DECLARATION OF RESTRICTIONS
FOR UNSER CLIFFS SUBDIVISION
WHEREAS, First American Title Insurance Company, Trustee under Trust Agreement dated , 2004, (“FATCO”) is the owner of the following described real property located in the County of Bernalillo, State of New Mexico, to wit:
Lots 1-23 Block 1, Lots 1-16 Block 2, Lots 1-4 Block 3, Lots 1-7 Block 4, and Lots 1-11 Block 5, Unser Cliffs Subdivision within Sections 22 and 27, T11N, R2E, N.M.P.M., Albuquerque, New Mexico, as the same is shown and designated on the Plat thereof filed in the Office of the County Clerk of Bernalillo County, New Mexico on , 2004 in Book , Pg. , as Doc. No. , (“Lots”); and
WHEREAS, FATCO desires to provide for a general plan for the improvement and development of the Lots by subjecting the same to covenants, conditions and restrictions as hereinafter set forth, each and all of which is and are for the benefit of the Lots and each owner or the Lots or any part thereof, and each successor in interest to FATCO and any such owner.
NOW THEREFORE, FATCO declares that the Lots are and shall be held, transferred, sold, conveyed, occupied, and used subject to the following covenants, conditions, reservations, easements and restrictions, all of which are for the benefit of the Lots and shall run with the land and shall be binding upon and inure to the benefit of FATCO, each owner of a Lot or any part thereof, and each successor in interest to FATCO and any such owner.
The following words when used in the Declaration shall have the following meanings:
(a) “Association” means Volcano Cliffs Property Owners Association, a New Mexico non-profit corporation, or its successor.
(b) “Committee” means the architectural control committee appointed by the Association consisting of not less than three (3) members, or its successor.
(c) “Improvements” shall include, without limitation, buildings, out buildings (including sheds and storage buildings), roads, driveways, parking areas, fences, retaining walls, stairs, decks, wind breaks, poles, antennas, signs, utilities or communication installations whether above or underground, landscaping and any structure and excavation of any type or kind.
(d) “Owner” means the person(s) or entity(ies) including FATCO, holding legal title or beneficial ownership of the fee for a Lot including the purchaser of a Lot under an installment sales contract, or a lessee of a Lot pursuant to a leasehold agreement with a term of twenty (20)
years or greater.
(e) “Residence” means any building or portion of a building situated on a Lot and intended for use or occupancy as a single family residence.
All Lots are hereby restricted to use for single family permanent Residences. Each Residence shall be occupied by mo more than one (1) family and no Residence shall be used as a boarding house or otherwise divided into apartments or rooms for rental purposes. This restriction shall not prevent the rental or lease of the entire residence by the Owner thereof, but any such rental or lease must be by a written agreement which requires the tenant to observe this Declaration and makes a breach of such rental agreement or lease. No Residence may be leased or rented for a period of less than ninety (90) days.
All Improvements constructed on the Lots shall comply with the Northwest Mesa Escarpment Plan, Westside Strategic Plan and City of Albuquerque Zoning Ordinances (collectively “City Guidelines”) and this Declaration, as the same may be amended from time to time.
IV.
Construction of Improvements
All Improvements constructed upon a Lot shall be new construction, shall conform to City Guidelines, grading and drainage plans approved by the City of Albuquerque and to the rules adopted by the Committee and shall be completed within twelve (12) months after ground is broken for said Improvements. No existing building or structure may be moved from another site to a Lot. No Residence shall have a heated ground floor area of less than 2,000 square feet. Each Residence shall be detached and shall have an enclosed garage for a minimum of two (2) cars.
V.
Set Backs; Height of Improvements
All Residences shall be set back twenty-five (25) feet from the front Lot lines and fifteen (15) feet for the side and rear Lot lines. Reasonable variances may be granted by the Committee based upon a specific Lot’s shape, terrain, or configuration of easements. The maximum height of a Residence or other building on a Lot shall not exceed fifteen (15) feet above finished grade. The height of a pitched roof is measured at a point midway between the wall top plate and the ridge.
Exterior building colors are to comply with the color lists established by the City Guidelines or equivalent. Reflective roofing material or reflective glazing (e.g., mirror or reflective coated glass) are prohibited.
Exterior lighting shall not exceed a height of twenty (20) feet and exterior lighting shall be shielded to direct lighting downward and shall not be directly visible from a distance greater than 1,000 feet.
Any roof mounted HVAC, satellite dishes or other equipment shall be fully screened from view below a plane horizontal to the bottom of said equipment.
No temporary house, trailer, tent, garage or other out building shall be used on any Lot at any time as a Residence, either temporarily or permanently.
X.
Storage of Vehicles and Other Equipment
No recreational vehicles, boats, campers, commercial trucks (other than standard pickup trucks) shall be stored on a Lot except within the garage or fully screened in the rear yard.
No animals, livestock, horses or poultry of any kind shall be raised, bred or kept on or in any Residence or Lot, except domestic animals and in no event shall more than two (2) dogs and/or two (2) cats be permitted on any Lot. No pets shall be kept, bred or maintained for any commercial or hobby breeding purposes. Dogs shall not be permitted to bark, howl or make other loud noises so as to disturb other Owners or residents of the Lots.
No oil drilling, oil development, oil refining, oil derrick or other structure designed for use in drilling for oil or natural gas, quarrying or mining operations of any kind shall be permitted upon or in any Lot. Nor shall oil wells, tanks, mineral excavations or shafts be permitted upon or in any Lot.
No garbage, trash, rubbish, weeds, clippings from trees, shrubs or lawns, ashes or other refuse may be thrown, dumped or allowed to accumulate on any Lot. Provided however, noncommercial compost piles for use in gardens which do not create a nuisance to the Owners of adjoining Lots may be maintained if screened from view from the other Lots. All garbage, trash and rubbish shall be placed and kept in covered sanitary containers screened from view from the public roads and other Lots and shall be regularly removed by commercial trash refuse services from each Residence or Lot net less than one (1) time per week. Refuse shall not be placed curb side more than twenty-four (24) hours before the scheduled pick up time. There shall be no burning of refuse out of doors.
No outside clotheslines or other outside drying or airing facilities shall be permitted unless enclosed within a fenced service area or other area so as to conceal them from public roads and other Lots.
If a Residence or other improvement on a Lot is destroyed, wholly or partially by fire or other casualty, such Improvement, but shall be properly rebuilt, repaired or replaced to conform to this Declaration within 180 days of the date it was wholly or partially destroyed, or all remaining debris and foundations shall be removed from the Lot within sixty (60) days of the date of said destruction.
No business activities of any kind shall be conducted in Residences or on any portion of a Lot; except home occupations, provided that only members of the family residing at the Lot are employed, the use is incidental and secondary to use of the Lot as a Residence and no stock and trade is manufactured, displayed or sold on the Lot. Further, there shall be no external evidence of the home occupation activity, such as signs, commercial vehicles, inordinate traffic, outside storage, noise, dust, oils, noxious fumes or other nuisances permitted upon, or to emanate from, any Lot. The construction , reconstruction or remodeling of Residences and Improvements on a Lot shall not be deemed to violate this provision.
The landscaping of each Lot exterior to the Residence shall be finished within six (6) months of the completion of the Residences on said Lot. Thirty percent (30%) of a Lot’s area shall be private open space as required by the City Guidelines, including the planting and maintenance of xeriscape plants. No solid walls or fences shall be placed on property lines adjoining the Petroglyph National Monument. Chain link or other shiny metal fencing is not permitted on any Lot. Side Lot line walls or fences shall be set back not less than fifty (50) feet from the front Lot line. The maximum height of walls or fences on any Lot shall be six (6) feet above grade. The colors of walls and fences on the Lots shall comply with the City Guidelines. Any walls constructed along the Unser Boulevard right of way shall conform to the standards approved by the City of Albuquerque.
No illegal, noxious or offensive activity shall be carried on within the Lots or the public roads, nor shall anything be done which is, may be or may become a nuisance or cause unreasonable disturbance or annoyance to Owners in the enjoyment of their Residences. No firearms, BB guns or fireworks shall be discharged or used on the Lots or within the public roads. Open fires shall no be permitted on any Lot.
No signs or other advertising shall be erected, placed or displayed on a Lot other than one for sale or for lease sign of not more than two (2) feet by three (3) feet in size.
Before commencing construction, remodeling, additions to, alterations of or removal of any residence or other improvements on a Lot, the owner shall apply to the Committee for approval therof. The owner shall submit to the Committee the following:
(a) A complete set of plans, including, but not limited to, foundation plans, floor plans, elevations, details and specifications which identify construction materials and exterior color scheme and site plan showing the location of the Improvements on the Lot, including, but not limited to all set backs.
(b) A non-refundable review fee of not more than $500.00.
(c) No building Improvement of any kind, including walls and landscaping, shall be erected, altered, placed or maintained upon any Lot, unless, and until the complete set of final plans and specifications has been approved in writing by the Committee. If the Committee does not approve the plans and specifications within thirty (30) days after receipt thereof, then approval shall not be required, provided that no Improvement shall be erected which violates any of the terms of this Declaration.
(d) The Committee shall have the right to grant variances when required by a Lot’s shape of a Lot, topography or easement locations.
(e) Neither the Committee nor its members shall be responsible in any manner whatsoever for any defect in any plans or specifications as submitted or revised by said Committee or for work done pursuant to the requested changes to said plans and specification.
XXI.
Term of Restrictions and Amendment
(a) All of the covenants set forth in this Declaration shall be binding upon the Owners and their heirs, personal representatives, successors and assigns and all persons claiming by, through or under them, for a period of thirty (30) years from the date of the filing of this instrument in the office of the County Clerk of Bernalillo County, New Mexico, at which time this Declaration shall be automatically extended for successive periods of ten (10) years, unless revoked or amended by an instrument in writing, executed and acknowledged by the Owners of not less than seventy-five percent (75%) of the Lots which instrument shall be recorded in the office of the County Clerk of Bernalillo County, New Mexico, within ninety (90) days prior to the expiration of the initial term hereof or any ten (10) year extension.
(b) During the initial thirty (30) year term of this Declaration and thereafter, the Owners of not less than seventy-five percent (75%) of the Lots may at any time and from time to time release any or all of the Lots hereby restricted from any one or more, or all of the covenants of this Declaration or may modify, change or amend this Declaration as to any or all of the Lots by executing and acknowledging an appropriate agreement or agreements in writing for such purposes and filing the same for record in the office of the County Clerk of Bernalillo County, New Mexico.
(a) A six (6) inch tolerance by reason of mechanical variance of construction is hereby automatically allowed for any distance requirements imposed by this Declaration or by the Committee.
(b) Invalidations of any portion of this Declaration by judgment or court order, shall in no way affect any of the other provisions of this Declaration, which shall remain in full force and effect.
(a) All provisions of this Declaration shall be binding on all Lots and the Owners, regardless of the source of title of such Owners, and any breach thereof, if continued for a period of fifteen (15) days from and after the date that the Committee or Owner notifies the Owner or party breaching this Declaration to refrain from the continuance of such action and to correct such breach, shall warrant the Committee or another Owner to apply to any court of law or equity having jurisdiction thereof for an injunction or other relief. The prevailing party in any such action shall be entitled to its reasonable expenses in prosecuting such suit, including attorney’s fees from the non-prevailing party.
(b) No delay or omission on the part of the Committee or any Owner(s) in exercising any right, power, or remedy herein shall be construed as a waiver thereof or acquiescence therein.
(c) No right of action shall accrue, nor shall any action be brought or maintained by anyone against the Committee for or on account of the failure or neglect of the Committee to enforce any breach of this Declaration.
| IN WITNESS WHEREOF, the undersigned has hereunto set its hand | |||
| and seal the day of | , 2004. | ||
| FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE UNDER | ||
| TRUST AGREEMENT DATED | , 2004. | |
By:
Its:
STATE OF NEW MEXICO )
)
COUNTY OF BERNALILLO )
This instrument was acknowledged before me on , 2004, by
, of FIRST AMERICAN TITLE
INSURANCE COMPANY, TRUSTEE UNDER TRUST AGREEMENT DATED , 2004.
MY COMMISSION EXPIRES: NOTARY PUBLIC