Article IX
9.1 No structure shall be placed, erected, or installed upon any Unit, and no improvements (including staking, clearing, excavation, grading and other site work, exterior alteration of existing improvements, and planting or removal of landscaping materials) shall take place except in compliance with this Article, and approval of the Architectural Review Committee under Section 9.2.
Any Owner may remodel, paint or redecorate the interior of structures on his Unit without approval. However, modifications to the interior of screened porches, patios, and similar portions of a Unit visible from outside the structures on the Unit shall be subject to approval. No approval shall be required to repaint the exterior of a structure in accordance with the originally approval color scheme or to rebuild in accordance with originally approved plans and specifications.
All dwellings constructed on any portion of the Properties shall be designed by and built in accordance with the plans and specifications of a licensed architect or licensed building designer. All plans and specifications shall be subject to review as provided herein.
This Article shall not apply to the activities of the Declarant, nor to improvements to the Common Area by or on behalf of the Association.
This article may not be amended without the Declarant’s written counsel so long as the Declarant owns any land subject to this Declaration or subject to annexation to this Declarant.
9.2 Architectural Review. Responsibility for administration of the Design Guidelines as defined below, and review of all applications for construction and modification under this Article shall be handled by the Architectural Review Committee (“ARC”). The ARC may be established such that it is divided into two (2) subcommittees, with one (1) subcommittee having jurisdiction over modifications and the other over new construction.
The Board may employ architects, engineers, or other Persons, as it deems necessary to enable the ARC to perform its review. The ARC may, from time, delegate any of its rights or responsibilities hereunder to one (1) or more duly licensed architects or other qualified Persons, which shall have full authority to act on behalf of the committee for all matters delegated. Until all Units have a certificate of occupancy or are actually occupied, whichever is earlier, the Declarant shall have the right to appoint all members of the ARC. Upon the expiration or earlier surrender in writing of such right, the Board shall appoint the members of the ARC. The ARC may establish and charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review of any applications. Such fees may include the reasonable costs incurred by all the committees in having any application reviewed by architects, engineers or other professionals.
9.3 Guidelines and Procedures.
(a) Design Guidelines. The Declarant may prepare initial design and development guidelines and application and review procedures (the “Design Guidelines”) for the properties. The Design Guidelines may contain general provisions applicable to all of the Properties, as well as landscape plans and other specific provisions, which vary from one portion of the Properties to another depending upon the location and unique characteristics. The Design Guidelines are intended to provide guidance to Owners and Builders regarding matters of particular concern to the committees in considering applications hereunder. The Design Guidelines are not the exclusive basis for decisions of the ARC and compliance with the Design Guidelines does not guarantee approval of any application.
The ARC shall adopt such Design Guidelines at its initial organizational meeting and thereafter shall have sole and full authority to amend them. Any amendments to the Design Guidelines shall be prospective only and shall not apply to require modifications to or removal of structures previously approved once the approved construction or modification has commenced. There shall be no limitation on the scope of amendments to the Design Guidelines: the ARC is expressly authorized to amen the Design Guidelines to remove requirements previously imposed or otherwise to make the Design Guidelines less restrictive.
The ARC shall make the Design Guidelines available to Owners and Builders who seek to engage in development or construction within the Properties and all such Persons shall conduct their activities in accordance with such Design Guidelines.
(b) Procedures. Plans and specifications showing the nature, kind, shape, color, size materials, and locations of all proposed structures and improvements shall be submitted to the ARC for review and approval (or disapproval). In addition, information concerning irrigation systems, drainage, lighting, landscaping and other features of proposed construction shall be submitted as applicable. In reviewing each submission, the committees may consider the quality of workmanship and design, harmony of external design with existing structures, and location in relation to surrounding structures, topography, and finish grade elevation, among other things. Decisions of the ARC may be based solely on aesthetic considerations. Each Owner acknowledges that opinions on aesthetic matters are subjective and may vary as committee members change over time.
In the event that the ARC fails to approve or to disapprove in writing any application within 30 days after submission of all information and materials reasonably requested, the application shall be deemed approved. However, no approval, whether expressly granted or deemed granted pursuant to the foregoing, shall be inconsistent with the Design Guidelines unless a variance has been granted in writing by the ARC pursuant to Section 9.5.
All work shall be completed within one year of commencement or such shorter period as the ARC may specific in the notice of approval, unless completion within such time is delayed due to causes beyond the reasonable control of the Owner, ad determined in the sole discretion of the ARC.
9.4 No Waiver of Future Approvals. Approvals of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval.
9.5
Variance. The ARC may authorize variances from compliance with any of its guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic or environmentalconsiderations require, but only in accordance with duly adopted rules and regulations. Such variances may only be granted, however, when unique circumstances dictate and no variance shall (a) be effective unless in writing; (b) be contrary to this Declaration; or (c) estop the ARC from denying a variance in other circumstances. For purposes of this Section, the inability to obtain approval of any governmental agency, the issuance of any permit, or the terms of any financing shall not be considered a hardship warranting a variance.
9.6
Limitations of Liability. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only and the ARC shall not bear any responsibility for ensuring the structural integrity or soundness of approved construction or modifications, nor for ensuring compliance with the building codes and other governmental requirements. Neither the Declarant, the Association, the Board, the ARC, or member of any of the foregoing shall be held liable for any injury, damages, or loss arising out of the manner or quality of approved construction on or modifications to any Unit. In all matters, the ARC and its members shall be defended and indemnified by the Association as provided in Section 4.6.
9.7
Enforcement. Any structure, improvement or landscaping placed in violation of this article shall be deemed to be nonconforming. Upon written request from the Board or Delarant. Owners shall, at their own cost and expense, remove such structure or improvement and restore the property to substantially the same condition as existed prior to the non conforming work. Should an Owner fail to remove and restore as required, the Board or its designees shall have the right to enter the property, remove the violation, and restore the property to substantially the dame condition as previously existed. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefited Unit and collected as a Specific Assessment. Unless otherwise specified in writing by the committee granting approval, all approvals granted hereunder shall be deemed conditioned upon completion of all elements of the approved work and all work previously approved with respect to the same Unit, unless approval to modify any application has been obtained. In the event that any Person fails to commence and diligently pursue to completion all approved work, the Association shall be authorized, after notice to the Owner of the Unit and an opportunity to be heard in accordance with Bylaws Section 3.24. to enter upon the Unit and remove or complete any incomplete work and to assess all costs incurred against the Unit and the Owner thereof as a Specific Assessment.
Any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to comply with the terms and provisions of this Article and the Design Guidelines may be excluded by the Board from the Properties, subject to the notice and hearing procedures contained in the ByLaws. In such event, neither the Association, its officers, nor directors shall be held liable to any Persons for exercising the rights granted by this paragraph.
In addition to the forgoing, the Association and the Declarant shall have the authority and standing to pursue all legal and equitable remedies available to enforce the provisions of this Article and the decisions of the ARC.