7.01 Architectural Control Committee - Creation and Composition
(a) An Architectural Control Committee (the "ACC") shall be established consisting of not less than three (3) nor more than five (5) individuals; provided, however, that the ACC shall always have an uneven number of members. Notwithstanding anything to the contrary contained herein, Declarant shall have the right, but not the obligation, to appoint all members of the ACC until the plans for all of the Residences for all of the Lots in the Subdivision have been approved by the ACC. Thereafter, the Board shall appoint the members of the ACC. All costs of operating the ACC may, at the discretion of Declarant, be borne by the Association.
(b) Each initial member of the ACC shall be appointed for a term expiring on December 31, 2000. Thereafter each member of the ACC shall be appointed for a calendar—year term. If any vacancy shall occur in the membership of the ACC by reason of death, incapacity, resignation, removal, or otherwise, the remaining members of the ACC shall continue to act and such vacancy shall, subject to the provisions of 7.01 (a), be filled by the Declarant (or Board if at the time the Board has the right to appoint members of the ACC) at the earliest possible time. Any ACC member may resign at any time by giving written notice of such resignation to the Chairman of the ACC and such resignation shall take effect on receipt thereof by the Chairman. Any member of the ACC may be removed at any time with or without cause by the Declarant (or Board if at the time the Board has the right to appoint members of the ACC).
7.02 Purpose, Powers and Duties of the ACC. The purpose of the ACC is to assure that any installation, construction, or alteration of any Structure on any Lot shall be submitted to the ACC for approval (i) as to whether the proposed installation, construction, or alteration is in conformity and harmony of external design and general quality with the existing standards of the Subdivision and the Design Standards, and (ii) as to the location of Structures with respect to topography, finished ground elevation, and surrounding Structures. To the extent necessary to carry out such purpose, the ACC shall have all of the powers and duties to do each and every thing necessary, suitable, convenient, or proper for; Or in connection with; or incidental to the accomplishment of such purpose, including, without limitation to, the power and duty to approve or disapprove plans and specifications for any installation, construction, or alteration of any Structure on any Lot.
7.03 Officers, Subcommittees and Compensation. The members of the ACC shall appoint a Chairman from among their number and may appoint from among their number such other officers and subcommittees of members of the ACC as they shall from time to time detemiine necessary. The members of the ACC shall be reimbursed by the Association for traveling expenses and other reasonable out-of-pocket costs incurred in the performance of their duties as member of the ACC.
7.04 Operations of the ACC.
(a) Meetings. The ACC shall hold regular meetings at least once every three (3) months or more often as may be established by the ACC. Special meetings may be called by the Chairman and shall be called by the Chairman upon the written request of a majority of the members of the ACC then in office. Regular and special meetings of the ACC shall be held at such time and at such place as the ACC shall specify. Notice of each regular or special meeting of the ACC shall be mailed to each member thereof at his residence or at his usual place of business at least ten (l0) days before the day the meeting is to be held. Notice of regular and special meetings need not specify the purpose or purposes for which the meeting is called. Notice of a meeting need not be given to any member ofthe ACC who signs a waiver of notice either before or after the meeting. Attendance of a member of the ACC at a meeting shall constitute a waiver of notice of such meeting and shall constitute a waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when the member states, at the beginning of the meeting, any such objection or objections to the transaction of business. At each meeting of the ACC, the presence of a majority of the members then in office shall constitute a quorum for the transaction of business. Except as otherwise provided herein, the act of a majority of the members of the ACC present at any regular or special meeting thereof at which a quorum is present shall constitute the act of the ACC. In the absence of a quorum, any member of the ACC present at the time and place of the meeting may adjourn the meeting from time to time until a quorum shall be present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. The ACC shall maintain both a record of votes and minutes for each of its meetings The ACC shall make such records and minutes available at reasonable places and times for inspection by Members of the Association and by the Association's Secretary. Any action required to be taken at a meeting of the ACC, or any action that may be taken at a meeting of the ACC, may be taken without a meeting if written consent, setting forth the action so taken, shall be signed by all the members of the ACC and be tiled with the minutes of the proceedings of the ACC. Such consent shall have the same force and effect as a unanimous vote, and may be stated as such in any document filed by the ACC.
(i) The ACC shall adopt and promulgate the Design Standards described in Section 6.05 hereof and shall, as required, make findings, determinations, rulings, and orders with respect to the conformity with said Design Standards of plans and specifications submitted for approval to the ACC pursuant to the provisions of this Declaration The ACC shall, as required, issue permits, authorizations, or approvals, which may include specific requirements or conditions, pursuant to the provisions of this Declaration.
(ii) Any two (2) or more members of the ACC may be authorized by the ACC to exercise the full authority of the ACC with respect to all matters over which the ACC has authority as may be specified by resolution of the ACC, except with respect to the adoption or promulgation of the Design Standards. The unanimous action of the two (2) or more members with respeet to the matters specified shall be final and binding upon the ACC and upon any applicant for an approval, permit, or authorization, subject, however, to review and modification by the ACC on its own motion or appeal by the applicant to the ACC as provided in this paragraph (ii). Written notice of the decision of such two (2) or more members shall, within five (5) working days thereof be givern any applicant for an approval, permit, or authorization. The applicant may, within ten (10) days after receipt of notice of any decision that he deems unsatisfactory, file a written request to have the matter in question reviewed by the ACC. Upon the filing of any such request, the matter with respect to which such request was filed shall be submitted to, and reviewed promptly by, the ACC, but in no event later than thirty (30) days after the filing of such request. The decision of a majority of the members of the ACC with respect to such matter shall be final and binding.
7.05 Design Standards.
(a) The ACC shall from time to time adopt, promulgate, amend, revoke, and enforce guidelines (the "Design Standands") for the purposes of:
(i) governing the form and content of plans and specifications to be submitted to the ACC for approval pursuant to the provisions of this Declaration;
(ii) governing the procedure for such submission of plans and specifications;
(iii) establishing guidelines with respect to the approval and disapproval of design features, architectural styles, exterior colors and materials, details of construction, location, and size of Structures and all other matters that require approval by the ACC pursuant to the Declaration; and
(iv) assuring the conformity and harmony of external design and general quality of the Subdivision.
(b) The ACC shall make a published copy of its current Design Standards readily available to Members and prospective Members of the Association and to all applicants seeking the ACC’s approval.
7.06 Submission of Plans and Specifications. No Structure shall be commenced, erected placed, moved onto, or permitted to remain on any Lot, nor shall any existing Structure upon any Lot be altered in any way that materially changes the exterior appearance of the Structure or Lot, unless plans and specifications therefor shall have been submitted to and approved in writing by the ACC Such plans and specifications shall be in such form and shall contain such information as may be reasonably required by the ACC in the Design Standards, including, without being limited to;
(a) a site plan showing the location of all proposed and existing Structures on the Lot including building setbacks, open space, driveways, walkways, and parking spaces, including the number thereof; and all siltation and erosion control measures;
(b) a foundation plan;
(c) a floor plan;
(d) exterior elevations of all proposed Structures and alterations to existing Structures, as such Structures will appear after all back-filing and landscaping are completed;
(e) speciications of materials, color scheme, lighting scheme and other detail affecting the exterior appearance of all proposed Structures and alterations to existing Structures; and
(f) plans for landscaping and grading.
7.07 Approval of Plans and Specifications. Upon approval by the ACC of any plans and specifications submitted pursuant to this Declaration, two (2) copies of such plans and specifications, as approved, shall be deposited for permanent record with the ACC and a copy of such plans an specifications bearing such approval, in writing, shall be resumed to the applicant submitting the same Approval for use in connection with any Lot or Structure of any plans and specifications shall not be deemed a waiver ofthe ACC’s right, in its discretion, to disapprove similar plans and specifications or any of the features or elements included therein if such plans, specifications, features or elements are subsequently submitted for use in connection with any other Lot or Structure. Approval of any such plans and specifications relating to any Lot or Structure, however, shall be final as to that Lot or Structure and such approval may not be revoked or rescinded thereaiter, provided that there has been adherence to, and compliance with, such plans and specifications, as approved, and any conditions attached to any such approval.
7.08 Disapproval of Plans and Specifications. The ACC shall have the right to disapprove any plans or specifications submitted pursuant to this Declaration because of any of the following:
(a) the failure to include information in such plans or specifications as may have been reasonably requested;
(b) the failure of such plans or specifications to comply with this Declaration or the Design Standards; or
(c) any other matter which, in the judgment of the ACC, would be likely to cause the proposed installation, construction or alteration of a Structure (i) to fail to be in confomiity and harmony of external design and general quality with the standards for the Subdivision as set forth in the Design Standards or the Subdivision-Wide Standard, or (ii) as to location to be incompatible with topography, finished ground elevation, and surrounding Structures. In any case in which the ACC shall disapprove any plans and specifications submitted hereunder, or shall approve the same only as modified or upon specified conditions, such disapproval or qualified approval shall be accompanied by a statement of the grounds upon which such action was based. In any such case the ACC shall, if requested, make reasonable efforts to assist and advise the applicant in order that an acceptable proposal may be prepared and submitted for approval.
7.09 Obligation to Act. The ACC shall take action on any plans and specifications submitted as herein provided within thirty (30) days after receipt thereof Approval by the ACC, if granted, together with any conditions imposed by the ACC, shall be placed in writing on the plans and speciications and shall be resumed to the applicant. Failure by the ACC to take action within thirty (30) days of receipt of plans and specifications submitted for approval shall be deemed approval of such plans and specihcations.
7.10 Inspection Rights. Any employee or agent of the Association or the ACC may, after reasonable notice, at any reasonable time or times, enter upon any Lot and Structure thereon for the purpose of ascertaining whether the installation, construction, alteration or maintenance of any Structure or the use of any Lot or Structure is in compliance with the provisions of this Declaration; and neither the Association, nor the ACC, nor any such agent shall be deemed to have committed a trespass or other wrongful act solely by reason of such entry or inspection, provided such inspection is carried out in accordance with the terms of this Section.
7.11 Violations. If any Structure shall be erected, placed, maintained, or altered upon any Lot, otherwise than in accordance with the plans and specifications approved by the ACC pursuant to the provisions of this Article, such erection, placement, maintenance, or alteration shall be deemed to have been undertaken in violation of this Article and without the approval required herein. If in the opinion of the ACC such violation shall have occurred, the ACC shall notify the Association and the Board shall take appropriate measures to correct the violation; the Board shall provide written notice to the Owner by certiied mail, setting forth in reasonable detail the nature of the violation and the specific action or actions required to remedy the violation. If the Owner shall not have taken reasonable steps toward the required remedial action within thirty (30) days after the mailing of the aforesaid notice of violation, then the Association shall have the Right of Abatement as provided in Section 10.02 hereof
7.l2 Certification of Compyliance.
(a) Upon completion of the installation, construction, or alteration of any Structure in accordance with plans and specifications approved by the ACC, the ACC shall, upon written request of the Owner thereof or upon the ACC’s own initiative, issue a Certificate of Compliance, identifying such Structure and the Lot upon which such Structure is placed, and stating that the plans and specifications have been approved and that such Structure complies with such plans and specifications. A copy of said Certificate shall be filed for permanent record with the plans and specifications on file with the ACC.
(b) Any Certificate of Compliance issued in accordance with the provisions of this Section shall be prima facie evidence of the facts therein stated; and as to any purchaser or encumbrancer in good faith and for value, or as to any title insurer, such certificate shall be conclusive evidence that all Structures on the Lot comply with all the requirements of this Article. However, the Certificate shall in no way be construed to certify the acceptability, sufficiency, or approval by the ACC of the actual construction of Structures or of the workmanship; or to represent or warrant to anyone the quality, function, or operation of the Structures or of any construction, workmanship engineering, materials, or equipment.
The issuance of the Certificate shall in no way be construed to certify to anyparty that the Structures have been built in accordance with any applicable rule or regulation.
7.13 Fees. The ACC may impose and collect a reasonable and appropriate fee to cover the cost of review of plans and of inspections performed pursuant to Section 7.10. The fee shall be established from time to time by the ACC and published in the Design Standards.
7.14 Nondiscrimination by ACC. The ACC shall not discriminate against any applicant requesting its approval of plans and specifications because of such applicant’s race, color, sex religion, age, or national origin. Further, the ACC in the exercise of its powers granted pursuant to this Declaration shall not take any action the intent or effect of which is to discriminate against persons of a particular race, color, sex, religion, age, or national origin.
7.15 Disclaimer as to ACC Approval. Plans and specifications are not reviewed for a systems, mechanical, plumbing, electrical, engineering, or structural design, or quality of material: and by approving such plans and specifications neither the ACC, the members thereof, nor the Association assumes any liability or responsibility therefor, nor for any defect in any Structure constructed from such plans and specifications. Neither Declarant, the Association, the ACC, the Board, nor the officers, directors, members, employees, and agents of any of them shall be liable in damages to anyone submitting plans and specifications to any of them for approval, or to any Owner affected by these Restrictions, by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every person who submits plans or specifications and every Owner agree that he will not bring any action or suit against Declarant, the Association, the ACC, the Board, or the officers, directors, members, employees, and agents of any of them to recover any such damages and hereby releases, quitclaims, and covenants not to sue for any claims, demands, and causes of action arising out of or in cormection with any judgment, negligence, or nonfeasance, and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands, and causes of action not known at the time the release is given.
7.16 Modifications Committee.
(a) The ACC shall establish a modifications committee (the "Modifications Committee") to exercise exclusive jurisdiction over the modiiications, additions, or alterations made on, or to, existing Structures as provided in Section 7.06 hereof and shall have such other responsibilities as may be delegated to it by the ACC.
(b) The Modifications Committee will set standards, review, and act upon all proposed modifications or improvements to those Lots where Residences have been constructed and sold and are owned by someone other than the Declarant, its successors or assigns, or a builder. This Committee will be comprised of no less than three (3) members with at least two (2) members required to be Members of the Association. The Modifications Committee will be governed by the Board and shall generally adhere to all the provisions set forth in this Declaration for the ACC pertaining to approval of plans and specifications.
(c) The Modifications Committee shall promulgate detailed standards and procedures governing its area of responsibility and practice. In addition thereto, the following shall apply: plans and specifications showing the nature, kind, shape, color, size, materials, and location of such modifications, additions, or alterations, shall be submitted to the Modifications Committee for approval as to quality of workmanship and design and harmony of external design with existing Structures and as to location in relation to surrounding Structures, topography, and finish grade elevation. Nothing contained herein shall be construed to limit the right of the Owner to remodel the interior of a Structure or to paint the interior of a Structure any color desired.