and shall blend effectively with the general architectural style and design of the community and shall not materially change the scheme of restrictions herein set forth. Written requests for variances shall be deemed to be disapproved in the event the Architectural Review Committee has not expressly and in writing, approved such request within thirty (30) days of the submission of such requests. No member of tile Architectural Review Committee shall be liable to any Owner for any claims, causes of action or damages arising out of the grant or denial of any variance to any Owner. Each request for a variance submitted hereunder shall be reviewed separately and apart from other such requests and the grant of a variance to any Owner shall not constitute a waiver of the Architectural Review Committee’s right to strictly enforce the covenants, restrictions and architectural standards provided hereunder, against any other Owner.

Section 29. Review Fee and Address. No review fee shall be imposed for initial submittals of plans and specifications for Improvements to be located on an Owner’s Home Site; provided, however, following the initial review and approval (or disapproval) process, the Association Board may impose a review fee, not to exceed $50.00 for each resubmittal of plans and specifications to the Architectural Review Committee. The address of the Architectural Review Committee shall be the principal place of. business of the Master Association from time to time designated in writing to its Board of Directors. Such address shall be the place of the submittal of any plans and specifications and the place where the current rules and regulations, if any, of the Architectural Review Committee shall be kept.

Section 30. No Liability for Design Defects. Plans and specifications are not approved for engineering or structural design or quality of materials, and by approving such plans and specifications neither Declarant, the Architectural Review Committee, the members thereof, the Master Association nor the Association assumes liability or responsibility therefor, or for any defect in any structure constructed from such plans and specifications.

Section 31. Utilities. All utilities and utility connections shall be located underground, including electrical and telephone cables and wires. Unless otherwise required by the applicable public utility, transformers, electric, gas or other meters of any type, or other apparatus shall be located at the rear of the buildings constructed on Home Sites or, if approved by the Architectural Review Committee in writing, located elsewhere on the Home Site provided they are adequately screened as required by the Architectural Review Committee in accordance with the provisions of this Declaration. Each Owner shall provide the company providing telephone service to the Owner’s Howe Site with a fifteen (15) volt AC‑15/20 AMP receptacle in a water‑proof box on an appropriate exterior wall upon request.