KNOW ALL MEN BY THESE
PRESENTS: That SANDIA PEAK TRAM COMPANY, a New Mexico corporation, hereinafter
called Grantor, being the owner of SANDIA HEIGHTS SOUTH, UNIT 16, a Subdivision
in Bernalillo County, New Mexico in accordance with the Plat thereof filed in
the office of the County Clerk of said County on the 30th day of September,
1975, hereby declares that it has established, and does hereby establish a
general plan for the improvement, development, and restriction of said
property, subject to which all tracts, lots and portions of lots in said
subdivision shall be sold and conveyed.
All the covenants, reservations, and
restrictions hereinafter set forth are made for the benefit of each and every
subsequent owner of any portion of the land in said subdivision or any interest
therein, and shall inure to the benefit of and bind all subsequent owners
thereof.
These covenants are to run with the land and
shall be binding on all parties and all persons claiming under them until the
year 2000 A.D., at which time said covenants shall be automatically extended
for successive periods of ten years, unless the then recorded owners of a
three-quarters majority of the total acreage in said Sandia Heights South-Unit
16 agree to change said covenants in whole or in part. Said restrictions,
reservations, and covenants are as follows:
Section 1: "The property" shall mean and refer to that
certain real property described above being Sandia Heights Unit 16 according to
the plat thereof filed in the Office of the County Clerk, Bernalillo County,
New Mexico on the 30th day of September, 1975, and shall also refer to any
additions thereto as may hereafter be brought within the restrictions by action
of the Grantor by subsequent declaration filed in the Office of said County
Clerk.
"Tract" - Tract shall mean one of
the tracts shown on said plat of Sandia Heights South Unit 16, namely -Tracts
1, 2, 3, or 4, as shown on said plat.
Section 2: "Special Use residential/commercial" shall
mean a tract zoned for and restricted to apartments, town houses, condominium
or similar dwellings and light commercial and used for such purposes, under
single or multi-ownership, and such structures and improvements as permitted by
the Zoning Ordinances of Bernalillo County, New Mexico, and further limited to
detailed development plans approved by the City/County Planning Department.
Section 3: "owner" shall mean and refer to the record
owner whether one or more persons or entities, of a fee simple title to any lot
or tract which is part of the property, and contract buyers, but excluding
those having such interest merely as security for the performance of an
obligation.
Section 4: "Grantor" shall mean and refer to Sandia
Peak Tram Company, its successors and assigns.
Section 5: "Common area" shall mean any real property
owned by any association of property owners for the common use and enjoyment of
two or more lot or tract owners within the exterior boundaries of the property.
Tracts 1, 2, 3 and 4 are
hereby designated as Special Use Residential/Commercial.
Section 1: Multi-family
residential construction. No structure shall be erected, altered, placed or
permitted to remain on any multi-family residential tract other than an
apartment, town house, condominium or similar living unit with appurtenant
recreational and service facilities. The gross living area of each and every
complex of multi-family residential units shall not exceed 40% of the gross
land area, and the maximum number of single family units shall not exceed 10
per acre. Gross living area shall be defined as total heated area of a dwelling
plus the roof overhang, carport and/or garage, enclosed patio, enclosed yard
area, enclosed walks, balconies and other areas enclosed by a wall, fence or
structure. Not included in the gross living area are common areas including but
not limited to swimming pool, tennis courts, other recreation areas, open
walkways, driveways, parking areas, roadways, planted and natural areas. No
building or structure shall be located on any multi-family residential tract
nearer than 45 feet to the front property line or 25 feet to the rear or any
side property line.
Section 2: Height. Except by
specific approval of the Architectural Control Committee, no multi-family
residential structure shall be a full two story structure. A two story
structure is defined as one which is two full stories above the natural grade
of the lot on all sides.
Section 3: Commercial Construction. No
structure shall be erected, altered, placed, or permitted to remain on any
commercial site other than buildings designated and used for light commercial
uses as permitted by the Zoning ordinances of Bernalillo County, New Mexico
then in effect, under the zoning designation of C or M, and further limited by
section 12 of Article VI. The ratio of gross land area to gross building area
shall not be less than 2.0 to 1. Gross building area is defined as the total
roof area of all buildings together with any and all related structures under
roof, except parking structures.
Section 1: Architectural Control Committee. An Architectural Control Committee, hereinafter
called the Committee, is hereby established consisting of Robert J. Nordhaus,
Ben L. Abruzzo, and Max Flatow as the appointees of the Grantor, to serve for a
period of 10 years from the date hereof and until their successors shall be
appointed and qualified. Vacancies occurring either before the end of or as a
result of the expiration of such ten year term shall be filled by members of
the Committee, provided that within 30 days of any appointment owners of a
majority of acreage in the property may select other appointees in their stead.
Section 2: Before
anyone shall commence the construction, remodeling, addition to, or alteration
of any building, swimming pool, wall, fence, coping, tank, visible air
conditioning unit, radio antenna more than five feet above a building, or any
structure or sign (except for rent or for sale signs, less than 5 square feet
in area) on any lot or tract, there shall be submitted to the Grantor for
transmittal to the Architectural Control Committee:
a. preliminary floor plans, elevations, and locations of
any structure on the lot, including drainage plans for any earth work on
multi-family or commercial tracts, and drawings of any signs in excess of five
square feet in diameter.
b. after approval of preliminary plans, two complete sets
of the final plans and specifications for said work.
Section 3: No
structure or improvement of any kind shall be erected, altered, placed or
maintained upon any lot or shall any earth work be commenced unless and until
the final plans, elevations and specifications therefore have received such
written approval as herein provided. Such plans shall include plot plans,
showing the location on the lot or property of the building, wall, fence, coping,
sign or other structure proposed to be constructed, placed, altered or
maintained, and elevation of same, together with proposed color scheme for
roofs and exteriors of any structure, indicating the materials for the same.
Section 4: No signs
shall be erected or maintained on any place within the property limits except
as specifically approved by the Architectural Control Committee. Neon signs are
prohibited except as specifically approved by the Committee on a commercial
tract.
Section 5: The Architectural
Control Committee is authorized to charge not more than $100.00 for review of
plans for structures and alterations of multi-family or commercial units or
complexes. At the time of submission of the plans and specifications as set
forth herein the owner shall cause to be paid to the Grantor an initial fee of
$25.00 for multi-family or commercial units. The Committee shall approve or
disapprove said plans and specifications within 30 days from the receipt
thereof. One set of said plans and specifications with the Committeešs approval
or disapproval endorsed thereon shall be returned to the owner and the copy
thereof shall be retained by the Grantor.
The Committee shall have the right to
disapprove any plans, specifications or details submitted as aforesaid, in the
event such plans and specifications are not in accord with all the provisions
of this declaration, or a design or color scheme in the proposed structure is
not in harmony with the general surroundings of such lot or tract or adjacent
structure, of if the structure shall unduly interfere with the view from nearby
residences, apartments, or other multi-family residences, or if the plans and
specifications submitted are incomplete, or if the Committee deems that plans
and specifications are contrary to the spirit and intent of these restrictive
covenants, or contrary to the interest and welfare and rights of all or any
part of the owners of lots or tracts in Sandia Heights South Unit 16 or other
subdivisions surrounding Unit 16 in Sandia Heights. The decision of the
Committee in any of these matters shall be final. No building or improvement of
any kind shall be constructed or placed on any tract or lot in Sandia Heights
South Unit 16 without the prior written consent of the Committee.
Neither the Committee, its members or the
Grantor shall be responsible in any manner whatsoever for any defect in any
plans or specifications submitted or as revised by said Committee or the
Grantor, or for any work done pursuant to the requested changes or any plans
and specifications.
Section 6: The
exterior of all buildings on all lots and tracts shall be completed according
to plans approved by the Architectural Control Committee within twelve (12)
months of start of construction, except where extensions of time are requested
and granted by the Architectural Control Committee or the Grantor.
Section 1: Drainage. Natural
drainage channels shall not be changed by any construction. Multi-family
complexes shall be developed in such a manner as to retain 50% or more of the
storm water run-off within the boundaries of each residential lot, so as to
comply with the standards of the Albuquerque Metropolitan Flood Control
Authority or its successor then in force. Remaining run-off shall drain into
existing channels as shown on the recorded plat of the property.
Section 2: Conservation. Owners and
developers shall design all construction and landscaping to comply with
existing ecology and conservation standards.
Natural vegetation shall be left undisturbed
where practical on all tracts and lots except as required for access to
property, clearing of building sites and establishment of lawns and flower beds
adjacent to buildings. No chinese elms, cotton bearing cottonwood trees, or
bermuda grass shall be maintained on any lot or tract. No grouping of trees
shall be planted to constitute a screen except as specifically approved by the
Architectural Control Committee.
Section 3: Roads and utilities. Access
roads and utility easements are dedicated and reserved as shown on the recorded
plat of the property. No additional access roads or driveways, either public or
private shall be constructed directly from any lot or tract to
Section 4: Each
living unit complex and commercial structure on the property shall be provided
with a method of sewage disposal consistent with the master plan of sewage
disposal for the property and otherwise meeting the recommended standards of
the appropriate governmental authority and approved by the Architectural
Control Committee. Garbage and waste shall be kept in covered metal containers,
screened from general view, and stored or disposed of in a manner approved by
the appropriate governmental authority. Outdoor privies are prohibited except
during construction.
Section 5: Butane and
similar tanks shall conform to appropriate municipal or state regulations and
must be screened and located so as not to detract from the appearance of any
lot or tract.
Section 6: No wire fence,
or party wall shall be maintained on the property, except by Grantor on
subdivision boundaries, and except for party walls maintained between living
units in multifamily complexes as approved by the Architectural Control
Committee.
Section 7: In the
event that any structure is destroyed, wholly or partially by fire or any
casualty, such structure shall be promptly rebuilt or repaired to conform to
this declaration or shall be removed from the lot. In the event any owner fails
to remove the debris or unsightly material and charge the cost thereof
including reasonable overhead charge against the owner thereof together with
interest. If such charge is not repaid to the Grantor within 30 days after
written notice to the owner demanding payment, the assessment shall bear
interest from the date of said notice at the rate of 10% per annum and the
Grantor may bring an action at law against the owner obligated to pay the same.
Such charge shall become a lien against the lot or tract concerned upon the
recording of a notice of lien and said lien may be foreclosed by the Grantor
against the property and interest costs and reasonable attorney's fees of any
such action shall be added to the amount of such lien. Said notice of lien
shall state the amount which has become delinquent including attorney's fees
and interest accrued thereon, a description of the property in respect to which
the delinquent amount is owing and the name of the record owner of such
property. Such notice shall be executed by the Grantor, or its agent, and
acknowledged. Upon the satisfaction of said lien, the Grantor or its agent
shall record a further notice similarly signed and acknowledged satisfying said
lien and releasing the same. Each owner of any lot or tract by his acceptance
of a conveyance to said lot or tract hereby vests in the Grantor, its agents or
assigns, the right and power to bring all actions against such owner personally
for the collection of all charges provided for in this Declaration of
Restrictions, and to enforce any such lien by all means available for the
enforcement of such liens, including foreclosure in like manner as a mortgage
or Deed of Trust lien on said property. The Grantor, its agents or assigns
shall have the power to bid in any interest foreclosure of mortgage liens. Said
lien shall be subordinate to the lien or charge of any prior mortgage or deed of
trust for value on said property.
Section 1: No trade
or offensive activity of any kind shall be carried on upon any residential lot
or tract nor shall anything be done on any lot or tract which shall constitute
an annoyance or nuisance to other owners and the property.
Section 2: No trash
shall be burned on the premises except in approved incinerators located indoors
or within the service yard. No garbage shall be burned. No barbecue or other
outdoor cooking facility shall be located thereon nearer than 10 feet from
either side of the lot line unless made a part of the building structure.
Section 3: No house
trailer or boat shall be parked on any lot except in designated locations
approved by the Architectural Control Committee, nor shall any trailer,
basement, tent, shack, garage or other out building be used as a residence
temporarily or permanently.
Section 4: No
commercial type vehicles, trucks or campers shall be stored or parked on any
residential lot or tract for an unreasonable period of time (30 consecutive or
45 non-consecutive days or more) except in enclosed garages, or parked on any
residential street or alley except while engaged in transport to and from a
residence. For the purpose of this covenant a 3/4 ton or smaller vehicle,
commonly known as a pick-up truck, shall not be deemed a commercial vehicle or
truck. Such vehicle shall be deemed a commercial vehicle or truck when equipped
with a camper and shall not be exempt from the restrictions heretofore
mentioned in this section. No unused automobiles or vehicles of any kind except
as hereinabove provided shall be stored or parked on any lot except in a closed
garage. An "unused vehicle" shall be defined as any vehicle which has
not been driven under its own power for a period of thirty consecutive days or
longer. In the event any unused vehicle remains parked on any tract or lot
within the property boundaries, the Grantor shall have the right to remove the
same after 48 hours notice to the owner thereof, the expenses to be charged
against the owner thereof, and such charge shall become a lien upon the
recording of a notice of lien and shall be enforceable as provided in Article
V, Section 7.
Section 5: No
animals, livestock, poultry of any kind shall be raised, bred or kept on any of
said lots or tracts except that dogs, cats or other household pets may be kept
provided that they are not kept, bred or maintained for any commercial
purposes. Grantor reserves the right to publish and record regulations, binding
upon all owners, for reasonable restraint of animals running loose within the
property boundaries.
Section 6: No
advertising signs (except one of not more than 5 square feet "For
Rent" or "For Sale" sign per lot or tract), bill boards,
unsightly objects or nuisances shall be erected, placed or permitted to remain
on any portion of said property, nor shall said property be used in any way for
any purposes which may endanger the health or unreasonably disturb the owner of
any tract within the boundary of Unit 16, provided however that the foregoing
covenant shall not apply to the business activities, signs and billboards or
the construction and maintenance of buildings, if any, of Grantor, its agents
or any purchaser from the Grantor, during the construction, sale or lease of
any apartments, town houses or complex of living units provided however that
such advertising signs shall be subject to the reasonable control of the
Architectural Control Committee and the privilege of displaying such signs
shall terminate upon completion of construction and sale or lease of 90% of the
living units in any town house or apartment complex.
Section 7: All
clotheslines, basketball backboards, equipment, garbage cans, service yards,
woodpiles or storage piles shall be kept screened by adequate planting or
fencing so as to conceal them from view of neighborhood residential units and
streets. All clotheslines shall be confined to patio areas.
Section 8: No refuse
piles or other unsightly objects or materials shall be allowed to be placed or
remain upon any lot or tract on the property. The Grantor or the Architectural
Control Committee or their agents shall have the right to enter upon said lands
and remove such refuse piles or other unsightly objects or materials at the
expense of the owner (and such entries shall not be deemed as trespass) upon
due notice to lot owner and failure of owner to comply. The cost of removal of
such refuse piles or other unsightly objects shall be charged by the Grantor
against the owner and upon failure of the owner to repay the Grantor for such
charges, the charges shall bear interest from the date of said notice at the
rate of 10% per annum and the Grantor nay enforce payment thereof and said
charges shall become a lien against the premises upon recording of a notice of
lien as provided in Article V, Section 7 above.
Section 9: All
utilities, driveways and structures constructed within any tract or lot
boundary shall be maintained and kept in repair by the owner thereof. No owner
shall do any act nor any work that will impair any utility easement or do any
act or allow any condition to exist that will adversely affect owners of other
lots or tracts.
Section 10: Easements
for underground electrical, telephone and water service may be crossed by
driveways and walkways provided the owner or builder makes prior arrangements
with the utility company furnishing such service. Such easements for
underground service shall be kept clear of all other improvements including
buildings, patios or other paving, other than crossing walkways or driveways
and neither Grantor nor any utility company using the easements shall be liable
for any damage done by either of them or their assigns, agents, employees or
servants to shrubbery, trees, flowers or other improvements of any owner
located on the land covered by the easement.
Section 11: No
unshaded flood lights shall be maintained which cause light to shine directly
into the living units of any other residents on the property.
Section 12: The
following uses permitted in the C zone of Bernalillo County Zoning Ordinances
are specifically forbidden on any tract in Sandia Heights South Unit 16:
Any part or all of the right, title, and interest in
the estate reserved by the Grantor herein or owned by the Grantor may be
transferred or assigned to any person, firm or corporation by appropriate
instrument in writing duly executed by the Grantor and recorded in the Office
of the Clerk and Recorder of Bernalillo County, New Mexico and whenever the
Grantor is hereby referred to such reference shall be deemed to include its
successors and assigns.
If the parties hereto or any of them or their heirs,
executors, administrators, successors, or assigns shall violate or attempt to
violate any of the covenants herein provided, and other person or persons
owning any lot or tract on said property, or the Grantor, shall have the right
to prosecute any action in the proper court to enjoin such party of violating
such covenant or to recover such damages for such violation or both.
No delay or omission on the part of the
Grantor its successors or assigns or the owners of other lots within the
property, having a right hereunder to exercise the same, in exercising any
right, power or remedy herein provided for in the event of any breach of the
restrictions, covenants or reservations herein contained shall be construed as
a waiver thereof or acquiescence therein and no right of action shall accrue or
shall any action be brought or maintained by anyone whatsoever against the
Grantor, its successors or assigns for or on account of failure or neglect to
exercise any right, power or remedy herein provided for in the event of breach
of any of these covenants, restrictions or reservations.
Invalidation of any of these covenants shall in no way
affect the validity of the other provisions, which shall remain in full force
and effect.
Signatures
on file in the SHHA office.