06SN0178-MAR8
April 26, 2006 BS
ADDENDUM
06SN0178
The Reeds Landing Corporation
Matoaca Magisterial District
Ettrick Elementary, Matoaca Middle and Matoaca High Schools Attendance Zones
North line of Hickory Road
REQUEST: Rezoning from Agricultural (A) to Residential (R-15).
PROPOSED LAND USE:
A single-family residential subdivision with a minimum lot size of 15,000 square
feet is planned. A maximum of 330 dwelling units would be permitted, yielding a
density of approximately 1.6 dwelling units per acre. (Proffered Condition 5)
On April 26, 2006, the applicant submitted an additional proffered condition requiring
recordation of restrictive covenants consistent with those applicable to Stoney Glen South. It
should be noted that the County will not be responsible for enforcement of the covenants but will
only ensure their recordation. Once recorded, the covenants can be amended (Proffered
Condition 9). It is staffs opinion that the covenants fail to address the Commission's concerns
relative to provision and location of open space, density, sidewalks and housing quality; lack of
infrastructure; and timing of the development.
In addition, a revision to Proffered Condition 3 addressing construction of the North/South
Arterial was submitted. At the time the Commission considered the request, the proffer required
construction of a minimum of 1,700 feet of the North/South Arterial from Hickory Road. The
revision requires construction of only 650 feet of the North/South Arterial from Hickory Road.
In addition, the proffer now addresses construction of the road from that point to the Resource
Protection Area (RP A) along the northern property line. The proffer would not require
construction of the road until there are only forty-nine (49) remaining lots, of the total 330
permitted lots, to be recorded.
The Transportation Department continues to recommend denial of this request. The additional
and revised proffers fail to guarantee the construction of the entire length of the North/South
Arterial through the entire length of the subject property in a timely manner. It is possible that
280 lots will be recorded and be the ultimate build out of the project and, therefore, there will be
Providing a FIRST CHOICE community through excellence in public service
no requirement for the construction of the entire length of the arterial across the property.
Further, the proffer only requires construction of the road to the RPA and not to the property line
(a distance of approximately 100 feet). The general policy is to require that either the road be
built to the property line or, at a minimum, bonded for construction to the property line.
(NOTE: IN ORDER FOR THE BOARD TO CONSIDER THE FOLLOWING AMENDED
AND ADDITIONAL PROFFERS, THE PROCEDURES MUST BE WAIVED SINCE THE
PROFFERS WERE NOT SUBMITTED PRIOR THE ADVERTISEMENT OF THE CASE.)
PROFFERED CONDITIONS
3. Road Improvements.
(1) To provide an adequate roadway system, the developer shall provide the
following road improvements with initial development of the property:
a. Construction of a two-lane road for the North/South Arterial, based on
VDOT Urban Minor Arterial Standards (50 MPH) with modifications
approved by the Transportation Department, from Hickory Road to the
north approximately 650 feet. The exact length of this improvement shall
be approved by the Transportation Department.
g. With the recordation of the 281 st lot in the subdivision, the construction of
a two-lane road for the North/South Arterial, based on VDOT Urban
Minor Arterial Standards (50 MPH) with modifications approved by the
Transportation Department from a point 650 feet north of Hickory Road
3,350 feet more or less to the RPA line along the property line branch.
9. HOMEOWNER ASSOCIATION COVENANTS
At a minimum, the following restrictive covenants shall be recorded prior to, or in
conjunction with, the recordation of a subdivision plat, provided, however, that
references to "Stoney Glen South," the beginning dates and the subject property
may be modified to reference the then current developer/owner of the subject
property, the name of this development and the appropriate dates.
WITNESSETH;
WHEREAS, the Developer is the owner of the real property described
in Article II of this Declaration and desires to create thereon a planned
development residential community to be known as "Stoney Glen South";
WHEREAS, the Developer desires to provide for the preservation of
values and for the maintenance of common facilities and services and for a
vehicle for the administration and enforcement of covenants and restrictions;
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WHEREAS, the Developer has caused the Association to be incorporated
under the laws of the Commonwealth of Virginia for the purpose of exercising the
functions aforesaid, and which are hereinafter more fully set forth;
NOW THEREFORE, the Developer declares that the real property
described in Article II, and such additions thereto as may hereinafter be made
pursuant to Article II hereof, is and shall be held, transferred, sold, conveyed,
given, donated, leased, occupied and used subject to the covenants, restrictions,
conditions, easements, charges, assessments ("Assessments"), affirmative
obligations, and liens (all hereinafter sometimes referred to as ("Covenants")
hereinafter set forth.
ARTICLE I
DEFINITIONS
When used in this Declaration or any supplemental declaration (unless the
context shall clearly indicate otherwise) the following words and terms shall have
the following meanings:
(a) "Association" shall mean and refer to Stoney Glen South
Association, Inc., a Virginia non-profit, non-stock corporation, its successors and
aSSIgns.
(b) "Stoney Glen South" shall mean and refer to the lands in
Chesterfield County, Virginia, which are shown as a part of Stoney Glen South on
the Developer's Master Plan as revised from time to time.
( c) "Developer" shall mean Stoney Glen South Limited Partnership, a
Virginia Limited Partnership, its successors and assigns.
(d) The "Properties" shall mean and refer to the Existing Property
described in Article II hereof, and additions thereto as are subjected to this
Declaration or any Supplementary Declaration under the provisions of Article II
hereof.
( e) "Residential Lot" shall mean any subdivided parcel of land located
within the Properties which parcel is intended for use as a site for a Single Family
Detached Dwelling as shown upon any recorded final subdivision map of any part
of the Properties. No parcel shall, however, be classified as a Residential Lot for
the purpose of calculating votes or assessments, nor placed upon the Registration
List, until the first day of the quarter of the year following (I) the date of
recording of the Plat in the Clerk's Office of the Circuit Court of Chesterfield
County, Virginia ("Clerk's Office"), showing such lot, and (ii) the date of
placement of such lot on the Developer's inventory list oflots available for sale to
purchasers.
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06SN0178-APR26-ADDENDUM-BOS
(f) "Registration List" shall mean and refer to the official index
prepared by the Assodation of all Residential Lots within the Properties. The
Developer shall submit to the Association a listing of any parcel or parcels of land
which shall become eligible to be added to the Registration List no later than one
(1) day prior to the commencement of the quarter of the year during which said
parcel or parcels of land shall be classified as a Residential Lot.
(g) "Family Dwelling Unit" shall mean and refer to any Single Family
Detached Dwelling constructed upon any Residential Lot located within the
Properties.
(h) "Owner" shall mean and refer to the Owner as shown by the real
estate records in the Clerk's Office, whether it be one (1) or more persons, firms,
associations, corporations, or other legal entities, of fee simple title to any
Residential Lot or parcel of land situated upon the Properties but, notwithstanding
any applicable theory of a deed of trust, shall not mean or refer to the mortgagee
or holder of a deed of trust, its successors or assigns, unless and until such
mortgagee or holder of a deed of trust has acquired title pursuant to foreclosure or
a proceeding or deed :in lieu of foreclosure; nor shall the term "Owner" mean or .
refer to any lessee or Tenant of an Owner. In the event that there is recorded in
the Clerk's Office a long-term contract of sale covering any Lot or parcel of land
within the Properties, the Owner of such Residential Lot or parcel of land shall be
the Purchaser under said contract and not the fee simple title holder. A long-term
contract of sale shall be one where the Purchaser is required to make payments for
the Property for a period extending beyond nine (9) months from the date of the
contract and where the Purchaser does not. receive title to the Property until all
such payments are made, although the Purchaser is given the use of said Property.
(i) "Tenant" shall mean and refer to the lessee under a written
agreement for the rent and hire of a Family Dwelling Unit in Stoney Glen South..
G) "Member" shall mean and refer to all those Owners who are
Members of the Association as defined in Section 1 of Article III.
(k) "Master Plan" shall mean and refer to the drawing which
represents the conceptual plan for the future development of Stoney Glen South.
Since the concept of the future development of Stoney Glen South is subject to
continuing revision and change by the Developer, present and future references to
the "Master Plan" shaH be references to the latest revision thereof.
(1) "Intended for Use" shall mean the use intended for various parcels
within the Properties as shown on the Master Plan or the use to which any
particular parcel of land is restricted by covenants expressly set forth or
incorporated by reference in deeds by which the Developer has conveyed the
property.
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(m) "Common Properties" shall mean and refer to those tracts of land
with any improvements thereon which are deeded or leased to the Association and
designated in said deed or lease as "Common Properties" and any personal
property acquired or leased by the Association if said property is designated a
"Common Property". All Common Properties are to be devoted to and intended
for the common use and enjoyment of the Members of the Association, their
guests, Tenants (to the extent permitted by the Board of Directors of the
Association), and visiting members of the general public (to the extent permitted
by the Board of Directors of the Association) subject to the fee schedules and
operating rules adopted by the Association, provided, however, that any lands or
personal property which are leased by the Association for use as Common
Properties shall lose their character as Common Properties upon expiration of
such lease.
(n) "Intended Common Property" shall mean and refer to those tracts
of land and any improvements thereon committed to the Association through
express, written notification by the Developer to the Association of intent to
convey said property to the Association as a Common Property.
(0) "Referendum" shall mean and refer to the power of all or some
specific portion of the Members to vote by mailed ballots on certain actions by the
Board of Directors of the Association more particularly set forth herein. In the
event fifty-one (51%) percent of the votes actually returned to the Association
within the specified time shall be in favor of such action, the Referendum shall be
deemed to "pass" and the action voted upon will be deemed to have been
authorized by the Members, provided, however, that if a higher percentage
required to "pass" shall be specifically expressed herein, that higher percentage
shall control in that instance.
(P) "Clerk's Office" shall mean and refer to the office of the Clerk of
the Circuit Court of Chesterfield County, Virginia.
ARTICLE II
EXISTING PROPERTY AND ADDITIONS
Section 1. Existing Property. The real property which is and shall
be held, transferred, sold, conveyed, given, donated, leased, occupied, and used
subject to these Covenants is described as follows:
All that tract or parcel of land, situate, lying and being in Chesterfield
County, Virginia, which is more particularly described in Exhibit "A" attached
hereto and by specific reference made a part hereof.
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All of the real property hereinabove described shall sometimes be referred
to herein as the "Existing Property". The Developer intends to develop the
Existing Property in accordance with a Master Plan placed on display in certain
model homes and other areas. The Developer reserves the right to review and
modify the Master Plan at its sole option from time to time based upon its
continuing research and design program. The Master Plan shall not bind the
Developer to adhere to the Master Plan in the development of the land shown
thereon. Subject to its right to modify the Master Plan as stated herein, the
Developer shall conve:y to the Association certain properties designated for such
conveyance in Article IV, Section 4 of this Declaration, and, in addition, may at
its option convey to the Association as provided in Article IV such of those
parcels of land designated on the Master. Plan as properties which may be
transferred to the Association, as, in the reasonable exercise of its discretion, it so
chooses without regard to the relative location of such portions or sections within
the overall Plan. Onc(~ conveyed to the Association, these properties shall become
Common Properties. The Developer shall not be required to follow any
predetermined sequence or order of improvements and development and may
bring within the plan of these covenants additional lands, and develop the same
before completing the development of the Existing Property. Other than as stated
in this paragraph, the Developer shall have full power to add to, subtract from, or
make changes in the Master Plan regardless of the fact that such actions may alter
the relative maximum potential voting strength of the various types of
membership of the Association.
Section 2. Additions to Existing Property. Additional lands may
become subject to this Declaration in the following manner:
(a) Additions. During the period of development, which
shall by definition extend from the date hereof to January 1, 1999, the Developer
shall have the right, without further consent of the Association, to bring within the
Plan and operation of this Declaration, additional acreage adjacent to or near
Stoney Glen South owned or acquired by the Developer during the period of
development. Such property may be subjected to this Declaration as one parcel or
as several smaller parcels at one time or at different times. The additions of such
property authorized under this paragraph may increase the cumulative maximum
number of Residential Lots authorized in thePtoperties by the Zoning Ordinance
of the County of Chesterfield, Virginia, and, therefore, may alter the relative
maximum potential voting strength of the various types of membership of the
Association.
The additions authorized under this and the succeeding subsection
shall be made by recording a Supplementary Declaration of Covenants and
Restriction with respect to the additional property which shall extend the
operation and effect of the Covenants to. such additional property. The
Supplementary Declaration may contain such complementary additions and/or
modifications of the Covenants as may be necessary or convenient, in the sole
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judgment of the Developer, to reflect the different character, if any, of the added
properties and as are not inconsistent with the plan of this Declaration, but such
modifications shall have no effect upon the Property described in Section 1,
Article II above, or upon any other prior additions to the Properties.
(b) Other Additions. Upon approval in writing of the
Association pursuant to a simple majority of the vote of those present at a duly
called meeting, the owner of any property who desires to add such property to the
plan and operation of this Declaration and to subject it to the jurisdiction of the
Association shall record a Supplementary Declaration of Covenants and
Restrictions with respect to the additional property which shall extend the
operation and effect of these Covenants to such additional property. The
additions of such property authorized under this subparagraph may increase the
cumulative maximum number of Residential Lots authorized in the Properties by
the Zoning Ordinance of the County of Chesterfield, Virginia, and, therefore, may
alter the relative maximum potential voting strength of the various types of
membership of the Association.
The Supplementary Declaration may contain such complementary
additions and/or modifications of the Covenants as may be necessary or
convenient, in the judgment of the Association, to reflect the different character, if
any, of the added properties and as are not inconsistent with the plan of this
Declaration, but such modifications shall have no effect upon the Property
described in Section 1, Article II above, or upon any other prior additions to the
Properties.
(c) Mergers. Upon merger or consolidation of the
Association with another association, as provided for in the By-Laws of the
Association, its property, rights and obligations may, by operation of law, be
transferred to another surviving or consolidated association, or in the alternative,
the properties, rights and obligations of another association may, by operation of
law, be added to the properties, rights and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or consolidated
association may administer the Existing Property, together with the covenants
established upon any other properties, as one plan. No merger or consolidation
shall effect any revocation, change, or addition to the Covenants within the
Existing Property, including, without limitation, the maximum limits on
Assessments and dues of the Association, or any other matter substantially
affecting the interests of Members of the Association.
(d) Additional lands which become subject this Declaration
under the provisions of this Section II may in the future be referred to as a part of
Stoney Glen South. Also, the name Stoney Glen South may be used by the
Developer to refer to other nearby properties not subject to this Declaration.
ARTICLE III
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MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1. Membership. The Developer, every Owner, and any
creditor who acquires title to the Properties or any portion thereof pursuant to
foreclosure or any other proceeding or deed in lieu of foreclosure shall be
Members of the Association. The Association may issue to each Member a
membership card which shall expire upon sale by an Owner of his property in
Stoney Glen South. Tenants shall not be Members of the Association. Every
Owner shall be required to submit the name(s) of his Tenant(s) and the duration of
their tenancy to the Se:cretary of the Association.
Section 2. Voting Rights. The Association shall have the following
types of membership:
TYPE "A": Type "A" Members shall be all Owners, including the
Developer, of Residential Lots, and shall be entitled to one (1) vote for each
Residential Lot which a Member owns.
TYPE "B": The Type "B" Member shall be the Developer, which shall
be entitled to elect a portion of the Board of Directors as set out in Section 4 of
this Article III.
Payment of Special Assessments shall not entitle Type "A" Members to
additional votes.
When any Property entitling the Owner to membership as a Type "A"
Member of the Association is owned of record in the name of two (2) or more
persons or entities, whether fiduciaries, joint tenants, tenants in common, tenants
in partnership or in any other manner of joint or common ownership, or if two (2)
or more persons or entities have the same fiduciary relationship respecting the
same Property, then unless the instrument or order appointing them or creating the
tenancy otherwise directs and it or a copy thereof is filed with the Secretary of the
Association, their acts with respect to voting shall have the following effect:
(1) if only one (1) votes, in person or by proxy, his act shall
bind all;
(2) if more than one (1) vote, in person or by proxy, each
fraction shall be entitled to its proportionate share of the vote or votes.
The principles of this paragraph shall apply,. insofar as possible, to execution of
proxies, waivers, consents or objections, and for the purpose of ascertaining the
presence of a quorum.
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Section 3. Governance. The Association shall be governed by a
Board of Directors consisting of three (3), five (5), seven (7), or nine (9)
Members. The number and term of such Directors is to be determined in
accordance with the provisions of the Articles of Incorporation of the Association.
Except as may be otherwise provided in the Articles of Incorporation, there shall
be two (2) classes of Directors: Class I Directors, who shall be elected by the
Type "A" Members, and Class II Directors, who shall be elected by the Type "B"
Member. The Board of Directors shall have the power to provide for staggered
election of the Class I Directors in accordance with the provisions of the Articles
of Incorporation.
Section 4. Election of The Board of Directors. (a) Each Type "A"
Member may cast the total number of votes to which he is entitled for each
vacancy to be filled by a Class I Director. Cumulative voting shall not be allowed.
(b) The Type "A" Members shall elect the Class I Director(s),
and the Type "B" Member shall elect the Class II Director(s) according to the
following formula:
(1) At any time that the total number of Residential Lots placed on the Registration
List of the Association is less than eighty (80%) percent of the maximum number
of Residential Lots authorized in the Properties by the Zoning Ordinance of the
County of Chesterfield, Virginia, the majority of the Board of Directors (fifty-one
(51%) percent of the total number of Directors, rounded to the nearest whole
number) shall be the Class II Directors and shall be elected by the Type "B"
Member. The remaining Directors shall be the Class I Director(s) and shall be
elected by the Type "A" Members.
(2) At any time that the total number of Residential Lots placed on the Registration
List of the Association is equal to or greater than eighty (80%) percent of the
maximum number of Residential Lots authorized in the Properties by the Zoning
Ordinance of the County of Chesterfield, Virginia, the majority of the Board of
Directors (fifty-one (51 %) percent of the total number of Directors, rounded to
the nearest whole number) shall be the Class I Directors and shall be elected by
the Type "A" Members. The remaining Directors shall be the Class II Director(s)
and shall be elected by the Type "B" Member.
(3) For the purposes of this formula, the total number of Residential Lots placed on
the Registration List of the Association and the maximum number of Residential
Lots authorized in the Properties shall be determined by the Board of Directors as
of the date on which notice of the meeting of the Members at which the Board of
Directors is to be elected is mailed.
Section 5. Members to Have Power of Referendum in Certain
Instances. Where specifically provided for herein, the Members, or some
specific portion thereof, shall have the power to approve or reject certain actions
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proposed to be taken by the Association by Referendum. In the event fifty-one
(51%) percent or mon: of the votes actually returned to the Association within the
specified time shall be in favor of such action, the Referendum shall be deemed to
"pass" and the action voted upon will be deemed to have been authorized by the
Members; provided, however, that if a higher percentage vote required to "pass"
shall be specifically expressed herein, that higher percentage shall control in that
instance. The Board of Directors may not undertake any action requiring a
Referendum without complying with the proYisions hereof. At any time that the
Type "A" Members have the ability to elect a majority of the Board of Directors,
the Members may require a Referendum on any action of the Board of Directors
by presenting to the St~cretary of the Board within thirty (30) days of the taking of
such action or ratification by the Board of its intent to take such action a petition
signed by not less than forty (40%) percent of the Members.
Section 6. Quorum Required for Any Action Authorized at Regular or
Special Meetings of the Association. The quorum required for any action which
is subject to a vote of the Members at an open meeting of the Association (as
distinguished from the Referendum) shall be as follows:
(a) The first time a meeting of the Members of the Association
is called to vote on (i) an increase in the Maximum Regular Annual Assessment
greater than that provided for by subparagraph (e) of Section 3 of Article V
hereof, (ii) a Special Assessment as provided for by Section 4 of Article V hereof,
(iii) the gift or sale of any parcel of land and improvements thereon designated as
a Common Property as provided for by subparagraph (f) of Section 3 of Article
IV hereof, (iv) an amendment to this Declaration. as provided for by Section 2 of
Article VIII hereof, or (v) the termination of this Declaration as provided for by
Section 1 of Article VIII hereof, the presence at the meeting of Members or
proxies entitled to cast sixty (60%) percent of the total vote of the Membership
required for such action shall constitute a quorum.
(b) The first time a meeting of the Members of the Association
is called to vote on any action proposed.to be taken by the Association, other than
that described in subparagraph (a) above, the presence at the meeting of Members
or proxies entitled to (:ast thirty (30%) percent of the total vote of the Membership
required for such action shall constitute a quorum.
If the required quorum is not present at any meeting described in
subparagraphs (a) or (b) above, with the exception of any meeting called to vote
on the termination of this Declaration described in subparagraph (a(v)) above,
another meeting or meetings may be called subject to the giving of proper notice
and the required qUOnlm at such subsequent meeting or meetings shall be one-half
('i'2) of the required quorum at the preceding meeting.
Unless otherwise provided, any reference hereafter to "votes cast at
a duly called meeting" shall be construed to be subject to the quorum
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requirements established by this Article III, Section 6, and any other requirements
for such "duly called meeting" which may be established by the By-Laws of the
Association. For the purpose of this section, "proper notice" shall be deemed to
be given when given each Member not less than thirty (30) days prior to the date
of the meeting at which any proposed action is to be considered.
Section 7. Proxies. All Members of the Association may vote
and transact business at any meeting of the Association by proxy authorized in
writing, provided, however, that Proxies shall not be required for any action
which is subject to a Referendum, in which case the votes of all the Members
polled shall be made by specifically provided ballots mailed or delivered to the
Association.
Section 8. Ballots by Mail. When required by the Board of
Directors, there shall be sent with notices of regular or special meetings of the
Association a statement of certain motions to be introduced for vote of the
Members and a ballot on which each Member may vote for or against each such
motion. Each ballot which is presented at such meeting shall be counted in
calculating the quorum requirements set out in Section 6 of this Article III,
provided, however, such ballots shall not be counted in determining whether a
quorum is present to vote upon motions not appearing on the ballot.
ARTICLE IV
PROPERTY RIGHTS IN THE COMMON PROPERTIES
Section 1. Members' Easements of Eniovment in Common Properties.
Subject to the provisions of these Covenants, the rules and regulations of the
Association, and any fees or charges established by the Association, every Type
"A" and "B" Member, and every guest of such Type "A" and "B" Member, shall
have a right of easement of enjoyment in and to the Common Properties, and such
easement shall be appurtenant to and shall pass with the title of every Residential
Lot.
Employees of the Type "B" Member shall have access to and enjoyment
of the Common Properties subject to rules and regulations and user fees
established by the Board of Directors.
A Member's spouse, parents, and children who reside with such Member
in Stoney Glen South shall have the same easement of enjoyment hereunder as a
Member.
In those instances where a Residential Lot in Stoney Glen South is owned
by two (2) or more persons (who do not have the relationship of spouse, parent, or
child, one to the other) or by a corporation, such joint Owners and corporations
shall annually appoint one (1) person as the "Primary Member." Such Primary
Member shall have the same easement of enjoyment in the Common Properties as
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Members who own such property singularly. The remaining joint members and
the principal officers of such corporation shall be entitled to an easement of
enjoyment in the Common Properties by:
(1 ) Paying the same user fees as guest of Members, or
(2) By paying to the Association annually an amount equal to
the Annual Assessment charged against the property in which he or she owns a
fractional interest. The payment of such amount shall not entitle such remaining
joint members or princ:ipal officers to additional votes in the Association.
The Board of Directors may grant certain Tenants and guests access to and
enjoyment of the Common Properties subject to rules and regulations and user
fees fees established by the Board of Directors.
Section 2. Title to Common Properties. (a) The Developer covenants
that it shall convey by deed to the Association, at no cost to the Association, and
subject to (i) all restrietions and limitations imposed by the Declaration of Rights,
Restrictions, Affirmative Obligations and Conditions Applicable to All Property
in Stoney Glen South ("General Property Covenants") recorded simultaneously
herewith, including, without limitation, all rights of easement and rights of entry
reserved unto the Developer, its successors and assigns in said Declaration, (ii) all
other restrictions and limitations of record at the time of conveyance, (iii) any
restrictions, limitations, conditions, or determinations as to the purposes and uses
of the conveyed properties as stipulated in said deed, (iv) any commitments by the
Developer to (;onstruet certain improvements thereon as stipulated in said deed,
those intended Common Properties described in Section 4 of this Article IV
hereof., and any otheT parcels of land and any improvements thereon now or
hereafter designated as Intended Common Properties, and, upon such conveyance,
such parcels of land and any improvements thereon shall become Common
Properties.
(b) The Association shall not object to the designation by the Developer
of any parcel of land or any improvements thereon as an Intended Common
Property and shall not refuse to accept any Intended Common Property as a
Common Property at such time as the Developer, in its sole and uncontrolled
discretion, deems it advisable to convey such property to the Association.
(c) Upon designation by the Developer of any parcel of land and any
improvements thereon as an Intended Common Property, or upon conveyance of
any parcel of land and any improvements thereon as a Common Property by the
Developer, the Association shall immediately become responsible for all
maintenance and operation of said property, and for such additional construction
of improvements the:reon as may be authorized by the Association's Board of
Directors, subject to the General Property Covenants. It is the purpose of this
provision to provide that the Association shall be responsible for all maintenance
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and operation of all Common Properties and Intended Common Properties,
notwithstanding the fact that (i) the Developer shall convey such Intended
Common Properties to the Association until such time as the Developer, in its sole
and uncontrolled discretion deems it advisable to do so, subject to the provisions
of Section 4 of this Article IV, and (ii) the Developer may elect in its sole and
uncontrolled discretion to operate certain facilities within Intended Common
Properties until such time as said facilities are actually conveyed to the
Association.
(d) Notwithstanding anything in the foregoing to the contrary, the
Developer hereby reserves the right to enter upon any Intended Common Property
or Common Property for the purposes of constructing indoor and outdoor
community facilities thereon, including, but not limited to, basketball courts,
playgrounds, ball fields, gazebos, picnic shelters, picnic tables, parks, walking
trails and bike trails. The provisions of this paragraph shall in no way create any
obligation on the part of the Developer to construct any such facilities on said
properties.
( e) Natural areas, trail areas, etc. may be designated from time to time as
Intended Common Properties, and shall be conveyed in large or small parcels
from time to time after the Developer has completed surveying and platting all
adjacent subdivisions for Residential Lots which may abut such natural areas, trail
areas, etc.
(f) The Developer shall not be required to convey the above referred to
parcels where such conveyance would be prohibited under agreements existing on
the date hereof, but, in such case, shall be allowed to postpone such conveyance,
without penalty, until such time a said prohibition may be nullified.
Section 3. Extent of Members' Easements. The rights and easements
of enjoyment created hereby shall be subject to the following:
(a) the right of the Association, in accordance with its By-Laws, to
borrow money from the Developer or any lender to improve and/or maintain the
Common Properties and provide services authorized herein and in aid thereof to
mortgage said Properties provided, however, that any such mortgage is with the
prior consent of two-thirds of the Members of the Association, which consent
may be evidenced by petition or by an affirmative vote at a duly called meeting of
the Association;
(b) the right of the Association to take such steps as are reasonably
necessary to protect the above-described Properties against foreclosures;
(c) the right of the Association to suspend the rights and easements of
enjoyment of any Member or Tenant or guest of any Member for any period
during which the payment of any Assessment against property owned by such
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06SN0178-APR26-ADDENDUM-BOS
Member remains delinquent, and for any period not to exceed sixty (60) days for
any infraction of its published rules and regulations, it being understood that any
suspension for either non-payment of any Assessment or a breach of the rules and
regulations of the Association shall not constitute a waiver or discharge of the
Member's obligations to pay the Assessment;
(d) the right of the Association to charge reasonable admission and other
fees for the use of recneational facilities and services of the Common Properties;
(e) the right of the Developer or the Association by its Board of Directors
to dedicate or transfer to any public or private utility drainage or utility easements
on any part of the Common Properties;
(f) the right of the Association to give or sell all or any part of the
Common Properties, including lease-hold interests, subject to (i) the Zoning
Ordinance of County of Chesterfield, Virginia, (ii) the limitations and restrictions
imposed by the General Property Covenants, and (iii) all other restrictions and
limitations of record at the time of conveyance, to any public agency, authority,
public service district, utility, or private concern for such purposes and subject to
such conditions as may be agreed to by the Members, provided, however, that no
such gift or sale of any parcel of land and improvements thereon, or determination
as to the purposes or as to the conditions thereof, shall be effective unless such
dedication, transfers, and determinations as to purposes and conditions shall be
authorized by the affilmative vote of three-fourths (3/4) of the votes cast at a duly
called meeting of the Association, subject to the quorum requirements established
by Article III, Section 6(a), and unless written notice of the meeting and of the
proposed agreement and action thereunder is sent to every Member of the
Association at least thirty (30) days prior to such meeting. A true copy of such
resolution together with a certificate of the results of the vote taken thereon shall
be made and acknowledged by the President or Vice President and Secretary or
Assistant Secretary of the Association and such certification shall be annexed to
any instrument of dedication or transfer of any parcel of land and improvements
thereon affecting the Common Properties prior to the recording thereof. Such
certificates shall be conclusive evidence of authorization by the Members. The
gift or sale of any personal property owned by the Association shall be
determined by the Board of Directors in its sole and uncontrolled discretion; and
(h) the rights of reversion of the Lessor of any Common Properties leased
by the Association.
Section 4. The Developer hereby covenants that, prior to January 1,
1999, it shall convey by deed to the Association, at no cost to the Association, and
subject to all the restrictions and limitations of these Covenants and any other
restrictions and limitations of record, any parcel of land and any improvements
thereon designated from the date hereof until January 1, 1999, as an Intended
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06SN0178..APR26-ADDENDUM-BOS
Common Property through express, written notification by the Developer to the
Association of intent to convey said property to the Association.
ARTICLE V
COVENANTS FOR ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of
Assessments. The Developer covenants, and each Owner of any Residential Lot
located within the Properties, whether or not it shall be so expressed in any deed
or other conveyance, shall be deemed to covenant and agree to all the terms and
provisions of this Declaration and to pay to the Association: (a) Annual
Assessments or charges; and (b) Special Assessments or charges for the purposes
set forth in this Article, such Assessments to be fixed, established and collected
from time to time as hereinafter provided. The Annual and Special Assessments,
together with such interest thereon and costs of collection thereof including a
reasonable attorney's fee as hereinafter provided, shall be a charge and continuing
lien on the real property and improvements thereon against which each such
Assessment is made. Each such Assessment, together with such interest thereon
and cost of collection thereof including a reasonable attorney's fee as hereinafter
provided, shall also be the personal obligation of the person who was the Owner
of such real property at the time when the Assessment first became due and
payable. In the case of co-ownership of a Residential Lot, all co-Owners shall be
jointly and severally liable for the entire amount of the Assessment.
Section 2. Purpose of Assessments. The Annual Assessments shall be
used exclusively for the improvement, maintenance, enhancement, enlargement,
and operation of the Common Properties and Intended Common Properties, and to
provide services which the Association is authorized to provide.
Section 3. Application of "Maximum" Assessment. The Maximum
Regular Annual Assessment, as set forth in subparagraph (a) hereinbelow, and as
is automatically increased annually by an inflation adjuster pursuant to the
provisions of subparagraph (3) below, shall be levied by the Association. If,
however, the Board of Directors of the Association, by majority vote, determines
that the important and essential functions of the Association may be properly
funded by an Assessment less than the Maximum Regular Annual Assessment, it
may levy such lesser Assessment; provided, however, so long as the Developer is
engaged in the development of Properties which are subject to the terms of this
Declaration, the Association may not reduce Assessments below those set out in
Section 3(a) immediately below without the written consent of the Developer.
The levy of an Assessment less than the Maximum Regular Annual Assessment in
one (1) year shall not affect the Board's right to levy an Annual Assessment equal
to the Maximum Regular Annual Assessment in subsequent years.
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06SN0178-APR26-ADDENDUM-BOS
If the Board of Directors shall levy less than the Maximum Regular
Annual Assessment for any Assessment year, such Annual Assessment shall
automatically be greater than the Annual Assessment levied for the previous
Assessment year by a percentage equal to the inflation adjuster set out in
subparagraph (e) below; provided, however, that the Board of Directors may, by
majority vote, levy a greater or lesser Assessment if it shall determine that the
important and essential functions of the Association will be properly funded by
such greater or lesser Assessment.
If the Board of Directors shall levy less than the Maximum Regular
Annual Assessment for any Assessment year and thereafter, during such
Assessment year, determine that the important and essential function of the
Association cannot ble funded by such lesser Assessment, the Board may, by
majority vote, levy a Supplement Assessment. In no event shall the sum of the
initial and Supplemental Annual Assessments for that year exceed the applicable
Maximum Regular Annual Assessment.
If the Board of the Association determines that the important and essential
functions of the Association will not be properly funded in anyone (1) year, or in
anyone (1) year and all subsequent years, without an increase in the Maximum
Regular Annual Assessment, it may request approval of a specified increase in the
Maximum Regular Armual Assessment for either one (1) year only, or for that one
(1) year and all subsequent years, by the vote of the Members at a duly called
meeting of the Association, subject to the quorum requirements established by
Article III, Section 6(a). Should the Members vote in favor of such proposed
increase, it shall be deemed approved and may be levied by the Board. An
increase in the Maximum Regular Annual Assessment for one (1) year only
pursuant to the provisions hereof shall in no way affect the Maximum Regular
Annual Assessment for subsequent years or increases thereof in subsequent years.
(a) From and after January 1, 1988, the Maximum Regular Annual
Assessment shall be one hundred twenty ($120.00) dollars per Residential Lot,
automatically increased each year thereafter by the inflation adjuster set forth in
Section 3(e) of this A11icle.
(b) Property shall not be classified for purposes of these Covenants
and these Annual Assessments as a Residential Lot until the first day of the
quarter of the year following (i) the date of recording of the Plat in the Clerk's
Office showing such lot, and (ii) the date of placement of such lot on the
Developer's inventory list oflots available for sale to purchasers;
( c) Assessments shall be billed on such basis as may be determined by
the Board of Directors. The billing schedule shall be the same for all Properties.
All Assessment bills shall be due and payable ninety (90), thirty (30), or fifteen
(15) days from the date of mailing of same as determined by the Board of
Directors, provided, however, that if the Board of Directors elects to utilize a
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06SNOl78-APR26-ADDENDUM-BOS
Billing Agent, the Billing Agent shall set the date on which Assessment bills shall
be due and payable.
(d) The Board of Directors may authorize a Billing Agent to collect
the Assessments. Ifthe Board of Directors elects to sue a bank card or credit card
service as such Billing Agent, the Board of Directors shall have the power to
authorize the opening of a credit card account in the name of each Owner and the
issuance of a credit card to each Owner for the payment of Assessments, subject
to approval of the credit card service, and each such Owner shall be required to
utilize the approved credit card account for payment of Assessments.
(e) From and after January 1, 2008, the Maximum Regular Annual
Assessment shall be automatically increased each year by the percentage increase
between first and last months of the thirteen (13) month period terminating at the
end of the third (3rd) quarter of the previous year in the Consumer Price Index,
u.s. City Average, All Items (1967-100) ("C.P.I.") issued by the u.s. Bureau of
Labor Statistics in its monthly report entitled "The Consumer Price Index, U.S.
City Average and Selected Areas". If the C.P.I. is discontinued, then there shall be
used the most similar index published by the United States Government that may
be procured indicating changes in the cost of living.
Section 4. Special Assessments for Improvements and Additions. In
addition to the Maximum Regular Annual Assessments authorized by Section 3
hereof, the Association may levy Special Assessments for the following purposes:
(a) construction, reconstruction, repair, or replacement of capital
improvements upon the Common Properties or Intended Common Properties,
including the necessary fixtures and personal property related thereto:
(b) additions to the Common Properties;
(c) to provide necessary facilities and equipment to offer the services
authorized herein; or
(d) to repay any loan made to the Association to enable it to perform
the duties and functions authorized herein.
Such Special Assessment, before being charged, must have received the
approval ofthe Members ofthe Association by the favorable vote of- seventy-five
(75%) percent_of the votes cast at a duly called meeting of the Association,
subject to the quorum requirements established by Article III, Section 6(a). The
notice of such meeting shall include one (1) statement from those Directors
favoring the Special Assessment and one (1) statement from those Directors
opposing the Special Assessment, if any, containing the reasons for those
Directors' support and opposition for the Assessment. Neither statement shall
exceed five (5) pages in length.
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06SN0178-APR26-ADDENDUM-BOS
This provision shall be interpreted to mean that the Association may make
in anyone (1) year an Annual Assessment up to the maximum set forth in Section
3 of this Article V, plus an additional Special Assessment. Such Special
Assessment in anyone (1) year may not exceed a sum equal to the amount of the
Maximum Regular Annual Assessment for such year except for emergency or
repairs required as a result of storm, fire, natural disaster, or other casualty loss.
The fact that the Association has made an Annual Assessment for an amount up to
the Maximum Regula.r Annual Assessment shall not affect its right to make a
Special Assessment during the year.
Section 5. Reserve Funds. The Association may establish reserve
funds to be held in reserve in an interest drawing account or investments as a
reserv<:: for:
(a) major rehabilitation or major repairs;
(b) emergt::ncy and other repairs required as a result of storm, fire,
natural disaster, or other casualty loss; and
(c) initial costs of any new service to be performed by the Association.
Section 6. Change in Maximum Amounts of Annual Assessments
Upon Merger or Consolidation. The limitations of Section 3 hereof shall apply to
any merger or consolidation in which the Association participates.
Section 7. Date of Commencement of Annual Assessments. Due Date.
Notwithstanding anything in the foregoing to the contrary, the Annual
Assessments provided for herein shall commence no earlier than January, 2008.
The initial Annual Assessment on the actual Date of Commencement shall be
prorated to reflect the remaining full quarters of the initial Assessment year.
Section 8. Duties of the Board of Directors. The Board of Directors
shall fix the amount of the Annual Assessment and shall direct the preparation of
an index of an Residlential Lots on the Registration List and Annual Assessments
and Special Assessments applicable thereto, which shall be kept in the Office of
the Association and which shall be open to inspection by any Member. Written
notice of Assessment shall thereupon be sent to every Member subject thereto.
The Association shall upon demand at any time furnish to any Owner
liable for said Assessments a certifIcate in writing signed by an Officer of the
Association, setting forth whether said Assessments have been paid. Such
certificate shall be conclusive evidence against all but the Owner of payment of
any Assessment therein stated to have been paid. If the Board of Directors
authorizes a Billing Agent to collect Assessments, the certificate of the said
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06SN0178-APR26-ADDENDUM-BOS
Billing Agent shall be conclusive evidence against all but the Owner of payment
of any Assessment therein stated to have been paid.
Section 9. Effect of Non-Payment of Assessment: The Personal
Obligation of the Owner: the Lien~ Remedies of Association. If the Annual
Assessment or any Special Assessment is not paid within thirty (30) days of the
due date thereof, then such Assessment shall become delinquent and shall
(together with interest thereon at the maximum annual rate permitted by law from
the due date and costs of collection thereof including a reasonable attorney's fee)
become a charge and continuing lien on the land and all improvements thereon
against which each such Assessment is made, in the hands of the then Owner, his
heirs, devisees, personal representatives, and assigns.
If the Assessment is not paid within sixty (60) days after the due date, the
Association may bring an action at law against the Owner personally and there
shall be added to the amount of such Assessment the costs of preparing the filing
of the Complaint in such action and a reasonable attorney's fee. In the event a
judgment is obtained, such judgment shall include interest on the Assessment as
above provided and a reasonable attorney's fee together with the costs of the
action.
If the Board of Directors of the Association elects to utilize a Billing
Agent to collect Assessments, interest which shall accrue on past-due sums shall
be the maximum interest rate which such agent may lawfully charge.
Section 10. Subordination of the Lien. The Lien of the Assessments
provided for herein shall be subordinate to the lien of any first deed of trust now
or hereafter placed upon any Properties subject to Assessment, and in addition,
shall be subordinate to the lien of the cost of corrective action provided for in the
General Property Covenants. In the event a creditor acquires title to any Property
subject to Assessment pursuant to foreclosure or any other proceeding or deed in
lieu of foreclosure, said creditor shall be subject to Assessment.
Section 11. Annual Statements. The President, Treasurer, or such other
Officer as may have custody of the funds ofthe Association shall annually, within
ninety (90) days after the close of the fiscal year of the Association, prepare and
execute under oath a general itemized statement showing the actual assets and
liabilities of the Association at the close of such fiscal year, and a statement of
revenues, costs and expenses. It shall be necessary to set out in the statement the
name of any creditor of the Association owed more than One Thousand and
no/IOO ($1,000.00) Dollars. Such Officer shall furnish to each Member of the
Association who may make a written request therefor, a copy of such statement,
within thirty (30) days after receipt of such request. Such copy may be furnished
to the Member either in person or by mail.
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06SN0178-APR26-ADDENDUM-BOS
Section 12. Annual Budget. The Board of Directors shall prepare and
make available to all Members, at least sixty (60) days prior to the first day of
each fiscal year, a budget outlining anticipated receipts and expenses for such
fiscal year. The financial books of the Association shall be available for
inspection by all Members at all reasonable times.
ARTICLE VI
FUNCTIONS OF ASSOCIATION
Section 1. Ownership and Maintenance of Properties. The
Association shall be authorized to own and/or maintain Common Properties,
Intended Common Properties, equipment furnishings, and improvements devoted
to the following uses:
(a) for roads, roadways, roadway medians and parkways along said
roads or roadways, cul-de-sac islands, and neighborhood or other area entrances
throughout the Properties;
(b) for sidewalks, walking paths or trails, and bicycle paths through
the Properties;
(c) for neighborhood entrance signs, directional signs, and other area
SIgnS;
(d) for security services;
( e) for buildings used in maintenance functions;
(f) for providing any of the services which the Association IS
authOllzed to offer under Section 2 of this Article VI;
(g) for purposes set out in deeds by which Common Properties are
conveyed to the Association, provided that such purposes shall be approved by
the Members of the Association as set out in Section 4 of this Article VI; and
(h) for indoor and outdoor community facilities, including, but not
limited to, basketball courts, playgrounds, ball fields, gazebos, picnic shelters,
picnic tables, parks, walking trails and bike trails.
Section 2. Services. The Association shall be authorized but not
required, except as specified in Section 3 of this Article VI, to provide the
following services:
(a) cleanup and maintenance of all roads, roadways, roadway medians,
parkways, cul-de-sac islands, neighborhood and other area entrances, streams,
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06SN0178-APR26-ADDENDUM-BOS
parks, sidewalks, walking trails, bike trails, Common Properties, Intended
Common Properties, and Open Space Areas within the Properties, and also all
public properties which are located within or in a reasonable proximity to the
Properties such that their deterioration would affect the appearance of the
Properties as a whole;
(b) landscaping and beautification of roads, roadways, roadway
medians, parkways, cul-de-sac islands, neighborhoods and other area entrances,
streams, parks, sidewalks, walking paths, bike trails, Common Properties,
Intended Common Properties, and Open Space Areas;
( c) maintenance of neighborhood entrance signs, directional signs, and
other area signs;
(d) lighting of roads, sidewalks, walking paths, bike trails, parking
lots, and any recreational and community facilities located within the Properties;
(e) security, including, but not limited to, the employment of security
guards for the protection of persons and property within the Existing Property,
and assistance in the apprehension and prosecution of persons who violate the
laws of the State of Virginia or the County of Chesterfield, Virginia, within the
Properties;
(f) garbage and trash collection and disposal;
(g) insect and pest control to the extent that it is necessary or desirable
in the judgment of the Board of Directors of the Association to supplement the
service provided by the state and local governments;
(h) the services necessary or desirable in the judgment of the Board of
Directors of the Association to carry out the Associations obligations and business
under the terms of this document;
(i) to take any and all actions necessary to enforce all Covenants and
Restrictions affecting the Properties and to perform any of the functions or
services delegated to the Association in any Covenants or Restrictions applicable
to the Properties;
G) to set up and operate an Architectural Review Board in the event
that the Association is designated by the Developer as the agent or the assign of
the Developer for such purpose, pursuant to the provisions of Article VII;
(k) to conduct instructional, recreational, sports, crafts, social, and
cultural programs of interest to Members, their families and guests;
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06SN0178-APR26-ADDENDUM-BOS
(1) to construct improvements on Common Properties or Intended
Common Properties for use for any of the purposes authorized in this Article, or
as may be required to provide any of the services authorized in this Article;
(m) to provide administrative services, including, but not limited to,
legal, accounting, and financial; and communication services, including, but not
limited to, community newsletters and newspapers to inform Members of
activities, notices of meetings, referendums, and other issues and events of
community interest;
(n) to provide liability and hazard insurance covering improvements
and activities on the Common Properties;
(0) to construct mailboxes, signs, and other standard features for use
throughout the Properties; and
(p) to provide any or all of the above listed services to another
association of Owners of real property under a contract, the terms of which must
be approved by the Board of Directors.
Section 3. Minimum List of Functions and Services. The "Minimum
List of Functions and Services" shall establish and define the minimum level of
functions and services which the Association must furnish to its Members. So
long as the Developer is engaged in the development of Properties which are
subject to the terms of this Declaration, the Association shall not reduce the level
of functions and services it furnishes to its Members below such minimum level
without the prior wlitten consent of the Developer. The "Minimum List of
Functions and Services" shall obligate the Association to:
(a) provide or procure the administrative services necessary to carry
out the Association's obligations and business under the terms of this Declaration,
the Articles of Incorporation of the Association, and the By-Laws of the
Association, including, but not limited to, legal, accounting, financial, and
communications services;
(b) administer and enforce the covenants and restrictions established in
this Declaration, including, but not limited to. the following actions:
(1) set Assessments, levy such Assessments, notify the Members of such
Assessments, and collect such Assessments;
(2) prepare accurate indexes of Members, Residential Lots, Votes, Assessments, the
total number of Residential Lots placed on the Registration List of the
Association, the maximum number of Residential Lots authorized in the
Properties by the zoning Ordinance of the County of Chesterfield, Virginia, and
the Maximum Regular Annual Assessment;
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06SN0178-APR26-ADDENDUM-BOS
(3) operate an Architectural Review Board in the event that the Association is
designated by the Developer as the agent or the assign of the Developer for such
purpose;
(4) maintain and operate all Common Properties and Intended Common Properties;
(5) hold Annual Meetings, Special Meetings, and Referendums as required, hold
elections for the Board of Directors as required, and give Members proper notice
as required; and
(6) prepare annual statements and annual budgets, and shall make the financial books
of the Association available for inspection by Members at all reasonable times;
(c) should the Developer appoint the Association its agent for the
administration and enforcement of any of the provisions of the General Property
Covenants or any other covenants and restrictions of record, assume such
responsibility and any obligations which are incident thereto;
(d) should the Developer assign to the Association any of the rights
reserved unto it in the General Property Covenants or any other covenants and
restrictions of record, assume the responsibility of administering and enforcing
said rights, and shall assume any obligations which are incident thereto;
(e) provide appropriate liability and hazard msurance coverage for
improvements and activities on all Common Properties;
(f) provide appropriate Directors' and Officers' Legal Liability
Insurance, and indemnify persons pursuant to the provisions of the Articles of
Incorporation of the Association;
(g) keep a complete record of all its acts and corporate affairs;
(h) provide regular and thorough cleanup of all roads, roadways,
roadway medians, parkways, cul-de-sac islands, neighborhood and other area
entrances, and bike trails throughout the Properties, including, but not limited to,
mowing grass on all roadsides, cul-de-sac islands, entrances, and bike trails;
landscape maintenance on all roadsides, cul-de-sac islands, entrances, and bike
trails; pickup and disposal of trash on all roads, roadsides, cul-de-sac islands,
entrances, and bike trails. Such cleanup as is possible shall begin within an
individual residential neighborhood as soon as construction of dwellings has
commenced within said neighborhood;
(i) provide general maintenance of all neighborhood entrance signs,
directional signs, and other area signs, including, but not limited to, painting,
repair work, and replacement as needed:
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06SN0178-APR26-ADDENDUM-BOS
G) provid~: regular and thorough maintenance and cleanup of all
Common Properties and Intended Common Properties, including, but not limited
to, mowing of grass, fertilization as needed, landscape maintenance as needed,
pickup and disposal of trash, washing down of picnic tables and benches as
needed, and painting, repairs to and replacement of all improvements as needed;
and
Section 4. Obligation of the Association. The Association shall not be
obligated to carry out or offer any of the functions and services specified by the
provisions of this Article VI except as specified in Section 3 of this Article VI.
The functions and services to be carried out or offered by the Association at any
particular time shall be determined by the Board of Directors taking into
consideration the funds available to the Association and the needs of the Members
of the Association. The functions and services which the Association is
authorized to carry out or to provide may be added to or reduced, subject to the
provisions of Section 3 of this Article VI, at any time upon the affirmative vote of
seventy-five (75%) pl~rcent of the votes cast by the Type "A" Members at a duly
called meeting of the Association.
Section 5. Mortgage and Pledge. The Board of Directors shall have
the power and authority to obtain loans to be used by the Association in
performing its authorized functions and services and to mortgage the property of
the Association and to pledge the revenues of the Association as security for such
loans, provided that any such mortgage is with the prior consent of two-thirds of
the Members of the Association, which consent may be evidenced by petition or
by an affirmative vote of two-thirds of the Association. The Developer may, but
shall not be required, to make loans to the Association. Notwithstanding anything
in this Declaration to the contrary, the Association shall not be allowed to reduce
the level of the Annual Assessment below the limit of the Maximum Regular
Annual Assessment at any time there are outstanding any amounts due the
Developer as repayment of any loans made by the Developer to the Association
without the express written consent of the Developer.
Section 6. Maintenance of Property Not Owned by the Association.
The Association shall be authorized to render services of a governmental nature
not furnished by the local government in the case of maintenance of property not
owned by it.
ARTICLE VII
THE GENERAL PROPERTY COVENANTS AND ARCHITECTURAL
CONTROL
Section 1. The General Property Covenants. Pursuant to the
provisions of the General Property Covenants, the Developer reserved the right to
24
06SN0178-APR26-ADDENDUM-BOS
appoint the Association its agent for the purpose of administering and enforcing,
in whole or in part, the rights reserved unto the Developer in said General
Property Covenants, including, but not limited to, the right to approve (or
disapprove) plans, specifications, color, finish, plot plan, land management plan,
and construction schedules for any or all buildings or structures to be erected
within any or all of the properties subject to said General Property Covenants.
Such appointment may be temporary or permanent, and shall be subject to any
conditions, limitations, or restrictions which the Developer, in its sole and
uncontrolled discretion, may elect to impose. Upon any such appointment of the
Association as agent by the Developer, the Association shall assume any
obligations which are incident thereto.
In addition to the foregoing, the Developer reserved the right to assign in
whole or in part to the Association its rights reserved in the General Property
Covenants to grant approvals (or disapprovals), to establish rules and regulations,
to administer and enforce the provisions of said General Property Covenants, and
any or all other rights reserved therein by the Developer. The assignment of such
rights shall be subject to any conditions, limitations, or restrictions which the
Developer, in its sole and uncontrolled discretion, may elect to impose at the time
of assignment. Following the assignment of such rights, the Association shall
assume all of the Developer's obligations which are incident thereto (if any), and
the Developer shall have no further obligation or liability with respect thereto.
The assignment of such right or rights by the Developer to the Association shall
be made by written instrument which shall be recorded in the Clerk's Office.
Notwithstanding anything in the foregoing to the contrary, so long as the
Developer, its successors and assigns, is the owner of property subject to the
provisions of the General Property Covenants, the Developer, in addition to and
jointly with the Association, shall retain all rights of easement reserved unto it in
said General Property Covenants, and shall, furthermore, retain all rights of entry
granted unto it in said General Property Covenants for the purposes of correcting,
repairing, enhancing, improving, cleaning, preserving, clearing out, removing, or
taking any action to prevent a violation of said General Property Covenants, and
the retention of said rights of easement and entry by the Developer shall in no
way create any obligation on the part of the Developer to perform any affirmative
action.
Section 2. The Architectural Review Board. Should the Developer
designate the Association its agent or its assign for the purpose of administering
and enforcing, in whole or in part, the rights reserved unto the Developer in the
General Property Covenants to approve ( or disapprove) plans, specifications,
color, finish, plot plan, landscape plan, and construction schedules for any or all
buildings or structures to be erected within any or all of the Properties as specified
in Section 1 hereinabove, the Association shall establish and operate an
Architectural Review Board for the purpose of administering and enforcing such
approvals ( or disapprovals).
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06SN0178-APR26-ADDENDUM-BOS
The Architectural Review Board shall be composed of at least three (3)
but not more than eleven (11) Members, all of whom shall be appointed by the
Board of Directors of the Association. At least one (1) Member of the Association
other than the Developer shall be a Member of the Architectural Review Board at
all times.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Duration. These Covenants and any amendments thereto
shall run with and bind the land subject hereto, and shall inure to the benefit of
and be enforceable by the Association, the Developer, or the Owner of any land
subject to this Declaration, their respective legal representatives, heirs, successors,
and assigns, for a period of thirty (30) years from the date of this Declaration.
Upon the expiration of said thirty (30) year period, this Declaration shall be
automatically extended for successive periods of ten (10) years. The number of
ten (10) year extension periods hereunder shall be unlimited, provided, however,
that there shall be no extension of this Declaration if during the last year of the
initial thirty (30) year period, or during the last year of any subsequent ten (10)
year extension period, at a duly called meeting of the Association, seventy-five
(75%) percent or more of the total vote entitled to be cast by all the Members of
the Association shall vote in favor of temlinating this Declaration at the end of its
then current tenn. The presence at the meeting of Members or proxies entitled to
cast seventy-five (75%) percent of the total vote of the Membership shall
constitute a quorum. It shall be required that written notice of any meeting at
which such a proposal to terminate this Declaration is to be considered, setting
forth the fact that such a proposal will be considered, shall be given each Member
at least thirty (30) days in advance of said meeting. In the event that the Members
of the Association vote to terminate this Declaration, the President and Secretary
of the Association shall execute a certificate which shall set forth the Resolution
of Termination adopted by the Association, the date of the meeting of the
Association at which such Resolution was adopted, the date that Notice of such
Meeting was ~~ven, the total number of votes of Members of the Association, the
total number of votes required to constitute a quorum at a meeting of the
Association, the total number of votes present at said meeting, the total number of
votes necessary to adopt a Resolution terminating this Declaration, the total
number of votes cast against such Resolution. Said certificate shall be recorded in
the Clerk's Office and may be relied upon for the correctness of the facts
contained therein as they relate to the termination of this Declaration.
Section 2. Amendments. All proposed amendments to this
Declaration shall be submitted to a vote of the Members at a duly called meeting
of the Association subject to the quorum requirements established by Article III,
Section 6(a). Any proposed amendment shall be deemed approved if seventy-five
26
06SN0178-APR26-ADDENDUM-BOS
(75%) percent of the votes cast at such meeting vote in favor of such proposed
amendment. Notice shall be given each Member at least thirty (30) days prior to
the date of the meeting at which such proposed amendment is to be considered. If
any proposed amendment to this Declaration is approved by the Members as set
forth above, the President and Secretary of the Association shall execute an
Addendum to this Declaration which shall set forth the amendment, the effective
date of the amendment (which in no event shall be less than sixty (60) days after
the date of the meeting of the Association at which such amendment was
adopted), the date of the meeting of the Association at which such amendment
was adopted, the date that notice of such meeting was given, the total number of
votes of Members of the Association, the total number of votes required to
constitute a quorum at a meeting of the Association, the total number of votes
present at said meeting, the number of votes necessary to adopt the amendment,
the total number of votes cast in favor of such amendment and the total number of
votes cast against the amendment. Such Addendum shall be recorded in the
Clerk's Office.
So long as the Developer, as the Type "B" Member, is entitled to elect a
majority of the Members of the Board of Directors, no amendment of this
Declaration shall be made without the consent of the Developer.
Section 3. Notices. Any notice required to be sent to any Member under
the provisions of this Declaration shall be deemed to have been properly sent, and
notice thereby given, when delivered personally or sent by mail, with the proper
postage affixed, to the address appearing on the Association's Membership list.
Notice to one (1) of two (2) or more co-Owners or co-Tenants of a Residential
Lot shall constitute notice to all Co-Owners or co-Tenants. It shall be the
obligation of every Member to immediately notify the Secretary of the
Association in writing of any change of address. Any person who becomes a
Member following. the first day in the calendar month in which said notice is
delivered or mailed shall be deemed to have been given notice if notice was given
to his predecessor in title.
Section 4. Enforcement. Enforcement of these Covenants shall be by
and proceeding at law or in equity against any person or persons violating or
attempting to violate or circumvent any covenant or restriction, either to restrain
violation or to recover damages, and against the land and to enforce any lien
created by these Covenants; and failure by the Association or any Member or the
Developer to enforce any covenant or restriction herein contained for any period
of time shall in no event be deemed a waiver or estoppel of the right to enforce
same thereafter.
Section 5. Severability. Should any covenant or restriction herein
contained, or any Article, Section, Subsection, sentence, clause, phrase or term of
this Declaration be declared to be void, invalid, illegal, or unenforceable, for any
reason, by the adjudication of any Court or other tribunal having jurisdiction over
27
06SN0178-APR26-ADDENDUM-BOS
the parties hereto and the subject matter hereot~ such judgment shall in no wise
affect the other provisions hereof which are hereby declared to be severable and
which shall remain in full force and effect.
Section 6. llnterpretation. The Board of Directors of the Association
shall have the right to determine all questions arising in connection with this
Declaration, and to construe and interpret its provisions, and its determination,
construction, or interpretation shall be final and binding. In all cases, the
provisions of this Dedaration shall be given that interpretation or construction
that will best tend toward the consummation ofthe general plan of improvements.
Section 7. ,Authorized Action. All actions which the Association is
allowed to take under this instrument shall be authorized actions of the
Association if approved by the Board of directors of the Association in the
manner provid(~d for in the By-Laws of the Association, unless the terms of this
instrument provide otherwise.
Section 8. Other Agreements. Notwithstanding anything contained
herein to the contrary, all the provisions of these Covenants shall be subject to and
conform with the provisions of:
(a) the Zoning Ordinance of the County of Chesterfield, Virginia, and the
rules and regulations promulgated thereunder, as may from time to time hereafter
be amended or modified;
(b) the Master Plan for the development of Stoney Glen South as
approved by the Board of Supervisors of the County of Chesterfield as may from
time to time hereinaft(;~r be amended or modi tIed; and
(c) the General Property Covenants recorded contemporaneously herewith
in the Clerk's Office. In the event of any conflict between this Declaration and
the General Property Covenants the General Property Covenants shall prevail.
None of the provisions of this Section (6) are or shall in any way be
construed to be or to constitute a conveyance, transfer, disposition, waiver or
relinquishment of any right, title, and interest of the Developer or the Association,
as their respective rights, titles, and interests may appear, in and to or under any of
the above referenced instruments or documents to or for the benefit of any other
person, firm, or corporation.
Section 9. Limited Liability. In connection with all reviews,
acceptances, inspections, pennissions, consents or required approvals by or from
the Developer and/or the Association contemplated under this Declaration, the
Developer and/or the Association shall not be liable to an Owner or to any other
person on account of any claim, liability, damage, or expense suffered or incurred
by or threatened against an Owner or such other person and arising out of or in
28
06SN0178-APR26-"'\DDENDUM-BOS
any way relating to the subject matter of any such reviews, acceptances,
inspections, permissions, consents or required approvals, whether given, granted,
or withheld.
Section 10. Termination of Association. In the event that this
Declaration be declared to be void, invalid, illegal, or unenforceable in its
entirety, or in such a significant manner that the Association is not able to
function substantially as contemplated by the terms hereof, for any reason, by the
adjudication of any Court or other tribunal having jurisdiction over the parties
hereto and the subject matter hereof, and such adjudication occurs within ten (10)
years of the date of this Declaration, all Common Properties belonging to the
Association at the time of such adjudication shall revert to the Developer, and the
Developer shall own and operate said Common Properties as Trustee for the use
and benefit of Owners within the Properties as set forth below. If said
adjudication shall occur on a date more than ten (10) years after the date of this
Declaration, or if the Members of the Association should vote not to renew and
extend this Declaration as provided for in Article VIII, Section 1, all Common
Properties owned by the Association at such time shall be transferred to a Trustee
appointed by the Circuit Court of Chesterfield County, Virginia, which Trustee
shall own and operate said Common Properties for the use and benefit of Owners
within the Properties as set forth below:
(a) Each Residential Lot located within the Properties shall be subject
to an Annual Assessment which shall be paid by the Owner of each such
Residential Lot to the Developer or Trustee, whichever becomes the successor in
title to the Association. The amount of such Annual Assessment and its due date
shall be determined solely by the Developer or the Trustee, as the case may be,
but the amount of such Annual Assessment on any particular Residential Lot shall
not exceed the amount actually assessed against that Residential Lot in the last
year that assessments were levied by the Association, subject to the annual
inflation adjustments set forth in subparagraph (b) immediately below.
(b) The Maximum Regular Annual Assessment which may be charged
by the Developer or Trustee hereunder on any particular Residential Lot may be
automatically increased each year by an amount equal to the C.P.I. The actual
amount of such increase in the Maximum Regular Annual Assessment on a
Residential Lot shall equal the Maximum Regular Annual Assessment on such
Residential Lot for the previous year multiplied by the C.P.!. If the C.P.I. is
discontinued, then there shall be used the most similar index published by the
United States Government that may be procured indicating changes in the cost of
living.
(c) Any past due Annual Assessment together with interest thereon at
the maximum annual rate allowed by law from the due date and all costs of
collection including reasonable attorney's fees shall be a personal obligation of
the Owner at the time the Annual Assessment became past due, and it shall also
29
06SN0178-APR26-ADDENDUM-BOS
constitute and become a charge and continuing lien on the Residential Lot and all
improvements thereon, against which the Assessment has been made, in the hands
of the then Owner, his heirs, devisees, personal representatives and assigns.
(d) The Developer, or the Trustee, as the case may be, shall be
required to use the funds collected as Annual Assessments for the operation,
maintenance, repair, and upkeep of the Common Properties. The Developer or
Trustee may charge as part of the cost of such functions the reasonable value of
its services in carrying out the duties herein provided. Neither the Developer nor
the Trustee shall have the obligations to provide for operation, maintenance,
repair, and upkeep of the Common Properties once the funds provided by the
Annual Assessment have been exhausted.
(e) The Dt::veloper shall have the right to convey title to the Common
Properties, and to assign its rights and duties hereunder, provided that the
transferee acc(~pts such Properties subject to the limitations and uses imposed
hereby and affirmatively acknowledges its acceptance of the duties imposed
hereby.
(t) The Trustee shall have the power to dispose of the Common
Properties free and clear of the limitations imposed hereby; provided, however,
that such disposition shall first be approved in writing by seventy-five (75)
percent of the Owners of Properties or in the alternative shall be found to be in the
best interest of the Owners of Property by the Circuit Court of Chesterfield
County, Virginia. Tht:: proceeds of such a sale shall first be used for the payment
of any debts or obligations constituting a lien on the Common Properties, then for
the payment of any obligations incurred by the Trustee in the operation,
maintenance, repair, and upkeep of such Properties, then for the payment of any
obligations distributed among the Owners of Property, exclusive of the Trustees,
in a proportion equal to the portion that the Maximum Regular Annual
Assessment on propeI1y owned by a particular Owner bears to the total Maximum
Regular Annual Assessments for all property located within the Properties.
fN WITNESS WHEREOF, the Association and the Developer have
caused this instrument to be executed and their seals attached by their duly
authorized officers.
30
06SN0178- APIU6-ADDENDUM- BOS
REGULAR RESTRICTIVE COVENANTS
WHEREAS, STONEY GLEN SOUTH ASSOCIATES LIMITED
PARTNERSHIP, a
Virginia limited partnership ("Developer"), is the owner of certain lands located
within a community known as "Stoney Glen South" in Chesterfield County,
Virginia.
WHEREAS, the Developer wishes to declare certain restrictive covenants
affecting certain lands in Stoney Glen South.
NOW, THEREFORE, the Developer does hereby declare that the
covenants contained herein shall be covenants running with the land and shall
apply to the lands described in Exhibit "A" attached hereto and such additions
thereto as may hereinafter be made pursuant to paragraph 4.4 of Part IV hereof.
The Developer reserves in each instance the right to add additional restrictive
covenants in respect to lands to be conveyed in the future within the Properties, or
to limit therein the application of this Declaration.
DEFINITIONS
"Stoney Glen South" when used herein shall refer to the lands in
Chesterfield County, Virginia, which are shown as a part of Stoney Glen South on
the Developer's Master Plan as revised from time to time.
Whenever used herein, the term "Developer" or "the Developer" shall
refer to Stoney Glen Associates Limited Partnership, a Virginia limited
partnership, its successors and assigns, and any agent or agents appointed by
Stoney Glen South Associates Limited Partnership, its successors and assigns, to
act on its behalf for the purpose of administering or enforcing, in whole or in part,
the rights reserved unto the Developer in this Declaration.
Whenever used herein, the term "Association" shall refer to Stoney Glen
South Association, Inc., a Virginia non-profit, non-stock corporation, its
successors and assigns, and any other community or owners association within
Stoney Glen South organized or to be organized, by the Developer or by others
with the consent of the Developer.
The terms "Property" and "Properties" when used herein shall refer to any
tract of land or subdivision thereof in Stoney Glen South which has been
subjected to the provisions of this Declaration or any Supplemental Declaration
under the provisions of paragraph 4.4 of Part IV hereof, as may be referenced in
deeds issued by the Developer or any third party with the consent of the
Developer, including without limitation, all that tract or parcel of land, situate,
lying and being in Chesterfield County, Virginia, which is more particularly
31
06SN0178-APR26-ADDENDUM-BOS
described in Exhibit "A" attached hereto and by specific reference made a part
hereof.
The tenus "Property Owner", "Owner of Property", and "Owner" when
used in this Dt~claration shaH mean and refer to all owners of an interest in real
property in Stoney Glen South which has been subjected to the provisions of this
Declaration.
The term "Master Plan" when used in this Declaration shall mean and
refer to the drawing which represents the conceptual plan for the future
development of Stoney Glen South. Since the concept of the future development
of Stoney Glt:n South is subject to continuing revision and change by the
Developer, present and future references to the "Master Plan" shall be references
to the latest revision thereof.
The teml "Open Space" or "Open Space Areas" when used in this
Declaration shall mean and refer to an those parcels and tracts of land within the
Properties designated on the Master Plan or on recorded plats as "Open Space".
The covenants and restrictions below will be referred to as the General
Property Covenants of July __, 1990, will be recorded in the Clerk's Office of the
Circuit Court of Chesterfield County, Virginia, ("Clerk's Office") and may be
incorporated by reference in deeds to real property issued by the Developer by
reference to the book and page of recording in the land records of said Clerk's
Office.
PART I
COVENANTS, RESTRICTIONS AND AFFIRMATIVE
OBLIGATIONS APPLICABLE TO ALL
PROPERTIES n~ STONEY GLEN SOUTH
The primary purpose of these covenants, restrictions and affirmative
obligations ("Covenants") and the foremost consideration in the origin of same
has been the creation of a community which is aesthetically pleasing and
functionally convenient. The establishment of certain objective standards relating
to design, size and location of dwellings and other structures makes it impossible
to take full advantagt: of th(~ individual characteristics of each parcel of Property
and of technological advances and environmental values. For this reason such
standards are not established by these Covenants. However, in order to
implement the purposes of these Covenants, the Developer may establish and
amend from time to time objective standards and guidelines, including, but not
limited to, Building Guidelines, Uniform Sign Regulations, Uniform Mailbox
Regulations, and Landscape Guidelines as such terms are defined hereinafter,
which shall be in addition to and more restrictive than these Covenants, and which
shall be binding on all Property Owners within Stoney Glen South.
32
06SN0178-APR26-ADDENDUM-BOS
1.1. Building Approvals. No building, fence, or other structure shall
be erected, placed, or altered, nor shall a building permit for such improvement be
applied for on any Property in Stoney Glen South until the proposed building
plans, specifications, exterior color or finish, plot plan (showing the proposed
location of such building or structure, drives, and parking areas), and construction
schedule shall have been approved by the Developer. In addition, the Developer
may, at its election, require prior written approval of a landscape plan. The
Developer further reserves the right to promulgate and amend from time to time
architectural standards and construction specifications (hereinafter referred to as
the "Building Guidelines") for specific neighborhoods and areas or for all
Properties within Stoney Glen South, and such Building Guidelines shall
establish, define, and expressly limit those standards and specifications which will
be approved in said neighborhoods and areas or within the Properties, including,
but not limited to, architectural style, exterior color or finish, roofing material,
siding material, driveway material, fencing material, landscape design, and
construction technique. No alteration in the exterior appearance of any building,
fence or structure, including exterior color or finish, shall be made without like
prior approval by the Developer. One (1) copy of all plans and related data shall
be furnished to the Developer for its records. In the event approval of such plans
is neither granted nor denied within thirty (30) days following receipt by the
Developer of written demand for approval, the provisions of this paragraph shall
be thereby waived.
(b) In order to assure that buildings, fences and other structures
will be located and staggered so that the maximum view, privacy, sunlight, and
breeze will be available to each building or structure within the confines of each
Property, and to assure that structures will be located with regard to the
topography of each Property, taking into consideration the location of large trees
and other aesthetic and environmental considerations, the Developer reserves the
right to approve the precise dite and location of any building, fence or structure on
any Property in Stoney Glen South. Such location shall be determined only after
reasonable opportunity is afforded the Property Owner to recommend a specific
site. The provisions of this paragraph shall in no way be construed as a guarantee
that the view, privacy, sunlight, or breeze available to a building or structure on a
given Property shall not be affected by the location of a building or structure on
an adjacent Property.
1.2. Tree Remc',al. No trees measuring six (6) inches or more in
diameter at a point two feet above ground level may be removed without the prior
approval of the Developer. Approval for the removal of trees located within ten
(10) feet of a building or within ten (10) feet of the approved site for such
building will be granted unless such removal will substantially decrease the
beauty of the Property.
1.3 Landscape Guidelines. The Developer reserves the right to
promulgate and amend from time to time landscape guidelines (the "Landscape
33
06SN0178-APR26-ADDENDUM-BOS
Guidelines") which shall establish approved standards, methods, and procedures
for landscape management on specific Properties in Stoney Glen South, and such
authorized standards, methods, and procedures may be utilized by the Owners of
such specified Properties without prior wlitten approval by the Developer;
provided, however, the provisions of this paragraph 1.3 shall in no way constitute
a waiver of the requirement to receive prior written approval for the removal of
specified trees pursuant to paragraph 3 above.
1.4. Signs. Except as may be required by legal proceedings, no sign
shall be erected or maintained on any Property by anyone, including, but not
limited to, a Property Owner, a tenant, a realtor, a contractor, or a subcontractor,
until the proposed sign size, color and content and the number and location of
sign(s) shall have been approved by the Developer. The Developer further
reserves the right to promulgate and amend from time to time uniform sign
regulations ("the Uniform Sign Regulations") which shall establish standard
design criteria for all signs, including, but not limited to, real estate sales signs,
erected upon any Property in Stoney Glen South.
1.5. Mailboxes. No mailbox shall be erected or maintained on any
Property until the proposed mailbox design, color, and location have been
approved by the Developer. No alteration in the exterior appearance of any
mailbox shall be made without like prior written approval by the Developer. The
Developer further reserves the right to establish uniform mailbox regulations
(the"Uniform Mailbox Regulations") which shall define standard design criteria
for all mailboxes erected upon any Property in Stoney Glen South.
1.6. Mainttmance. It shall be the responsibility of each Property
Owner, tenant, contractor, or subcontractor to prevent the development of any
unclean, unsightly, unkempt, unhealthy, or unsafe conditions of buildings or
grounds on any Prop1erty which shall tend to substantially decrease the beauty or
safety of Stoney Glen South, the neighborhood as a whole, or the specific area.
1.7. Parking. Each Property Owner shall provide space for the parking
of automobiles off JPublic streets prior to the occupancy of any building or
structure constructed on said Property, in accordance with reasonable standards
established by the Developer.
1.8. Sewage Disposal. Prior to the occupancy of a building or structure
on any Property, proper and suitable provisions shall be made for the disposal of
sewage by connection with the sewer mains of the Chesterfield County public
sewer system or othe:r means of sewage disposal if other means are approved by
Chesterfield County and th(~ Developer for use in Stoney Glen South.
1.9. Public Water. Prior to the occupancy of a building or structure on
any Property, prop(~r and suitable provisions for water shall be made by
connection with the water lines of the Chesterfield County public water system or
34
06SN0178-APR26-ADDENDUM-BOS
any other water system approved by Chesterfield County and the Developer for
use in Stoney Glen South.
1.10. Utility Easements. The Developer hereby reserves a perpetual,
alienable, and releaseable easement and right on, over, and under the Properties to
erect, maintain, and use electric, Community Antenna Television ("C.A.T.V."),
and telephone poles, wires, cables, conduits, drainage ways, sewers, water mains,
and other suitable equipment for the conveyance and use of electricity, telephone
equipment, C.A.T.V., gas, sewer, water, drainage, or other public conveniences or
utilities on, in, or over those portions of such Property as may be reasonably
required for utility line purposes; provided, however, that no such utility easement
shall be applicable to any portion of such Property as may (a) have been used
prior to the installation of such utilities for construction or a building whose plans
were approved pursuant to these Covenants by the Developer, or (b) be
designated as the site for a building on a plot plan for erection of a building which
has been approved in writing by said Developer. These easements and rights
expressly include the right to cut any trees, bushes, or shrubbery, make any
gradings of the soil, or take any other similar action reasonably necessary to
provide economical and safe utility installation and maintain reasonable standards
of health, safety, and appearance. The Developer further reserves the right to
locate wells, pumping stations, siltation basins, and tanks within Stoney Glen
South in any Open Space or on any Property designated for such use on the
applicable plat of said Property, or to locate same upon any Property with the
permission of the Owner of such Property.
1.11. Antenna. Except as provided by law, no television antenna,
radio receiver, radio sender, or other similar device shall be attached to or
installed on any Property or on the exterior portion of any building or structure on
any Property except as follows:
(a) The provisions of this paragraph shall not prohibit the
Developer from installing or approving the installation of equipment necessary for
a master antenna system, C.A.T.V., mobile radio systems, or other similar
systems within the Properties, pursuant to the provisions of paragraph 11 above;
(b) Should C.A.T.V. services be unavailable and good
television reception not be otherwise available, a Property Owner may make
written application to the Developer for permission to install a television antenna,
stating the proposed antenna's size, height, color, location and design, and such
permission shall not be unreasonably withheld; and
(c) No satellite dish antenna in excess of inches in diameter
shall be installed upon any Property or attached to the exterior portion of any
building or structure on any Property.
35
06SN0178-APR26-ADDENDUM-BOS
1.12. Fences.
on any Property.
No chain link fence shall be erected or maintained
1.13. Dog Pens. No dog pen shall be erected or maintained on any
Property until the proposed dog pen design, color, fencing material, size, and
location have been approved in writing by the Developer. No alteration in the
exterior appearance of any dog pen shall be made without like prior written
approval by the Developer.
PART II
ADDITIONAL RESTRICTIONS AFFECTING
JRESIDENTIAL LOTS
2.1. Definition. "Residential Lots" or "Lots" as used in this Part II
shall mean and refer to all those parcels or tracts of land within the Properties
intended for subdivision or subdivided into Properties or lots intended for the
constmction of a detached house or single family dwelling unit (hereinafter
referred to as a "dwelling unit").
2.2. Minimum Size. Plans required under paragraph 1.1 of Part I
of these Covenants willl not be approved unless the proposed dwelling unit or any
other structures will have the minimum square footage of enclosed dwelling space
specified in the pertinent sales contract and deed. The term "enclosed dwelling
space" shall not include garages, terraces, decks, open porches, screened porches,
and similar areas.
2.3. Other Restrictions.
(a) All Residential Lots shall be used for residential purposes,
recreational purposes incidental thereto, and for customary accessory uses. The
use of a portion of a dwelling unit on a Residential Lot as an office by the Owner
or tenant thereof shall be considered a residential use if such use does not create
undue customer or client traffic, as determined by the Developer, to and from the
unit or the Property.
(b) No stmcture, except as hereinafter provided, shall be
erected, altered, plac1ed, or permitted to remain on any Residential Lot other than
one (1) detached single family dwelling and one (1) small lone-step, accessory
building which may include a detached private garage, provided the use of such
accessory building does not overcrowd the Property, as determined by the
Developer, and provided, further, that such building is not used for any activity
normally conducted as a business. Such accessory building may not be
constructed prior to the construction of the main building.
(c) A guest suite or like facility without a kitchen may be
included as part of the main dwelling or accessory building on any Residential
36
06SN0178-J\PR26-ADDENDUM-BOS
Lot, but such suite may not be rented or leased except as part of the entire
premises including the main dwelling, and provided, however, that such suite
would not result in over-crowding the Property, as determined by the Developer.
(d) The provisions of this paragraph 2.3 shall not prohibit the
Developer from using any dwelling units or accessory buildings as models. In
addition, the Developer may grant permission to any builder to use any specific
dwelling unit or accessory building as a model; selection of the particular
dwelling unit or accessory building and any rules or regulations governing the use
of such dwelling unit or accessory building as a model shall be determined by the
Developer.
2.4. Completion of Constmction.
(a) The exterior of each dwelling unit and all other structures
must be completed within one (1) year after the construction of same shall have
commenced, except where such completion is impossible or would result in great
hardship to the Owner or builder due to strikes, fires, national emergency or
natural calamities. Dwelling units and other structures may not be temporarily or
permanently occupied until the exteriors thereof have been completed. During the
continuance of construction, the Owner of each Residential Lot shall require his
contractor to maintain the Lot in a reasonably clean and uncluttered condition,
pursuant to the provisions of paragraph 1.6 of these Covenants.
(b) The failure to complete the exterior of any dwelling unit or
any other stmcture within the time limit set forth in paragraph 2.4(a) above shall
constitute a violation and breach of these Covenants. The Developer hereby
reserves a perpetual, alienable, and releasable easement and right on, over, and
under all Residential Lots for the purpose of taking any action necessary to effect
compliance with paragraph 4(a) above, including, but not limited to, the right to
enter upon any Property for the purpose of completing the exterior of such
dwelling unit or any other structure which is in violation of paragraph 2.4 (a).
2.5. Garbage.
(a) Each Residential Lot Owner shall provide a screened area
to serve as a service yard and an area in which garbage receptacles, fuel tanks or
similar storage receptacles, electric and gas meters, air conditioning equipment,
clotheslines, and other unsightly objects must be placed or stored in order to
conceal them from view from the road and adjacent Properties. Pursuant to the
provisions of paragraph 1.1, plans for such screened area delineating the size,
design, specifications, exterior color or finish, and location must be approved by
the Developer prior to construction. No alteration in the exterior appearance of
any screened area shall be made without like prior written approval by the
Developer. Garbage receptacles and fuel tanks may be located outside of such
screened area only if located underground, and such underground garbage
37 06SN0178-APR26-ADDENDUM-BOS
receptacles and fuel tanks and their location must likewise be approved by the
Developer prior to construction.
Garbage pickup shall only take place at the garbage receptacle location approved
by the Developer in paragraph 2.5 (a) above.
(b) The Developer reserves the right to approve the selection of
waste management vendor(s) authorized to provide garbage pickup within the
Properties.
2.6. Mobile Homes, Boat Trailers, Outbuildings, Etc. No mobile
home, trailer, bam, or other similar out building or stmcture shall be placed on
any Residential Lot at any time, either temporarily or permanently. Except as
provided below, boats, boat trailers, campers, recreational vehicles, oversized
vehicles, or utility trailers may be maintained on a Residential Lot, but only
within an enclosed or screened area such that they are not generally visible from
the road or adjacent Properties. Pursuant to the provisions of paragraph 1.1, plans
for such enclosed or screened area delineating the size, design, specifications,
exterior color or finish, and location must be approved by the Developer prior to
construction. No alteration in the exterior appearance of any enclosed or screened
area shall be made without like prior written approval by the Developer. A small
boat, boat trailer, or boat on a boat trailer may be placed in the rear yard of a
Residential Lot without being enclosed by a screened area if such boat, boat
trailer, or boat on a boat trailer does not exceed an overall height of four (4') feet
above ground level.
2.7. Temporary Structures.No structure of a temporary character other
than shelters or temporary stmctures used by the contractor during construction of
the main dwelling urlit shall be placed upon any Residential Lot at any time.
Temporary shelters or stmctures permitted during construction may not, at any
time, be used as residences or permitted to remain on the Property after
completion of construction. The design and color of stmctures temporarily placed
on a Residential Lot by a contractor shaH be subject to reasonable aesthetic
control by the Developer.
2.8. Utility Easements. The utility and drainage easement reserved
by the Developer in paragraph 1.10 of these Covenants shall be located along any
two (2) of the boundary lines of each Residential Lot.
2.9. Subdivision of Lots. No Residential Lot shall be subdivided or its
boundary lines changed, nor shall application for same be made to Chesterfield
County, except with the prior written consent of the Developer. However, the
Developer hereby expressly reserves the right to replat any Residential Lot(s)
owned by it and shown on the plat of any subdivision within the Properties in
order to create a modified building Lot or l..;ots, and to take such other steps as are
reasonably necessary to make such replatted Lot(s) suitable and fit as a building
38 06SN0178-APR26-ADDENDUM-BOS
site including, but not limited to, the relocation of easements, walkways, rights of
way, roads, bike trails, bridges, parks, recreational and community facilities, and
other amenities to conform to the new boundaries of said replatted Lot(s),
provided that no Lot originally shown on a recorded plat is reduced to a size more
than ten (10%) per cent smaller than the smallest Lot shown on the first plat ofthe
subdivision section recorded in the public records. The provisions of this
paragraph shall not prohibit the combining of two (2) or more contiguous Lots
into one (1) larger Lot, only the exterior boundary lines of the resulting larger Lot
shall be considered in the interpretation of these Covenants.
PART III
ADDITIONAL RESTRICTIONS AFFECTING OPEN SPACE AREAS
3.1. Maintenance of Open Space Areas. It is the intent of the
Developer to maintain and enhance (or to convey subject to open space
restrictions to the Association) certain Open Space Areas. The Developer
reserves the right to review and modify the Master Plan at its sole option from
time to time based upon its continuing research and design program, and such
modifications may change the boundaries of certain Open Space Areas designated
as such upon the Master Plan. The Developer further reserves the right to
transfer, sell, convey, give, donate, or lease to the Association or to any other
third party any Open Space Area.
3.2. Easements. An easement in Open Space Areas is hereby granted
to the Owners of Properties in Stoney Glen South, tenants of such Properties, and
their guests, which easement shall entitle such Owners, tenants, and their guests,
to enjoy the Open Space Areas subject to the rules and regulations established by
the Developer. The granting of such easement in no way grants to the public or to
the owners of any land outside the Properties in Stoney Glen South the right to
enter any Open Space Area without the prior written permission of the Developer.
3.3. Improvements. The Developer hereby reserves the right to
enter upon any Open Space Area for the purpose of constructing, landscaping,
maintaining, and operating any community facilities, including, but not limited to,
parks, playgrounds, gazebos, picnic shelters, picnic tables, walking trails, bike
trails, and, subject to limitations imposed by governmental authorities, scenic
roadsides and neighborhood entrance areas. The Developer further reserves the
right to authorize the construction, landscaping, maintenance, or operation of such
facilities within Open Space Areas by the Association or any other third party.
3.4. Trash and Garbage. No trash, garbage, sewage, sawdust, or any
unsightly or offensive material shall be placed upon any Open Space Area, except
as is temporary and incidental to the bona fide improvement of the area in a
manner consistent with its classification as an Open Space Area.
39 06SN0178-APR26-ADDENDUM-BOS
3.5. Reservation of Easement. The Developer hereby reserves every
reasonable use and enjoyment of said Open Space Areas, in a manner not
inconsistent with the provisions of this Declaration.
3.6. Conveyance of Open Space Are'!. The Developer hereby
reserves the right to convey Open Space Areas to the Association. Such
conveyance shall be made subject to the provisions of this Part III, all other
restrictions and limitations of record, and any other restrictions or limitations
which the Developer, in its sole and uncontrolled discretion, shall elect to impose.
As an appurtenance to such conveyances, the Association shall have all of the
powers, immunities, and privileges reserved unto the Developer in this Part III as
well as all of the Developer's obligations with respect thereto, provided, however,
that so long as the Developer is the Owner of Property subject to the provisions of
this Declaration, the Developer, in addition to and jointly with the Association,
shall retain all rights of easement and entry granted for the purposes of correcting,
repairing, enhancing, improving, cleaning, preserving, clearing out, removing, or
taking any action to prevent a violation of these Covenants. Property conveyed to
the Association pursuant to the authority of this paragraph 3.6 shall become
"Common Properties" as prescribed by the Declaration of Covenants and
Restrictions of the Stoney Glen South Association, a Virginia General Partnership
("Declaration"), which is being recorded in the Clerk's Office contemporaneously
herewith.
PART IV
ADDITIONS., LIMITATIONS; DURi\TION AND
VIOLATION OF COVENANTS
4.1. Term. (a) All Covenants set forth in this Declaration and any
amendments thereto shall run with the land and shall be binding on all parties and
persons claiming under them, specifically including, but not limited to, the
successors and assigns, if any, of the Developer for a period of thirty (30) years
from the date of this Declaration. Upon the expiration of said thirty (30) year
period all said Covenants shall be automatically extended for successive periods
of ten (10) years. Th;: number of ten (10) year extension periods hereunder shall
be unlimited, provided, however, that there shall be no extension of this
Declaration if during the last year of the initial thirty (30) year period, or during
the last year of any subsequent ten (10) year extension period, seventy-five (75%)
percent_or more of the total votes (as determined in subparagraph 4.1 (c)
hereinafter) entitled to be cast by all Owners of all Properties subject to the
provisions of this De:claration vote in favor of tenninating this Declaration at the
end of its then current term at a Duly Called Meeting (as hereinafter defined) of
the Owners of the Properties. The presence at said meeting of Owners or ballots
entitled to cast seventy-five (75%) percent of the total vote of all the Owners of
all the Properties shall constitute a quorum. In the event that the Owners of the
Properties vote to terminate this Declaration, the Developer shall execute a
certificate which shall set forth the Resolution of Termination adopted by the
40 06SN0178-APR26-ADDENDUM-BOS
Owners, the date of the meeting of the Owners at which such Resolution was
adopted, the date that notice of such meeting was given, the total number of votes
of all Owners of all the Properties, the total number of votes required to constitute
a quorum at said meeting, the total number of votes present at said meeting, the
total number of votes necessary to adopt a Resolution terminating this
Declaration, the total number of votes cast in favor of such Resolution, and the
total number of votes cast against such Resolution. Such certificate shall be
recorded in the Clerk's Office and may be relied upon for the correctness of the
facts contained therein as they relate to the termination of this Declaration.
(b) A "Duly Called Meeting" shall mean and refer to any open
meeting of the Owners of the Properties (or a portion of said Owners) called by
the Developer for said purposes, subject to the giving of proper notice and the
quorum requirements established in subparagraph 4.1(a) and in paragraph 4.2
herein. "Proper notice" shall be deemed to be given when delivered personally or
sent by mail to each such Owner not less than thirty (30) days in advance of said
meeting. There shall be sent with such notice a statement of certain motions to be
introduced for vote of the Owners and a ballot on which each Owner may vote for
or against each motion. Each ballot which is presented at such meeting shall be
counted in calculating the quorum requirements for said meeting, provided,
however, such ballots shall not be counted in determining whether a quorum is
present to vote upon motions not appearing on the ballot.
(c) The votes to which each Owner of Property subject to this
Declaration shall be entitled shall be determined as follows:
(i) The Owner of any Property which is also subject to the provisions
of the Joint Declaration shall be entitled to as many votes as equals the total
number of votes to which he is entitled as a Type "A" Member of the Association
as defined and determined in said Declaration.
(ii) The Owner of any Property which is not subject to said
Declaration shall be entitled to as many votes as equals the total number of votes
to which he would be entitled as a Type "A" Member of the Association if his
Property were to be subjected to said Declaration.
4.2. Amendment. All proposed amendments to this Declaration shall
be submitted to a vote of the Owners of Properties substantially affected by a
change in Covenants at a Duly Called Meeting of said Owners. Unless the
contrary shall be determined by a court of equity jurisdiction, "substantially
affected" shall mean those Properties shown on (a) the. plats showing the
Properties to be modified in permitted use by the change, and (b) the plats which
subdivided the Property immediately abutting the Property shown on plats
identified in recorded in the Clerk's Office. Any such amendment shall be
deemed approved if two-thirds (2/3) of the votes (as determined in subparagraph
4.1 (c) hereinabove) cast at such meeting vote in favor of such amendment. The
41 06SN0178-APR26-ADDENDUM-BOS
presence at said meeting of Owners or ballots entitled to cast sixty (60%) percent
of the total vote of all the Owners of Property substantially affected by a change
in Covenants shall constitute a quomm. If the required quorum is not present at
said meeting, the Developer may, in its sole and uncontrolled discretion, call
another meeting or meetings subject to the giving of proper notice, and the
required quorum at such subsequent meeting or meetings shall be one-half (112)
of the required quorum at the preceding meeting. If any proposed amendment to
this Declaration is approved by the Owners as set forth above, the Developer shall
execute an Addendum to this Declaration which shall set forth the amendment,
the effective date of the amendment (\\Thich in no event shall be less than sixty
(60) days after the date of the meeting of the Owners at which such amendment
was adopted), the date of the meeting of the Owners at which such amendment
was adopted, the date that notice of such meeting was given, the total number of
votes of Owners of Properties substantially affected by such amendment, the total
number of votes required to constitute a quorum at a meeting of said owners, the
total number of votes of said Owners present at said meeting, the total number of
votes necessary to adopt such amendment, the total number of votes cast in favor
of such amendment, and the total number of votes cast against such amendment.
Such Addendum shaU be recorded in the Clerk's Office.
4.3. Additional Covenants.The Developer hereby reserves the right to
add additional restric1tive covenants in respect to lands within the Properties to be
conveyed in the future by the Developer to the Association or to any other third
party, or to limit therein the application of these Covenants. The right to add
additional restrictions or to limit the application of these Covenants shall be
reasonably exercised.
4.4. Additions. (a) The Developer hereby reserves the right to
bring within the plan and operation of this Declaration any other property
acquired by the Developer which is adjacent to or near the Properties. Such
property may be subjected to this Declaration as one parcel or as several smaller
parcels simultaneously or at different times. The additions authorized herein shall
be made by recording a Supplementary Declaration of Rights, Restrictions,
Affirmative Obligations and Conditions with respect to the additional property
which shall extend the operation and effect of the Covenants to such additional
property. Such Supplementary Declaration may contain such complementary
additions and/or modifications of the Covenants as may be necessary or
convenient, in the determination of the Developer, to reflect the different
character, if any, of1the added properties and as are not inconsistent with the plan
of this Declaration, but such modifications shall have no effect upon the Property
described in Exhibit "A" or upon any other prior additions to the Properties.
(b) Upon the prior written approval of the Developer, the
owner of any property who desires to bring such property within the plan and
operation of this Dedaration and to subject it to the jurisdiction of the Developer
shall record a Supplementary Declaration of Rights, Restrictions, Affirmative
42 06SN0178-APR26-ADDENDUM-BOS
Obligations and Conditions with respect to the additional property which shall
extend the operation and effect of the Covenants to such additional property.
Such Supplementary Declaration may contain such complementary additions
and/or modifications as may be necessary or convenient, in the determination of
the Developer, to reflect the different character, if any, ofthe added properties and
as are not inconsistent with the plan of this Declaration, but such modifications
shall have no effect upon the Properties described in Exhibit "A" or upon any
other additions to the Properties.
4.5. Enforcement. In the event of a violation or breach of any of the
Covenants by any Owner, tenant of such Owner, or agent of such Owner, the
Owners of Properties in the neighborhood or in Stoney Glen South, or any of
them, jointly or severally, shall have the right to proceed at law or in equity to
compel a compliance to the terms hereof or to prevent the violation or breach in
any event. In addition to the foregoing, the Developer and/or the Association
shall have the right to proceed at law or in equity to compel a compliance to the
terms hereof or to prevent the violation or breach in any event.
4.6. Other Remedies. In addition to the foregoing, the Developer
shall have the right, whenever there shall have been placed or constructed on any
Property in Stoney Glen South any building, structure, object, material, or
condition which is in violation of these restrictions, to enter upon such Property
where such violation exists and summarily abate or remove the same at the
expense of the Owner, if after thirty (30) days written notice of such violation it
shall not have been corrected by the Owner, tenant, or agent of the Owner;
provided, however, that if the Developer in its reasonable discretion determines
that immediate corrective action is required, and such action is not performed
immediately by the owner, tenant, or agent of the Owner, the Developer or its
agent shall have the right to enter immediately and summarily abate or remove
such violation at the expense of the Owner. Any such entry and abatement or
removal shall not be deemed a trespass.
4.7. No Trespass. Whenever the Developer or its agent is permitted by
this Declaration to correct, repair, enhance, improve, clean, preserve, clear out,
remove, or take any action on any Property or on the easement areas adjacent
thereto, entering the Property and taking such action shall not be deemed a
trespass.
4.8. No Waiver. The failure to enforce any Covenant, regardless of
how long such failure shall continue, shall not constitute a waiver of or a bar to
such right to enforce.
4.9. Costs; Lien.
(a) Costs. Whenever the Developer is permitted by this
Declaration to correct, repair, enhance, improve, clean, preserve, clear out,
43 06SNOl78-APR26-ADDENDUM-BOS
remove, or take any action on any Property or on the easement areas adjacent
thereto and entitled to have such cost paid by the Owner of the Property on or
adjacent to which such corrective action is performed, the cost together with
interest thereon at the maximum annual rate permitted by law from the due date
and costs of collection therefor including a reasonable attorney's fee, shall be a
charge and continuing lien on the real Property and improvements thereon against
which such cost is charged, in the hands of the then Owner, his heirs, devisees,
personal representatives, tenants, and assigns, and in addition shall also be the
personal obligation of the Owner of such real Property at the time when such cost
becomes due and payable. The cost of cOITective action shall be billed at the
completion of such corrective action, and all bills shall be due and payable thirty
(30) days from the dat,e of mailing of smne.
(b) Judgment. If the cost of corrective action billed to an
Owner is not paid within thirty (30) days after the due date, the Developer may
bring an action at law against the Owner personally to recover such cost, plus the
costs of preparing the filing of the complaint in such action and a reasonable
attorney's fee; in the e:vent a judgement is obtained, such judgement shall include
interest on the cost as above provided and a reasonable attorney's fee together
with the costs of the action.
( c) Subordination of Lien. The lien provided for herein
shall be subordinate to the lien of any first deed of trust now or hereafter placed
upon any Property subject to these Covenants. In the event a creditor (other than
the Developer or the creditor of the Developer) acquires title to any Property
pursuant to foreclosure or any other proceeding or deed in lieu of foreclosure, said
creditor shall be subject to such lien placed upon such Property during the time in
which the creditor hol,ds title to such Property
4.10. Assignment of Rights.
(a) The Developer hereby reserves the right to assign in whole
or in part to the Association its rights under these Covenants to grant consents and
approvals or make determinations (or to withhold such consents or disapprovals),
to establish rules and regulations, to administer and enforce the provisions of this
Declaration, and all. other rights reserved herein by the Developer. The
assignment of such rights shall be subject to any conditions, limitations, or
restrictions which the: Developer, in its sole and uncontrolled discretion, may elect
to impose at the time of assignment. Following the assignment of such rights, the
Association shall assume all of the Developer's obligations which are incident
thereto (if any), and the Developer shall have no further obligation or liability
with respect thereto. The assignment of such right or rights by the Developer to
the Association shaH be made by written instrument which shall be recorded in
the Clerk's Office.
44 06SNOl78-APR26-ADDl~NDUM-BOS
(b) Notwithstanding anything in the foregoing to the contrary,
so long as the Developer is the Owner of Property subject to the Provisions of this
Declaration, the Developer, in addition to and jointly with the Association, shall
retain all rights of easement reserved unto it in this Declaration, and shall,
furthermore, retain all rights of entry granted in this Declaration for the purposes
of correcting, repairing, enhancing, improving, cleaning, preserving, clearing out,
removing, or taking any action to prevent a violation of these Covenants.
4.11. Appointment of Agent. The Developer hereby reserves the
right to appoint the Association its agent for the purpose of administering and
enforcing, in whole or in part, these Covenants and exercising the Developer's
rights hereunder. Such appointment may be temporary or permanent, and shall be
subject to any conditions, limitations, or restrictions which the Developer, in its
sole and uncontrolled discretion, may elect to impose. Upon any such
appointment of the Association as agent by the Developer, the Association shall
assume any obligations which are incident thereto.
4.12. Declaration. The Declaration is being recorded
contemporaneously herewith in the Clerk's Office. Properties described in
Exhibit "A" and Owners of Properties described in Exhibit "A" shall also be
subject to the provisions ofthe Declaration. Additional Properties brought within
the plan and operation of this Declaration pursuant to paragraph 4.4 hereinabove,
and Owners of such additional Properties, may become subject to the provisions
of the Declaration, pursuant to the rules and regulations stipulated in Article II of
the Declaration.
4.13. Conformance With Zoning and Master Plan. Notwithstanding
anything contained herein to the contrary, all the provisions of these Covenants
shall be subject to and conform with the provisions of (i) the Zoning Ordinance of
the County of Chesterfield, Virginia, and the rules and regulations promulgated
thereunder, as may from time to time hereafter be amended or modified, and (ii)
the Master Plan for the development of Stoney Glen South as approved by the
Board of Supervisors ofthe County of Chesterfield, Virginia, as may from time to
time hereafter be amended or modified.
4.14. No Liability. The Developer shall not be liable to any Owner or
to any other person on account of any claim, liability, damage, or expense
suffered, incurred by, or threatened against any Owner or such other person
arising out of or in any way relating to the subject matter of any reviews,
acceptances, inspections, permissions, consents, required approvals or
determinations which must be obtained from the Developer or from the County of
Chesterfield, Virginia, whether given, granted, or withheld.
4.15. Consents Whenever any consent, approval or the right to
make any determination is required of or reserved for the Developer pursuant to
this Declaration, unless expressly stated to the contrary, such consent, approval or
45 06SN0178-APR26-ADDENDUM-BOS
determination may be given, withheld or made by the Developer upon any
ground, including purely aesthetic considerations, which in the sole and
uncontrolled discretion of the Developer shall seem sufficient. In the event a
written request for any such consent, approval or determination (accompanied,
where appropriate, by all documents required to be delivered to the Developer in
connection therewith) is neither granted nor denied within thirty (30) days
following the date of receipt by the Developer of the request, the Developer shall
be deemed to have waived the requirement for its consent or approval or waived
its right to make a determination.
4.16. No Obligation.The provisions of paragraphs 1.6, 1.10, 2.4(b), 3.3,
3.6 and 4.9 of this Declaration shall not be construed to create any obligation on
the part of the Developer to take any action in connection with the matters set
forth in such paragraphs.
4.17. Severability. Should any covenant herein contained, or any article,
section, subsection, sentenc(~, clause, phrase, or term of this Declaration be
declared to be void, invalid, illegal, or unenforceable, for any reason, by the
adjudication of any court or other tribunal having jurisdiction over the parties
hereto and the subject matter hereof, such judgment shall in no wise affect the
other provisions hereof~ which are hereby to be severable and which shall remain
in full force and effect.
46 06SN0178-i\PR26-ADDENDUM-BOS
Februar)T 21,2006 CPC
~1arch 21, 2006 CPC
April 26, 2006 BS
STAFF'S
REQUEST ANALYSIS
AND
RECOMMENDA TION
06SN0178
The Reeds Landing Corporation
Matoaca Magisterial District
Ettrick Elementary, Matoaca Middle and Mataoca High Schools Attendance Zones
North line of Hickory Road
REQUEST: Rezoning from Agricultural (A) to Residential (R-15).
PROPOSED LAND USE:
A single-family residential subdivision with a minimum lot size of 15,000 square
feet is planned. A maximum of 330 dwelling units would be permitted, yielding a
density of approximately 1.6 dwelling units per acre. (Proffered Condition 5)
PLANNING COMMISSION RECOMMENDATION
RECOMMEND DENIAL.
AYES: MESSRS. WILSON, GECKER, BASS AND LITTON.
ABSENT: MR. GULLEY.
STAFF RECOMMENDATION
Recommend denial for the following reason:
While the proposed density complies with the Southern and Western Area Plan, the
proposal fails to provide for adequate transportation improvements as recommended by
the Thoroughfare Plan, a component of the Comprehensive Plan.
(NOTE: THE ONLY CONDITION THAT MAYBE IMPOSED IS A BUFFER CONDITION.
THE PROPERTY OWNER(S) MA Y PROFFER OTHER CONDITIONS. THE CONDITIONS
NOTED WITH "STAFF/CPC" WERE AGREED UPON BY BOTH STAFF AND THE
Providing a FIRST CHOICE community through excellence in public service
COMMISSION. CONDITIONS WITH ONLY A "STAFF" ARE RECOMMENDED SOI~l~L y
BY STAFF. CONDITIONS WITH ONI-,Y A "epe" ARE ADDITI()NAI~ ('ONf)rrI()NS
RECOMMENDED BY THE PLANNING COMMISSION.)
PROFFERED CONDITIONS
1. Dedications.
a. In conjunction with recordation of the initial subdivision plat or within
sixty (60) days from a written request by the Transportation Department,
whichever occurs first, forty-five (45) feet of right-of-way on the north
side of Hickory Road, measured from the centerline of that part of
Hickory Road immediately adjacent to the property, shall be dedicated,
free and unrestricted, to and for the benefit of Chesterfield County.
b. In conjunction with recordation of the initial subdivision plat, a ninety (90)
foot wide right-of-way for a north/south major arterial (the "North/South
Arterial") from Hickory Road to the northern property line shall he
dedicated, free and unrestricted, to and for the benefit of Chesterfield
County. The exact location of this right-of-way shall be approved by the
Transportation Department. (T)
2. Access.
a. Direct vehicular access from the property to Hickory Road shall be limited
to two (2) public roads, the North/South Arterial and one (1) other public
road. The North/South Arterial shall align the Russwood Road
intersection. The exact location of these public roads shall be approved by
the Transportation Department.
b. Direct vehicular access from the property to the North/South Arterial shall
be limited to one (1) public road. The exact location of this public road
shall be approved by the Transportation Department. (T)
3. Road Improvements.
To provide an adequate roadway system, the developer shall provide the
following road improvements with initial development of the property:
a. Construction of a two-lane road for the North/South Arterial, based on
VDOT Urban Minor Arterial Standards (50 MPH) with modifications
approved by the Transportation Department, from Hickory Road to the
north approximately 1700 feet. The exact length of this improvement
shall be approved by the Transportation Department.
2
06SN0178-APR26-BOS
b. Construction of additional pavement along the North/South Arterial at its
intersection with Hickory Road to provide a three-lane typical section (i.e.,
one (1) northbound lane and two (2) southbound lanes). The exact length
of these improvements shall he approved by the Transportation
Department.
c. Construction of additional pavement along the North/South Arterial at the
approved public road intersection to provide left and right turn lanes,
based on Transportation Department standards.
d. Construction of additional pavement along Hickory Road at each
approved public road intersection, including at the North/South Arterial
intersection, to provide left and right turn lanes, based on Transportation
Department standards.
e. Widening/improving the north side of Hickory Road to an eleven (11) foot
wide travel lane, measured from the centerline of the existing pavement,
with an additional one (1) foot wide paved shoulder plus a seven (7) foot
wide unpaved shoulder and overlaying the full width of Hickory Road
with one and one-half (1.5) inches of compacted bituminous asphalt
concrete, with modifications approved by the Transportation Department,
for the entire property frontage.
f. Dedication to Chesterfield County, free and unrestricted, of any additional
right-of-way (or easements) required for the improvements identified
above. (T)
4. Cash
The applicant, subdivider, or assignee(s) shall pay the following to the County of
Chesterfield, prior to the issuance of a building permit, for infrastructure
improvements within the service district for the property:
a. $15,600 per dwelling unit, if paid prior to July 1, 2006; or
b. The amount approved by the Board of Supervisors not to exceed $15,600
per dwelling unit adjusted upward by any increase in the Marshall and
Swift Building Cost Index between July 1, 2005 and July 1 of the fiscal
year in which the payment is made if paid after June 30, 2006.
c. Cash proffer payments shall be spent for the purposes proffered or as
otherwise permitted by law. (B&M)
5. Densitv. The total number of dwelling units shall not exceed 330. (P)
3
06SN0178-APR26-BOS
6. Manufactured Homes.
(a) Manufactured homes shall not be permitted on the Property.
(b) The following shall be recorded as a restrictive covenant in conjunction
with the recordation of any subdivision plat for the property. "No
manufactured homes shall be allowed to become a residence, temporary or
otherwise." (P)
7. The Community Identification Sign shall be similar in appearance to the
photograph titled Exhibit "A", shall be of brick construction, and shall have a
maximum area of twenty-five square feet. (P)
8. The fifty (50') foot buffer required by Ordinance along Hickory Road shall be
maintained in open space. Prior to the recordation of the initial subdivision plat,
the developer shall build a wooden four board fence, as depicted in the
photograph marked Exhibit "8" within the fifty (50') buffer. Such fence shall run
generally parallel to Hickory Road, along the entire length of the property
frontage. The exact location and design shall be approved by the Planning
Department at the time of tentative subdivision revie,v. (P)
GENERAL INFORMATION
Location:
North line of Hickory Road at its intersection with Halloway Avenue. Tax IDs 78] -618-
6468; 782-619-6148; 784-619-4378; and 784-620-1961 (Sheets 41 and 45).
Existing Zoning:
A
Size:
205.1 acres
Existing Land Use:
Vacant
Adlacent Zoning and Land Use:
North, East and West - A; Single-family residential or vacant
South - A & R-7; Single-family residential, public/semi-public (Matoaca Middle School
East Campus & a church) or vacant
4
06SN0178-APR26-BOS
UTILITIES
Public Water System:
A sixteen (16) inch water line extends along Halloway Road and west along Hickory Road.
This water line is adjacent to the southwestern comer of this site. T11is site is wit11in an area
required by the Southern and Western Area Plan to use public water.
Per Utilities Department Design Specifications (DS-21), wherever possible, two (2) supply
points shall be provided for subdivisions containing more than twenty-five (25) lots.
Public Wastewater System:
There is an existing eighteen (18) inch wastewater trunk line extending along Old T o\vn
Creek approximately 9,250 feet east of this site. This site is within the Old To\vn C~reek
drainage basin. This area is required to use public wastewater by the Southern and
Western Area Plan. An off-site extension of approximately 9,250 feet as well as
extending on-site the wastewater truck line along the creek boundary to the westernmost
property line will be required with development of this site.
ENVIRONMENT AL
There are no known on- or off-site drainage or erosion problems and none are anticipated after
development. The subject property drains to Big Branch and then via Big Branch to Old 'fawn
Creek. Big Branch which forms the northern boundary line of the property, is a perennial stream
and, as such, is subject to a 100 foot conservation area. The majority of the property outside of
the Resource Protection Area (RP A) area is open farm fields.
PUBLIC FACILITIES
The need for fire, school, library, park and transportation facilities is identified in the Public
Facilities Plan, the Thoroughfare Plan and the Capital Improvement Program. This development
will have an impact on these facilities.
Fire Service:
The Public Facilities Plan indicates that fire and emergency medical service (EMS) calls
are expected to increase forty-four (44) to seventy-eight (78) percent by 2022. Six (6)
new fire/rescue stations are recommended for construction by 2022 in the Plan. In
addition to the six (6) new stations, the Plan also recommends the expansion of five (5)
existing stations. Based on 330 dwelling units, this development will generate
approximately seventy-six (76) calls for fire and emergency medical service each year.
The applicant has addressed the impact of this development on fire services. (Proffered
Condition 4)
5
06SN0178-APR26-BOS
The Matoaca Fire Station, Company Number 8 currently provides fire protection and
emergency medical service. When the property is developed, the number of hydrants~
quantity of water needed for fire protection, and access requirements will he evaluated
during the plans review process.
Schools:
Approximately 175 students will be generated by this development. Currently, this site
lies in the Ettrick Elementary School attendance zone: capacity - 615, enrollment - 514;
Matoaca Middle School zone: capacity - 1,436, enrollment - 1 ,069~ and Matoaca High
School zone: capacity - 1,594, enrollment - 1,737. The enrollment is based on September
30, 2005 and the capacity is as of 2005-2006.
This development will have an impact on schools. There are currently two (2) trailers at
Ettrick Elementary and three (3) at Matoaca Middle.
This case, combined with other tentative residential developments and zoning cases in the
zones will continue to push these schools to capacity, especially at the high school level.
This case could necessitate some form of relief in the future.
The applicant has addressed the impact of the development on schools. (Proffered
Condition 4)
Libraries:
Consistent with the Board of Supervisors' policy, the impact of development on library
services is assessed countywide. Based on projected population growth, the Public
Facilities Plan identifies a need for additional library space throughout the County.
Development of property in this area would most likely affect the existing Ettrick-
Matoaca Lil;>rary. The Public Facilities Plan identifies a need for additional library space
in the Ettrick-Matoaca area. The applicant has addressed the impact on library facilities.
(Proffered Condition 4)
Parks and Recreation:
The Public Facilities Plan identifies the need for three (3) new regional parks, seven (7)
community parks, twenty-nine (29) neighborhood parks and five (5) community cent€rs
by 2020. In addition, the Public Facilities Plan identifies the need for ten (10) new or
expanded special purpose parks to provide water access or preserve and interpret unique
recreational, cultural or environmental resources. The Plan identifies shortfalls in trails
and recreational historic sites.
The applicant has addressed the impact of this proposed development on parks and
recreation facilities. (Proffered Condition 4)
6
06SN0178-APR26-BOS
Transportation:
The property (205.1 acres) is currently zoned Agricultural (A), and the applicant is
requesting rezoning to Residential (R-15). The applicant has proffered a maximum
density of 330 lots (Proffered Condition 5). Based on single-family trip rates,
development could generate 3,120 average daily trips. These vehicles will be initially
distributed along Hickory Road, which had a 2004 traffic count of2,383 vehicles per day.
The Transportation Department cannot support this request because the applicant has not
adequately addressed the traffic impact.
The Thoroughfare Plan identifies Hickory Road as a major arterial with a recommended
right of way width of ninety (90) feet. The applicant has proffered to dedicate forty-five
(45) feet of right of way measured from the centerline of Hickory Road, in accordance
with that Plan. (Proffered Condition 1.a)
The Thoroughfare Plan identifies: 1) a proposed north/south major arterial extending
through the property and connecting Hickory rqad at Halloway Avenue with Woodpecker
Road at Matoaca Road; 2) a north/south major arterial east of the subject property,
extending from River Road, crossing Hickory Road and Woodpecker Road, and then
extending north to Branders Bridge Road; and 3) an east/west major arterial connecting
both north/south major arterials with Woodpecker Road east of the property. All of these
proposed major arterials have recommended right of way widths of ninety (90) feet.
Both north/south major arterials are not necessary for the anticipated growth in this area.
Staff supports modifying the Thoroughfare Plan by: 1) deleting the north/south arterial
connecting Hickory Road at Halloway Avenue with Woodpecker Road at Matoaca Road~
2) relocating a section of the north/south major arterial east of the subject property to
intersect Hickory Road at Russwood Road; and 3) deleting a short section of the
east/west major arterial. Consistent with that modification, the applicant has proffered to
dedicate a ninety (90) foot wide right of way for a north/south major arterial (i.e.~ the
"North/South Arterial") from Hickory Road at the Russwood Road intersection
northward through the property. (Proffered Condition 1. b)
Access to major arterials, such as Hickory Road and the North/South Arterial, should be
controlled. The applicant has proffered that direct access from the property to Hickory
Road will be limited to two (2) public roads; the North/South Arterial and one (1)
additional public road (Proffered Condition 2.a). The applicant has also proffered that
direct access from the property to the North/South Arterial will be limited to one (1)
public road. (Proffered Condition 2.b)
The traffic impact of this development must be addressed. Staff cannot support the
request because the applicant is unwilling to construct the entire length of the
North/South Arterial through the property, a total distance of approximately 4,000 feet.
The applicant has proffered to construct less than half the total distance of the
North/South Arterial. Specifically, the applicant has proffered to: 1) construct the
North/South Arterial as a two-lane road from Hickory Road to the north approximately
1,700 feet; 2) construct additional pavement along the North/South Arterial at its
intersection with Hickory Road to provide a three-lane typical section (i.e., one (1)
'7
I
06SN0178-APR26-BOS
northbound lane and two (2) southbound lanes); 3) construct additional pavement along
the North/South Arterial at the approved public road intersection to provide left and right
turn lanes, based on Transportation Department standards; 4) construct additional
pavement along Hickory Road at each approved public road intersection, including at the
North/South Arterial intersection, to provide left and right turn lanes, based on
Transportation Department standards; and 5) widen/improve the north side of Hickory
Road to an eleven (11) foot wide travel lane, measured from the centerline of the existing
pavement, with an additional one (1) foot wide paved shoulder plus a seven (7) foot wide
unpaved shoulder, and overlaying the full width of the road with asphalt for the entire
property frontage (Proffered Condition 3). Based on Transportation Department
standards, it is anticipated that a left turn lane along the North/South Arterial at the public
road intersection will be required, and that left and right turn lanes along Hickory Road at
both public road intersections will be required. According to Proffered Condition 3, all of
these improvements will he provided with initial development on the property.
Area roads need to be improved to address safety and accommodate the increase in traffic
generated by this development. Hickory Road will be directly impacted. Sections of
Hickory Road have approximately twenty (20) foot wide pavement with no shoulders.
The capacity of that section of Hickory Road is acceptable (Level of Service B) for the
volume of traffic. it carries (2,383 VPD).
The applicant has also proffered to contribute cash, in an amount consistent with the
Board of Supervisors' Policy, towards mitigating the traffic iInpact of tl1e residential
development (Proffered Condition 4). As development continues in this part of the
county, traffic volumes on area roads will substantially increase. Casll proffers alone \vill
not cover the cost of the improvements needed to accommodate the traffic increases. No
public road improvements in this part of the county are currently included in the Six- Year
Improvement Plan.
As previously stated, the applicant is unwilling to construct the eIltire length of the
North/South Arterial through the property; therefore, the Transportation Department
cannot support the request.
8
06SN0178-APR26-BOS
Financial Impact on Capital Facilities:
PER U-NIT
Potential Number of New Dwelling Units 330* 1.00
Population Increase 897.60 2.72
Number of New Students
Elementary 76.89 0.23
Middle 42.90 0.13
High 55.77 0.17
TOTAL 175.56 0.53
Net Cost for Schools 1,764,840 5,348
Net Cost for Parks 199,320 604
Net Cost for Libraries 115,170 349
Net Cost for Fire Stations 133,650 405
Average Net Cost for Roads 2,950,860 8.942
TOT AL NET COST 5,163,840 15 ~648
* Based on a proffered maximum yield of 330 dwelling units (Proffered Condition 5). The
actual number of units and corresponding impact may vary.
As noted, this proposed development will have an impact on capital facilities. Staff has
calculated the fiscal impact of every new dwelling unit on schools, roads, parks, libraries, a11d
fire stations at $15.,648 per unit. The applicant has been advised that a maximum proffer of
$15,600 pef unit would defray the cost of the capital facilities necessitated by necessitated by this
proposed development. Consistent with the Board of Supervisors' policy, and proffers accepted
from other applicants, the applicant has offered cash to assist in defraying the cost of this
proposed zoning on such capital facilities. (Proffered Condition 4)
Note that circumstances relevant to this case, as presented by the applicant, have been reviewed
and it has been determined that it is appropriate to accept the maximum cash proffer in this case.
LAND USE
Comprehensive Plan:
Lies within the boundaries of the Southern and Western Area Plan which suggests the
property is appropriate for residential 1.01 to 2.5 dwelling units per acre.
9
06SN0178-APR26-BOS
Area Development Trends:
The majority of the surrounding properties are zoned Agricultural (A) and are occupied
by single-family residential uses on acreage parcels or are vacant. Matoaca Middle
School East Campus is located on property immediately south of the request property. A
small area to the south is zoned Residential (R-7) and is occupied by a church. It is
anticipated that residential use will continue in the area at densities suggested by the Plan.
Densitv:
Proffered Condition 3 limits development to a maximum of 330 dwelling units yielding a
density of approximately 1.6 units per acre, consistent with the recommendations of the
Southern and Western Area Plan.
Use Limitations:
To address concerns expressed by area citizens, Proffered Condition 6(a) precludes
manufactured homes. The Ordinance also precludes manufactured homes. The proffer
has been offered in anticipation of a potential State Law change which may require
localities to allow manufactured homes in residential districts. If the State La\\! is
amended, depending upon the adopted language, this proffer mayor may not be
enforceable in the future.
Restrictive Covenants:
Proffered Condition 6(b) requires restrIctIve covenants be recorded which preclude
manufactured homes. It is important to note that the County will only ensure the
recordation of the covenant and will not be responsible for its enforcement. Once the
covenant is recorded, it can be changed.
Community Identification Sign:
Proffered Condition 7 requires the community identification sIgn to be similar In
appearance to the sign in Exhibit A.
Fencing:
Proffered Condition 8 requires a four (4) foot board fence to be installed within the buffer
along Hickory Road as depicted in Exhibit B.
CONCLUSIONS
While the proposed density complies with the Southern and Western Area Plan, the proposal
fails to provide for adequate transportation improvements, as recommended by the Thorou~hfare
Plan, a component of the Comprehensive Plan. Given this consideration, denial of this request is
recommended.
10
06SN0178-APR26-BOS
CASE HISTORY
Planning Commission Meeting (2/21/06):
On their own motion, the Commission deferred this case to March 21, 2006.
Staff (2/22/06):
The applicant was advised in writing that any significant, new or revised information
should be submitted no later than February 27, 2006, for consideration at the
Commission's March 21, 2006, public hearing.
Applicant, Staff, Matoaca District Planning Commissioner and Area Residents (3/17/06):
A meeting was held to discuss the request. Citizens expressed concerns relative to traffic,
impact on capital facilities, development within rural area, proposed density, lack of
proposed open space in the development, drainage and on-site graveyards.
Applicant (3/20/06):
Additional proffered conditions were submitted.
Planning Commission Meeting (3/21/06):
The applicant did not accept the recommendation. There was OpposItIon present.
Concerns were expressed regarding the condition of area roads; density; rural character;
impact on capital facilities; protection of graves; drainage and erosion; adjacent shooting
range; impacts to police and fire; and rate of growth in area.
Mr. Bass stated that area roads are not in shape to handle additional development; that the
north/south road should be constructed across the entire length of the property~ that the
proposed density was too high; the rural character was not being maintained; and the only
open space being preserved is within Resource Protection Areas (RPAs).
The Commission had concerns with the case as presented; wanting guarantees~ being in
the wrong place at the wrong time; issues with infrastructure~ cash in lieu of road.
The Commission expressed concerns that representations of the quality of the
development (i,e., sidewalks, landscaping, open space, quality of housing) were not
11
06SNOI78-APR26-B()S
guaranteed by conditions; that the development was premature; and there is insufficient
infrastructure to accommodate the development.
On motion of Mr. Bass, seconded by Mr. Gecker, the Commission recommended denial.
AYES: Messrs. Wilson, Gecker, Bass and Litton.
ABSENT: Mr. Gulley.
The Board of Supervisors, on Wednesday, April 26, 2006, beginning at 7:00 p.m., will take
under consideration this request.
12
06SN0178-APR26-BOS
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