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DECLARATION OF PROTECTIVE COVENANTS
FOR
NOBLE CREEK FARMS SECTION 8
THIS DECLARATION is made as of _________________
(date), by Michael and Cathy Howard, "Declarant", under
the following circumstances:
A. Declarant is the owner of the real property
known as Noble Creek Farms Phase 5 and more fully described
in Exhibit A attached to this Declaration (the "Property").
B. Declarant desires to submit the Property
to the covenants, conditions, restrictions and easements set
forth in this Declaration.
C. Declarant may in the future submit all
or part of the real property described in Exhibit B (the "Additional
Property") to the provisions of this Declaration.
NOW, THEREFORE, Declarant declares that all
of the Property shall be held, developed, encumbered, leased,
occupied, improved, built upon, used and conveyed subject to
this Declaration.
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SECTION 1. DEFINITIONS.
For purposes of this Declaration, unless
the context otherwise requires, the words listed in this Section
shall have the following meanings:
1.1 Additional Property: The real property
described in Exhibit B together with all easements benefiting
the real property and all appurtenances.
1.2 Architectural Review Committee: The individuals
designated pursuant to Section 4. 1 who shall review and approve
all development, construction, landscaping and site plans involving
Improvements for the Property in accordance with the terms of
this Declaration.
1.3 Declarant: Michael and Cathy Howard,
their successors and assigns and the parties described below
in Section 14.2.
1.4 Declaration: This Declaration of Protective
Covenants for Noble Creek Farms Phase 5 as amended from time
to time.
1.5 Improvements: All buildings, outbuildings
and garages; overhead, above ground and underground installations,
including, but not limited to, utility facilities and systems,
lines, pipes, wires, towers, cables, conduits, poles, antennae
and satellite dishes; flagpoles; swimming pools and tennis courts;
slope alterations; roads, driveways, uncovered parking areas
and other paved areas; fences, trellises, walls, retaining walls,
exterior stairs, decks, patios and porches; planted trees, hedges,
shrubs and other forms of landscaping that are more than 6 feet
high when fully grown; and all other structures of every type.
No existing trees with a diameter of greater than two inches
shall be cut without approval of the Architectural Review Committee.
1.6 Lot: Each separately-described lot shown
on the final plat for Noble Creek Farms Phase 5.
1.7 Owner: Any party holding fee simple title
of record to any Lot, including any party selling that interest
by land contract, but excluding any party holding an interest
merely as security for the performance of an obligation.
1.8 Property: All of the real property described in Exhibit A known as Noble Creek Farms Section 8 together with all easements benefiting the real property and all appurtenances. Upon the submission of portions of the Additional Property to the provisions of this Declaration, in accordance with Section 10, those portions of the Additional Property shall then be deemed part of the "Property."
1.9 Protective Covenants: The covenants,
conditions, restrictions and reservations stated in this Declaration
as amended from time to time.
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SECTION 2. PURPOSES
The Protective Covenants are declared to
be in furtherance of the following purposes:
(a) The compliance with all zoning and similar
governmental regulations.
(b) The promotion of health, safety and welfare
of all Owners and residents of the Property.
(c) The preservation, beautification and
maintenance of the Property and all Improvements.
(d) The preservation and promotion of environmental
quality.
(e) The establishment of requirements for
the development of the Property relating to land use, architectural
features and site planning.
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SECTION 3. PERMITTED IMPROVEMENTS
3.1 All Lots shall be used exclusively for
single-family, private dwelling house purposes. No residence
that is more than two stories in height at the frontelevation
shall be erected, placed, or permitted to remain upon any Lot.
No more than one residence shall be erected, placed, or permitted
to remain upon any Lot.
3.2 The only structures other than a single-family private dwelling house thatshall be erected, placed or permitted to remain upon any Lot shall be one private garage, and other Improvements that the Architectural Review Committee has approved as being consistent with the general aesthetic features of Noble Creek Farms Section 8, and temporary structures erected by the Declarant, its successors and/or assigns in connection with the development and/or marketing of the Property. Each home erected, placed or permitted to remain upon lots 69 to 85 shall contain a finished living area of not less than 2000 square feet for a one-story dwelling and not less than 2400 feet for any dwelling exceeding one story in height at the front elevation and upon lots 86 to 102 not less than 2400 square feet for a one story dwelling and not less than 3000 feet for any dwelling exceeding one story in height at he front elevation..
3.3 No structure or other above ground Improvement
other than driveways,walkways and sidewalks shall be erected,
placed, or permitted to remain on any Lot nearer to the street
line or to the boundary lines of such Lot than the minimum building
setback lines shown on the recorded plat for the Property.
3.4 Exterior Coverage. For a one (1) story
home no more than 25% high quality aluminum or vinyl siding shall
be permitted. At least 75% of the siding shall be wood and/or
brick/stone. For a two (2) story home no more than 50% high quality
aluminum or vinyl siding shall be permitted. The first floor
shall be all brick from the top of the foundation to at least
eight (8) feet above that point. No artificial wood or stone,
nor T-111 shall be permitted. Any aluminum or vinyl siding used
on the sides of the residence shall be evenly distributed on
the sides with none located any lower than the interior ceiling
of ground floor.
3.5 Bathrooms. Each residence shall have
a minimum of two full baths.
3.6 Garage. Each residence shall have a minimum
of a two car attached garage.
3.7 The roof of every residence, including
the roof of the garage, shall be a minimum of 6/12 or greater
pitch.
3.8 Each residence shall have an electric
light fixture on a pole or post in the front yard. The post or
pole shall be set back 75 feet from the street. Each fixture
shall have a photoelectric cell to operate for the outside environment. The
design and location shall be subject to the approval of the committee.
3.9 All mailboxes shall match and be purchased
from the developer for $250.00 and installed prior to occupancy.
3.10 No above the ground swimming pools shall
be permitted on any lot. This restriction shall apply to pools
designed for use and installation above the ground even if installed
completely or partially in the ground.
3.11 Each lot shall be serviced by a hard
surfaced drive, of either concrete or asphalt construction and
shall be completed prior to occupancy.
3.12 Each lot owner shall invest a minimum
of $2,000.00 or its equivalent in landscape and the like for
the benefit of the exterior appearance of the lot and the development.
All work to be completed within six months of occupancy.
3.13 All driveway culvert pipes to be galvanized
CMP (Corrugated Metal Pipe)
3.14 The lot owner shall have all sump pump
and foundation drains either connected to the leach field curtain
drain or discharge into the road ditch line. If a connection
is to be made to the leach field curtain drain, the curtain drains
are to be sized to accommodate the increased amount of water.
Curtain drains shall discharge into a drainage swale that runs
along the side lot lines and flows into the road ditch. Each
lot owner is responsible for the construction, if not already
existing, of the drainage swales along both sides of the lot
prior to occupation.
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SECTION 4. ARCHITECTURAL CONTROL
4.1 The Architectural Review Comitee formed for Noble Creek Farms, Section 8, shall have the architectural control over Lots 69 to 102, as described in this Section 4.
4.2 So long as Declarant owns one or more
Lots, Declarant shall have the right to appoint all members of
the Architectural Review Committee. After Declarant no longer
owns any Lots, the Owners shall have the right to select members
of the Committee by a simple majority vote of all Owners.
4.3 Before any Owner may start or permit
the construction or installation of any Improvement on a Lot,
the Owner shall first submit to the Architectural Review Committee
for approval two complete sets of building or installation plans
for the proposed Improvement, one of which will be retained by
the Committee, including plans for grading, surface drainage
and drainage swales; screening and/or fencing; complete building
design and specification details with elevations and floor plans;
landscaping plans; driveway curb cat widths and locations; any
underground utility or other installations; and any overhead
wiring, cables or other above-ground installations including
locations and dimensions of satellite dishes and/or poles. The
Architectural Review Committee shall approve, reject or modify
the plans in a writing sent to the Owner in question not more
than 35 days after the plans are submitted to the Committee.
The Committee shall not unreasonably withhold approval of any
plans that conform in every way with this Declaration and with
the general character of the development on neighboring Lots
within the Property. If the Committee fails to approve, disapprove
or modify the plans within the above 35-day period, the Committee's
approval shall be deemed to have been given, and no further permission
shall be needed before the Improvements described in those plans
may be constructed or installed. However, in no event shall any
Improvements be constructed or installed that violate any terms
of this Declaration even if the Committee has expressly approved
the construction or installation in writing unless the Committee
has granted a variance in writing for the Improvements pursuant
to Section 6.
4.4 No Improvement shall be erected or permitted
to remain on any Lot which does not have a quality of workmanship
equal to or exceeding the workmanship of the existing similar
type of Improvements located elsewhere within the Property.
4.5 All Improvements on any Lot shall be
started within one year after the date they are approved under
this Section 4 and shall be completed within reasonable time
after the beginning of construction or installation.
4.6 No building shall be constructed on any
Lot unless its external design and color are in harmony with
the other buildings of similar use located within the Property.
4.7 During construction or installation of
any Improvement of a Lot, the Owner of that Lot shall cause the
Lot to be kept free of unsightly accumulations of rubbish and
scrap materials and shall cause all construction materials and
any temporary structure to be maintained in a neat and orderly
manner. All of those materials shall be removed from the Lot
promptly after completion of the construction or installation.
4.8 Neither Declarant, the Architectural
Review Committee nor any member of the Committee, nor any agent
of Declarant or the Committee, shall be liable to any applicant
under this Section 4, to any applicant for a variance under either
Section 4 or 5, or to any third party, for any damage, loss of
expense suffered or claimed by the applicant or any third party
on account of (a) any defect in plans or specifications submitted,
revised, approved or rejected in accordance with the Protective
Covenants or for any structural or other defects in any work
done according to those plans and specifications; (b) the granting,
modification or denial of any application or variance request
in accordance with the Protective Covenants; or (c) the development
of any part of the Property.
4.9 The Architectural Review Committee shall
have the right to adopt and amend architectural and design standards
to explain, amplify, define and interpret the provisions and
purposes of this Declaration.
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SECTION 5. PERMITTED USES
5.1 No noxious or offensive activity shall be carried on upon
any lot.
5.2 Nothing shall be done or placed or permitted to remain
on any Lot which is unlawful or hazardous or which may endanger
the health or unreasonably disturb the quiet occupancy of any
persons residing on any other Lot.
5.3 All trash, garbage or other rubbish shall be deposited
only in covered, sanitary containers screened from view.
5.4 No animals, livestock or poultry of any kind shall be
raised, bred, or maintained on any Lot except dogs, cats or other
small household pets, provided that the permitted animals shall
not be raised, bred, or maintained for any commercial purpose.
5.5 No inoperative vehicle or vehicle without a valid license
may remain stored outdoors on any part of the Property for more
than five days. No trailer, recreational vehicle, camper or other
similar vehicle shall be used on any part of the Property as
either a temporary or a permanent residence.
5.6 No sign of any kind other than signs displayed by Declarant
in connection with the development and/or sale of any part of
the Property shall be erected or permitted to remain in public
view on any Lot except residential sales or rental signs advertising
the Lot upon which they are located and not exceeding six square
feet in size. No more than one of these permitted signs may be
erected or permitted to remain on any Lot.
5.7 Any unused land area on any part of the Property shall
be maintained and kept free of weeds and other unsightly plants,
brush, rubbish and/or debris.
5.8 Any exterior lighting on any Lot shall be shielded so
as not to be offensive to any other Lot.
5.9 No Owner other than Declarant shall take any action to
reduce the size of or subdivide any Lot.
5.10 Parking within the public right-of-way shall not be permitted
except during construction.
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SECTION 6. VARIANCES
6.1 To avoid unnecessary hardship and/or to overcome practical
difficulties in the application of the provisions of the Declaration,
the Architectural Review Committee shall have the authority to
grant reasonable variances from the provisions of Section 4,
and, so long as Declarant owns one or more Lots on the Property,
Declarant may grant reasonable variances from the provisions
of Section 5 of this Declaration. No variance shall materially
injure or materially adversely affect any other part of the Property
or any other Owner or occupant.
6.2 No variance granted pursuant to the authority of this
Section 6 shall constitute a waiver of any provision of the Declaration
as applied to any other party or any other part of the Property,
and no variance may be granted to permit anything that is prohibited
by applicable law.
6.3 All provisions of the Declaration not affected by the
grant of a variance shall continue to apply with full force and
effect to the Lot for which the variance is granted and to the
balance of the Property.
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SECTION 7. MAINTENANCE
All Lots and all Improvements placed on the Lot, whether occupied
or unoccupied, shall at all times be maintained in good condition
and repair.
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SECTION 8. EASEMENTS RESERVED ACROSS LOTS
8.1 Declarant reserves for the benefit of Declarant, all Owners
and occupants of Lots and all suppliers of public utilities the
easements shown on the recorded plat for Noble Creek Farms Phase
5 for the installation, use, maintenance, repair and replacement
of utilities and drainage systems and facilities. No Improvement
may be placed on any part of the Property that will materially
impede the free and normal use of those easements.
8.2 Declarant reserves the right and easement for itself,
its successors and assigns, to enter upon the easement areas
shown on the plat(s) of Property in order to install, maintain,
repair, use and/or replace pipes, wires, antennae, cables, towers,
conduits and other lines, systems and/or facilities for the purpose
of providing water, sanitary sewer, storm sewer, electrical,
gas, telephone, television and other utility or quasi-utility
services to any part of the Property.
8.3 The easements and rights granted and/or reserved in this
Declaration are easements appurtenant, running with the land
which comprises a part of the Property, perpetually in full force
and effect.
8.4 Grading of the lot shall be the responsibility of the
lot owner. Drainage swales along the side lot lines shall be
constructed within existing drainage easements, as necessary.
The easement area of each lot and all improvements within it
shall be maintained continuously by the lot owner. Within the
easements, no structure, planting, fencing, culvert, or other
material shall be placed or permitted to remain which may obstruct,
retard, or divert the flow through the water course.
8.5 The owners of lots 51 and 52 shall provide landscape mounds
along the rear lot line of their respective lot(s) to provide
a buffer from other properties.
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SECTION 9. ENFORCEMENT AND REMEDIES FOR BREACH OF PROTECTIVE
COVENANTS
9.1 Declarant, the Architectural Review Committee and/or any
Owner shall have the right to enforce the Protective Covenants
at law or equity by prosecuting any proceeding against the parry
or parties violating or attempting to violate any one or more
of the Protective Covenants. This right of enforcement shall
include the right to recover damages and/or to seek injunctive
relief to prevent the violation of any one or more of the Protective
Covenants.
9.2 Any action or omission which violates any provision of
this Declaration is declared to be a nuisance. Every remedy allowed
by law or equity against an Owner shall be applicable in case
of any such violation and may be exercised by Declarant, the
Architectural Review Committee and/or any other Owner.
9.3 In addition to the rights stated in Sections 9.1 and 9.2
above, the Declarant, so long as it owns one or more Lots, and/or
the Architectural Review Committee, shall have the right to enter
upon any part of the Property at any reasonable time to inspect
for a possible violation of the Protective Covenants. Where the
inspection shows that a violation of the Protective Covenants
exists, Declarant and/or the Committee shall then have the right
to abate and remove any structure, thing or condition causing
the violation at the expense of the Owner of the Lot where the
violation exists, without any liability to the Owner for trespass
or any other claim resulting from the entry.
9.4 The remedies specified in this Section 9 are cumulative
and do not preclude resort to any other remedy at law or in equity
by any party adversely affected by any violation of the Protective
Covenants.
9.5 No delay or failure on the part of any aggrieved party
to pursue any available remedy with respect to a violation of
any provision of this Declaration shall be held to be a waiver
by that party of, or an estoppel of that party to assert, any
right available to the party upon the recurrence or continuation
of the violation or the occurrence of any different violation.
No provision of this shall be construed so as to place upon the
Declarant or any other aggrieved party any duty to take any action
to enforce this Declaration.
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SECTION 10. ADDITIONS TO THE PROPERTY BY DECLARANT
So long as Declarant owns one or more Lots, Declarant may
add all or any part of the Additional Property to the Property
by recording an amendment to this Declaration containing a description
of the real property so added, without the necessity of joining
any other Owners as parties to the amendment. Upon the recording
of any amendment, all of the provisions of the Declaration shall
apply to that portion of the Additional Property in the same
manner as if that property had been originally covered by this
Declaration. This provision shall not be construed to prohibit
Declarant from adopting additional or different restrictive covenants
that apply only to the Additional Property (or the portion of
the Additional Property added to this Declaration) or otherwise
modifying the Protective Covenants with respect to the Additional
Property (or applicable portion of the same).
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SECTION 11 - AMENDMENTS TO DECLARATION
11.1 The Declaration or any provision contained herein may
be amended for any purpose other than the purpose described above
in Section 10 only by recording the desired amendments executed
by not less than 75 % of all of the Owners and, if Declarant
still owns one or more Lots, executed also by Declarant.
11.2 No amendment of this, Declaration shall (a) require any
change in any pre-existing structure or other Improvement which
is in compliance with the provisions of Sections 3 and 4 immediately
prior to the effective date of the amendment; or (b) require
any change in a use complying with the provisions of Section
5 as of the date immediately preceding the effective date of
the amendment, without the written consent of each party so affected
or required to make any such change.
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SECTION 12. DURATION; TERMINATION
12. 1 All of the Protective Covenants shall run with the land which is a part of the Property and shall be binding upon and inure to the benefit of Declarant, all Owners, lessees, occupants and their respective successors in interest until 2024, unless amended or terminated prior to that date pursuant to Section 12.2 or 14. The Protective Covenants shall be automatically extended for another 10 years unless, before expiration of the initial term or a subsequent 10 year extension, this Declaration is terminated by the recording of a written instrument executed by not less than 75% of all Owners consenting to such termination.
12.2 This Declaration may be terminated at any time with respect
to all of the Property by recording a written instrument providing
for such termination executed by not less than 80% of the Owners
and, if Declarant then owns one or more Lots, by Declarant.
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SECTION 13. SEVERABILITY
If any provision of this Declaration is held to be invalid
by any court of competent jurisdiction, the invalidity of that
provisions shall not affect the validity of any of the other
provision of this Declaration. All of the other provisions shall
continue unimpaired in full force and effect.
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SECTION 14. ASSIGNMENT OF DECLARANT'S RIGHTS AND DUTIES
14.1 Declarant may assign any and/or all of its rights, powers
and reservations under this Declaration to any other party who
will assume the duties of Declarant pertaining to the rights,
powers and/or reservations assigned. Such assignment of rights,
powers and/or reservations and the assumption of related duties
by the assignee shall be set forth in writing, such written instrument
shall be recorded.
14.2 The term "Declarant" as used in this Declaration
shall include any such assignee and the assignee's successors
and assigns with respect to the rights powers and/or reservations
actually assigned and the duties and obligations assumed.
14.3 If at any time the Declarant ceases to exist without
having made an assignment pursuant to this Section 14, a successor
Declarant may less than 75 % of the other Owners.
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SECTION 15. SPECIAL CONDITIONS
A. In cases of special size or shape of site, or condition
of terrain or general use, operation or treatment not provided
for within the general conditions to which these standards apply,
the Architectural Review Committee shall consider the unusual
circumstances and take the same into account at its recommendation.
B. Right of Repurchase. If any Owner fails to commence construction
of a building upon a Building Site purchased by such Owner within
a two (2) year period commencing with the date of a conveyance
from Declarant to an Owner, other than Declarant, Declarant shall
have the right to repurchase the Building Site at any time within
one hundred and eighty (180) days after the expiration of said
two (2) year period upon giving fifteen (15) days prior written
notice of its intention to repurchase to said Owner. The repurchase
price shall be the price paid by Owner for the Building Site
when purchased from Declarant plus reimbursement for any real
property taxes paid by Owner relating to the Building Site, less
the unpaid balance of any mortgage or other amounts, nonpayment
of which may be assessed as liens against the Building Site.
If Declarant fails to give written notice exercising its right
of repurchase within one hundred and eighty (180) day period
aforesaid, said right or repurchase shall be deemed waived. "Commencement
of construction of a building" as defined herein, shall
mean that the Owner of the Building Site has (1) obtained approval
of the Development Advisory Board, (2) obtained building permits
from the appropriate governmental authorities authorizing construction
of a building and improvement as approved by the Development
Advisory Board; (3) entered into a construction contract with
a contractor licensed to do business in Ohio for construction
of a building; and (4) expended at least the sum of Ten Thousand
Dollars ($10,000) pursuant to such construction contract for
on-site construction work.
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SECTION 16
Lots 60 and 61 shall have a 30 foot Temporary Construction
Easement running parallel to the future Angela's Cove extension.
Said Easement shall be used for the construction of Angela's
Cove and the installation of all underground and/or overhead
utilities. The 30 foot Temporary Construction Easement shall
be vacated and the permanent 15 foot utility easement shall remain
as stated in the "Owner's Consent and Dedication" section.
Following construction of Angela's Cove the developer shall be
responsible for restoring the disturbed areas and reseeding or
resodding. The owner of the lot shall be responsible for the
replacement of any trees, shrubs, flowers, fences or other landscape
elements disturbed or removed during construction.
SIGNED as of the date first written above.
Signed and Acknowledged
in the Presence of:
____________________________ ____________________________
By:
____________________________ ____________________________
These Protective Covenants Prepared By:
Richard E. West, Attorney at Law
195 E. Central Avenue, P. O. Box 97
Springboro, OH 45066
(513) 748-1749
Restrictions of the Warren County Combined Health District
1. Lots 60 to 64 shall be filled to create a pad for the soil
adsorption absorption field. Lots 61, 63 and 64 need 2-1/2' of
fill soil and lots 60 and 62 will need 3-1/2' of fill soil. These
pads shall be 100 x 150 feet for a 3 bedroom home and 100 x 200
feet for a 4 bedroom home. Filled areas may not be used for leach
field until approved by the Warren County Combined Health District.
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