KNOW
That Morgan Real Estate and Development Inc.,
a New Mexico corporation, hereinafter call Grantor, being the owner of the
following described property situate in Bernalillo County, New Mexico, to-wit:
Lots
number 8201 through 8252 inclusive of SANDIA HEIGHTS SOUTH, UNIT 8C,
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 the day of 1995
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 lots in said
subdivision shall be sold or 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 and bind all subsequent owners thereof; said
covenants, reservations and restrictions being as follows:
1.
These covenants,
reservations and restrictions are to run with the land and shall be binding on
all parties and all persons claiming under them until the year 2015 A.D. at
which time said covenants, reservations and restrictions shall be automatically
extended for successive periods of ten (10) years. These covenants,
reservations arid restrictions may be amended at any time by a recorded
instrument, executed and acknowledged by the then record owners of not less
than two-thirds (66%) of the residential lots in said Sandia Heights South,
Unit 8C.
2.
Of the parties
hereto, or any of them, or their grantees, successors-in-interest or assigns,
shall violate or attempt to violate any of the covenants, reservations and
restrictions herein provided, Grantor, the Architectural Control Committee
(hereinafter called the "Committee"), any person or persons owning
any real property in said Sandia Heights South, Unit 8C, or the Sandia Heights
Homeowners Association (hereinafter called the "Association"), on
behalf of such owners, shall have the right to enforce by proceeding, at law or
in equity, for damages or for injunction or both, all restrictions, covenants,
conditions, rights and duties imposed, allowed, or granted by the provisions of
this Declaration. In any such proceedings, the prevailing parties shall be
entitled to recover cost and expenses, including reasonable attorney's fees.
3.
Invalidation of
any of these covenants and restrictions shall in no way affect the validity of
the other provisions, which will remain in full force and effect.
4.
All lots in
Sandia Heights South, Unit 8C, are hereby designated as residential lots.
Sandia Heights South, Unit 8C, is zoned SU-Residential for one-story, planned
development. No structures shall be erected, altered, placed or permitted to
remain on any lot other than one story, single-family dwellings and buildings
related thereto except that this provision shall not prevent the combination of
adjoining lots for one such dwelling; however, in no event shall any lot be
further subdivided. The Grantor may dedicate one or more lots or any portion
thereof, as a park. No structures shall be erected, altered, placed or
permitted to remain on Lots numbered 8201 through 8227, inclusive, and 8237
through 8252 inclusive, of Sandia Heights South, Unit 8C, that exceed eighteen
(18) feet in height. No structures shall be erected, altered, placed or
permitted to remain on Lots numbered 8228 through 8236, inclusive, of Sandia
Heights South, Unit 8C, that exceed seventeen (17) feet in height.
5.
A Committee is
hereby established, consisting of Don Morgan, Ted Zmroczek, Scott Schiabor,
Bill Chreist, and Richard Krumbein as the appointees, to serve for a period of
ten (10) years from the date hereof and until their successors shall be
appointed and qualify. At least one appointee to the Committee shall be a
member of the Board of Directors of the Association. Vacancies occurring either
before the end of or as a result of' the expiration of such 10-year term shall
be filled by appointment of a successor by the members of the Committee,
provided that within thirty (30) days of any appointment, owners of a majority
of the residential lots may select other appointees in their stead. A majority
constitutes a quorum in any meeting of the Architectural Control Committee.
6.
BEFORE ANYONE
SHALL COMMENCE CONSTRUCTION, INCLUDING WITHOUT LIMITATION SITE PREPARATION
CLEARING OF NATURAL VEGETATION OR EXCAVATION, INSTALLATION, REMODELING OR
ALTERATION OF ANY BUILDING, SWIMMING
a. Plot plans showing the location on the lot of any
structures proposed to be constructed, placed, altered, or maintained; floor
plans and elevations; finished grades different from the existing grades on the
lot; proposed colors, including color schemes for roofs and all exteriors,
indicating materials for same.
b. Two complete sets of the final plans and
specifications for said work.
No construction, structure, or
improvement shall commence or shall be erected, altered, placed or maintained
upon any lot unless and until the final plans, elevations, and specifications
therefore have received such written approval as herein provided. All
construction, improvements, installations, remodeling, or alterations shall
comply strictly with the approved plans, and any terms and conditions imposed
by the committee in its written approval. Once approved, no construction,
structure, or improvement may vary from the approved plan without further
written approval of the Committee. Any person purchasing any portion of the
property subject to this Declaration acknowledges that the breach or violation
of this covenant is likely to result in irreparable harm to the rights and
interests of other owners in the subdivision and that the Grantor, the
Committee or the Association, on behalf of such owners, shall be entitled to
injunctive relief, temporary or permanent, in order to prohibit such violation;
provided, however, that this provision shall be in addition to any other
remedies available hereunder or at law or equity.
7.
The Committee is
authorized to charge not more than $150 for review of plans. At the time of
submission of the plans and specifications as set forth herein, the owner shall
pay said fee in advance. The Committee shall provide full approval, conditional
approval, or disapproval of said plans and specifications in writing within
thirty (15) days from the receipt thereof. All conditions of approval and
variances shall be confirmed in writing. One set of said plans and
specifications with the Committee's approval or disapproval endorsed thereon
shall be returned to the owner and the other copy thereof shall be retained by
the Committee. Should the Committee fail either to approve or disapprove any
plans or specifications submitted to it within said thirty (15) day period,
failure to do so shall not be construed as a tacit approval of said plans and
specifications, nor shall such failure to approve or disapprove constitute a
waiver of the Committees absolute authority to approve plans and specifications
prior to construction, alteration, or placement of improvements. Approval of
plans and specifications for all construction installations, improvements,
remodeling, or alterations shall be valid only for a period of one (1) year.
Failure to commence and complete construction within one (1) year following
date of approval shall require reapplication and resubmittal of plans,
specifications, and fees to the Committee.
The Committee shall
have the right to disapprove any plans, specifications or details submitted to
it as aforesaid, in the event, such plans and specifications are not in accord
with all the provisions of this Declaration. Considerations may include, but
shall not be limited to, the following: if a color is not a natural earthtone
(brown) or other color approved in writing by the Committee: if the proposed
Structure is not in harmony with the general surroundings of such lot or the
adjacent structure; if the structure shall unduly disturb trees, ground cover,
rocks, for other natural features on the lot; if the structure shall unduly
interfere with the view from nearby 'residences; if the Committee deems said
plans and specifications to be contrary to the interest and the welfare and
rights of all or any part of Sandia Heights South, Unit 8C. The decision of the
Committee in any these matters shall be final and no building or improvement of
any kind shall be constructed or placed upon any lot in Sandia Heights South,
Unit 8C, without the prior written consent of the Committee.
Neither the Committee,
its members, nor the Grantor shall be responsible in any manner whatsoever for
any defect in any plans or specifications submitted nor as revised by said,
Committee or the Grantor, or for any work done pursuant to the requested
changes of said plans and specifications
8.
Any visible
equipment shall be thoroughly screened. Solar heating equipment will be
considered for approval based on the merit of its design and the manner in
which it is constructed so as not to detract from other homes in the
subdivision. Roof-mounted solar equipment will be difficult to conceal;
however, if the color and structure are done in good taste, this type of
installation can be considered for approval
9.
The Architectural
Control Committee WILL NOT APPROVE the following:
a.
EXTERIOR USE OF
COLORS THAT
b. WHITE ROOFING MATERIAL.
c. TRANSLUCENT OR TRANSPARENT, GARAGE DOORS
d. OUTSIDE CLOTHESLINES, RADIO ANTENNAS, TV ANTENNAS AND
SATELLITE DISCS.
e. BUTANE OR PROPANE TANKS.
f. FRONT COURTYARD WALLS WILL BE ALLOWED.
g. WALLS OR FENCES TALLER THAN SIX (6) FEET ABOVE THE
NATURAL GRADE ON THE
h.
UNSCREENED
GROUND-MOUNTED OR ROOF-MOUNTED HEATING AND AIR CONDITIONING EQUIPMENT.
i.
BRICK OR BRICK
VENEER EXTERIORS.
10. Construction of any structure or improve shall be
continuous and proceed in an orderly fashion without interruptions, and any
structure or improvement on any lot shall be completed in a reasonable time,
not to exceed twelve (12) months from the commencement of construction.
Commencement of construction shall mean the first on-site work for
construction, including, but not by way of limitation, excavation the purpose
of foundation.
11. Materials and equipment necessary for construction,
and all debris resulting from clearing or construction, shall be confined to
the lot and shall not be permitted on any other lots, common, areas or
roadways. During constructions a receptacle must be on site to contain all
trash and debris.
12. Each residence shall be provided with a method of
sewage disposal meeting the recommended standards of the Environmental Impact
Division of the State of
13. Landscaping: No Chinese Elms, or Poplar,
cotton-bearing
14. Without specific approval of the Committee, no
grouping of trees shall be planted to constitute a screen nor may any grouping
of trees, shrubs, or hedges be planted that shall unduly interfere with the
view from nearby residences.
15. Each dwelling shall be developed in such a manner as
to comply with the standards of the Albuquerque Metropolitan Arroyo Flood
Control Authority or its successor then in force. Public agencies and Grantor
or its designee shall have the right to enter upon all drainage easements for
construction and maintenance of drainage facilities.
16. Access roads and utility easements are dedicated and
reserved as shown on the Plat of the subdivision. All rights to minerals,
water, oil and natural gas underlying the property are reserved to the Grantor.
17. No wire fences shall be maintained in the residential
area of the Subdivision, except by Grantor, on subdivision boundaries. Fences,
walls, patios and porches must adhere to approval by the Committee.
18. No signs of more than five (5) square feet shall be
maintained within the subdivision after completion of the original development
and sale of the dwelling units unless specifically approved by the Committee. All
signs, other than a typical "for sale" or "for rent", sign,
must be approved by the Committee.
19. No lot may be further subdivided, nor may a portion of
any residential lot be sold except to adjacent property holders for the purpose
of increasing the size of an adjacent lot.
20. Basketball backboards, equipment, garbage cans,
service yards, woodpiles or storage piles shall be kept screened by adequate
planting, fencing or other acceptable screening techniques so as to conceal
them from view of neighborhood residential units and streets. Backboards shall
be clear or earthtone colors (tans, browns - no whites) to blend with the
natural surroundings.
21. 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.
22. In the event any owner fails to remove debris or
unsightly material, the Grantor or the Association may remove said unsightly
material and charge the cost of removal, including reasonable overhead charge
against the owner, together with interest. If such charge is not paid within
thirty (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
fifteen percent (15%) per annum and the Grantor or the Association may bring an
action at law against the owner obligated to pay the same. Such charges shall
become a lien against the lot or tract concerned upon recording of a notice of
lien and said lien may be foreclosed by the Grantor or the Association against
the property, the same as any mechanicıs lien, and interest costs and
reasonable attorney 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 due, a
description of the property and the name of the owner, or reputed owner of such
property. Such notice shall be executed by the Grantor its agent or the
Association, and acknowledged. Upon the satisfaction of said lien, the Grantor,
its agent, or the Association shall issue a further notice similarly signed and
acknowledged stating that said lien had been satisfied and releasing the same.
Each owner of any lot or tract by his acceptance of a conveyance of said lot or
tract hereby vests in the Grantor, its agents or assigns, or the Association
the right and power to bring all actions against such owner personally for
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 mechanicıs lien, a mortgage or
deed of trust lien on said property. The Grantor, its agents, or assigns, or
the Association shall be subordinate to the lien or charge of any prior
mortgage or deed of trust for value on said property.
23. Any and all of the right, title, interest and estate
given to or reserved by the Grantor herein or on the plat may be transferred 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 whatever the Grantor is hereby referred to,
such reference shall be deemed to include its successors and assigns.
24. 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
25. By acceptance of a deed to his or her property, each
owner of a residence in Sandia Heights South, Unit 8C agrees to be a member of
the Sandia Heights Homeowners Association, a
26. If and when the property of SANDIA HEIGHTS SOUTH, UNIT
8C, meets the statutory annexation requirements enabling annexation of the
property to the City of Albuquerque, such property shall, at the option of the
City be so annexed and become a part of the City. At such time of annexation,
if ever, all property owners may be required to pay their proportionate share of
bringing the water and sewer systems servicing the property into compliance
with all applicable standards imposed by the appropriate governmental
authorities.
27. Retaining walls shall not be removed or moved. Walls
and fences must be constructed of adobe, brown slump block, or stuccoed cement
block. Other construction materials for walls and fences shall not be
permitted. Side yard walls must be located on the property boundaries. Front
courtyard walls will be allowed.
1.
No trade or
offensive activity of any kind shall be carried on upon any lot, nor shall
anything be done on any lot which shall constitute an annoyance or nuisance to
the neighborhood. Without limiting the generality of any of the foregoing
provisions, no speakers, horns, whistles, bells or any other devices, except
security devices used exclusively for security purposes, shall be located, used
or placed on any lot which are audible from neighboring lots.
2.
No trash or
garbage shall be burned on the premises. Garbage shall be placed in covered
containers, said containers to be concealed from public view by an attractive
enclosure.
3.
No trailer, tent,
shack, garage or other vehicle or outbuilding shall be used as a residence,
temporarily or permanently.
4.
No commercial
type vehicles, trucks, boat or horse trailers, campers or camper shells, boats,
house trailers, mobile homes, recreational vehicles, or camper trailers shall
be visibly parked or stored on any residential lot except in enclosed garages,
or parked on any residential street or alley except which 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 pickup 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.
5.
No unused
automobiles or vehicles of any kind except 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 30 consecutive days or longer. In the event any unused vehicle
remains parked on any tract or lot within the property boundaries, the Grantor
or the Association 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 charges shall become a lien upon the recording of a notice of
lien and shall be enforceable.
6.
No motor vehicle
or trailer of any type shall be constructed, reconstructed or repaired on any
street or any lot in such a manner as will be visible from neighboring
property.
7.
All dead
vegetation, including trees, shall be removed within thirty (30) days.
Plantings to be trimmed and cut as necessary or regular intervals to maintain
them in a neat and attractive manner.
8.
No animals shall
be kept on any lot except domestic cats and dogs. Keeping of these animals will
be in accordance with County ordinances.
9.
No room or rooms
in any residence may be rented or leased to any person, providing, however,
that nothing contained herein shall be construed as, preventing the renting or
leasing of an entire lot together with its improvements as a single unit to a
single family.
10. It shall be the responsibility of owners of lots,
vacant or otherwise, to keep, said lots, and all easement areas encompassed
within the exterior boundaries of said lot, clear of trash, unused building
and/or landscaping materials, rubbish or noxious materials.
11. No neon arc lamps or mercury lights shall be
permitted. No unshaded flood lights shall be maintained which cause light to
shine directly onto the property or into the home of any other resident in the
subdivision. All exterior lighting shall be maintained and installed to
minimize light pollution.
12. Garage Doors: Garage doors shall be kept closed at all
times except when in immediate use.
13. No building or structure within the subdivision shall
be permitted to fall into disrepair, and each such building or structure shall
at all times be kept in good condition and repair and adequately painted or
otherwise finished. Such duty to repair shall include the maintenance of any
exterior structures and finish which was included in the plans approved by the
Committee.
14. In order to preserve the natural views of the
subdivision pitched roofs are not recommended, and must be approved by the
Architectural Control Committee.
15. Houses will be restricted to a minimum of 2,000 square
feet on all lots with the exception of Lots #5, 6, 7, 8, 9, 11, 12, 13, 14, 15,
16. These lots will be restricted to a minimum of 1,800 square feet.
No delay or omission on the
part of the undersigned, its successors or assigns, the Committee, the
Association or of the owners of other lots in said subdivision having the 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, nor shall any action
be brought or maintained by anyone whatsoever against the undersigned, its
successors or assigns, the Committee or the Association for, or on account of,
failure or neglect to exercise any right, power or remedy herein provided for
in the event of breach of said covenants, restrictions, or reservations.
Signatures on file in the
SHHA office.