HomeMy WebLinkAboutAvian Glen Amended and Restated Plat Covenants recorded 10-6-162016052430 AMND DECL $58.00
10/06/2016 09:33:40A 15 PGS
Jennifer Hayden
HAMILTON Counly Recorder IN
Recorded as Presented
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Cross References: 2016009623; 92-36482; 92-36483; 92-36485; 93-24083;
93-24084; 93-43916; 93-43917; 94-28545; 94-28546; 94-36275; 94-36276;
94-36277; 95-51403; 95-51404; 95-51405; 95-51406; 9809841366; 199909962328
AMENDED AND RESTATED PLAT COVENANTS
AND RESTRICTIONS OF A VIAN GLEN
These Amended and Restated Plat Covenants and Restrictions of Avian Glen were
executed as of the date set forth below.
WITNESS ETH:
WHEREAS, the Avian Glen subdivision located in Hamilton County was established by
a certain "Declaration of Covenants, Conditions and Restrictions of Avian Glen" which was
recorded on September 22, 1992, as Instrument No. 92-36482 in the Office of the Recorder of
Hamilton County, Indiana, said Declaration being subsequently replaced by the "Amended &
Restated Declaration of Covenants, Conditions & Restrictions of Avian Glen" which was
recorded on March 3, 2016, as Instrument No. 2016009623 in the Office of the Recorder of
Hamilton County, Indiana, together with certain Supplements (hereafter collectively referred to
as the "Declaration"; and
WHEREAS, Plats filed with the Office of the Recorder of Hamilton County, Indiana
established two hundred twenty-one (221) Lots and Common Areas comprising the Avian Glen
subdivision; and ·
WHEREAS, at the same time the Plats were filed with the Hamilton County Recorder,
certain Plat Covenants and Restrictions were also recorded which subjected the Lots within the
various sections of Avian Glen to the terms and conditions of said Plat Covenants and
Restrictions, in addition to the terms and conditions of the Declaration; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 1 were filed
with the Office of the Recorder of Hamilton County, Indiana on August 19, 1994, as Instrument
No. 94-36276; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 2 were filed
with the Office of the Recorder of Hamilton County, Indiana on September 22, 1992, as
Instrument No. 92-36483; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 3 were filed
with the Office of the Recorder of Hamilton County, Indiana on September 22, 1992, as
Instrument No. 92-36485; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 4 were filed
with the Office of the Recorder of Hamilton County, Indiana on May 20, 1993, as Instrument
No. 93-24084; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 5 were filed
with the Office of the Recorder of Hamilton County, Indiana on September 10, 1993, as
Instrument No. 93-43917; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 6 were filed
with the Office of the Recorder of Hamilton County, Indiana on June 27, 1994, as Instrument
No. 94-28546; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 7 were filed
with the Office of the Recorder of Hamilton County, Indiana on August 19, 1994, as Instrument
No. 94-36277; and
WHEREAS, the Plat Covenants described above were subsequently amended, including
the "Amendments to Plat Covenants and Restrictions of Avian Glen" recorded in the Office of
the Recorder of Hamilton County, Indiana on July 29, 1998 as Instrument No. 9809841366; and
WHEREAS, said Plat Covenants and Restrictions, as amended, state that the terms
thereof may be amended at any time by the then owners of at least sixty-seven percent ( 67%) of
the Lots; and
· ...
WHEREAS, the Owners holding more than the sixty-seven percent ( 67%) in the
aggregate of the votes of all Owners voted to approve these Amended and Restated Plat
Covenants and Restrictions of Avian Glen at a duly-constituted meeting of the Owners on
November 15, 2010; and
WHEREAS, although these Amended and Restated Plat Covenants and Restrictions of
Avian Glen were approved at a meeting of the Owners on November 15, 2010, they were not
duly recorded; and
WHEREAS, the ratification of four current Owners to the votes of approval for these
Amended and Restated Plat Covenants by their predecessors in interest has been obtained and
are maintained in the official records of the Avian Glen Community Association, Inc.; and
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WHEREAS, the remainder of the Owners holding more than sixty-seven percent ( 67%)
in the aggregate of the votes of all Owners are titled Owners of Lots in Avian Glen; and
WHEREAS, the Owners of said Lots desire to amend and restate the Plat Covenants and
Restrictions pursuant to the terms and conditions below upon the authority set forth in foregoing
recitals.
NOW, THEREFORE, the Plat Covenants and Restrictions which are applicable to all
Owners and residents within all Sections of Avian Glen are hereby amended and restated as
follows. All provisions of the original Plat Covenants and any amendments thereto are hereby
modified in their entirety, and superseded by these Amended and Restated Plat Covenants and
Restrictions of Avian Glen.
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PLAT COVENANTS AND RESTRICTIONS OF A VIAN OLEN
In order to provide adequate protection to all present and future Owners of Lots or
Residence Units in the Subdivision, the following covenants and restrictions, in addition
to those set forth in the Declaration, are hereby imposed upon the Real Estate:
1. PUBLIC RIGHT OF WAY. The rights-of-way of the streets as shown on
the Plat, if not heretofore dedicated to the public, are hereby dedicated to the public for
use as a public right-of-way.
2. COMMON AREAS. There are areas of ground on the Plat marked
"Common Area". The Association hereby declares, creates and grants a non-exclusive
easement in favor of each Owner for the use and enjoyment of the Common Areas,
subject to the conditions and restrictions contained in the Declaration.
3. UTILITY, DRAINAGE AND SEWER EASEMENTS. There are areas of
ground on the Plat marked "Utility Easements, Drainage Easements and Sewer
Easements", either separately or in combination. The Utility Easements are hereby
created and reserved for the use of all public utility companies (not including
transportation companies), governmental agencies and the Association for access to and
installation, maintenance, repair or removal of poles~ mains, ducts, drains, lines, wires,
cables and-other equipment and facilities for the furnishing of utility services, including
cable services. The Drainage E~ements are hereby created and reserved for the use of
the Association and the Board of Public Works of the City of Cannel for access to and
maintenance, repair and replacement of such drainage system. The owner of any Lot in
the Subdivision subject to a Drainage Easement, including any builder, shall be required
to keep the portion of said Drainage Easement on his Lot free from obstructions so that
the storm water drainage will be unimpeded and will not be changed or altered without a
permit from the Board of Public Works. The Sewer Easements are hereby created and
reserved for the use of the Board of Public Works for access to and installation, repair,
removal replacement or maintenance of an underground stonn and sanitary sewer system.
The delineation of the Utility, Drainage and Sewer Easement areas on the Plat shall not
be deemed a limitation on the rights of any entity for whose use any such easement is
created and reserved to go on any Lot subject to such easement temporarily to the extent
reasonably necessary for the exercise of the rights granted to it by this Paragraph 3.
Except as provided above, no structures or improvements, including without limitation
decks, patios, or walkways, shall be erected or maintained upon said easements.
4. BUILDING LOCATION -FRONT. BACK AND SIDE YARD
REQUIREMENTS. Building lines are established on the Plat. No building shall be
erected or maintained between said setback lines and the front, rear or side lot line (as the
case may be) ofa Lot The setback lines may vary in depth in excess of the minimum as
designated on the Plat. The minimum front yard set back shall be forty ( 40) feet Except
as otheawise shown on the Plat, the minim um rear yard setback shall be twenty (20) feet.
The minimum side yard set back shall be fifteen (15) feet, provided that with the prior
consent of the Board of Directors such side yard set back may be reduced to less than
fifteen ( 15) feet but in no event to less than ten ( 10) feet In any case, the minimum
aggregate side yard between residences shall be thirty (30) feet.
5. RESIDENTIAL UNIT SIZE AND OTHER REQUIREMENTS. No
-residence constructed on a Lot shall have less than twenty-one hundred (2100) square
feet of total floor area, exclusive of g~rages, carports and open porches in the case of one
story structure. · The minimum main (first floor) living area of any building higher than
one story shall be thirteen hundred E 1300) square feet, with an aggregate of not less than
twenty-three hundred (2300) square feet. Each residence Unit shall include an attached
two-car ( or larger) enclosed garage.
The maximum height of any residential dwelling constructed on a lot shall be
twenty-five (25) feet measured from finished grade to the underside of the eave line. All
lots shall be landscaped with a minimum of two trees in the front yard consistent with
easement and other covenant restrictions.
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6. RESIDENTIAL UNIT USE. All Lots in the Subdivision shall be used
solely for single family residential purposes. A home office may be pennitted if it
satisfies the following: a) the business conducted is by a member of the immediate family
in said residence, b) the business use is incidental and secondary to the use of the
residence for dwelling purposes, c) does not change the character of the lot or home
structure, d) there is no signage to indicate that the residence is being utilized for a
business purpose, e) goods are not regularly sold on said premises, t) manufacturing or
assembly operations are not conducted on said property. The following occupations or
similar activities will not be permitted as a home occupation: child day care, automobile
repair/maintenance, barber shop/hair salon, animal hospital, or any other type of
occupation that increases either pedestrian or traffic flow into the Avian Glen
subdivision.
No business building shall be erected on any lot, and no business may be conducted on
any part thereo£ No building shall be erected, placed or pea:mitted to remain on any Lot
other than one· detached single-family residence not to exceed two and a h~lf (2 1/2)
· stories in height and penrianently atta~hed residential accessory buildings (e.g. garage).
Any additions to a residence must be permanently attached to said structure and
constructed to maintain architectural consistency of said residence and that of the Avian
Glen subdivision, in accordance with local building regulations. Any changes to the
building or lot must receive written approval by the Architectural Review Committee.
Storage sheds are not permitted in Avian Glen.
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7. ACCESSORY AND TEMPORARY BUILDINGS. No trailers, shacks,
outhouses or detached or unenclosed storage sheds, tool sheds or accessory buildings of
any kind shall be erected or situated on any Lot in the Subdivision, except that used by a
builder during the construction of a residential building on the property, which temporary
construction structures shall be removed upon completion of construction of the building,
as the case may be.
8. TEMPORARY RESIDENCE. No trailer, camper, motor home, truck,
shack, tent, boat, recreational vehicle, garage or outbuilding may be used at any time as a
residence, temporary or permanent; nor may any structure of a temporary character be
used as a residence.
9. NUISANCES. No domestic animals raised for commercial purposes and
no fann animals or fowl shall be kept or pennitted on any Lot, pond, or common area. No
animals shall be kept or maintained on any lot except the usual household pets and, in
such case, such household pets shall be kept reasonably confined so as not to become a
nuisance. Excessive barking of a dog(s) or the possession of a vicious animal (as defined
by Cannel city code) shall constitute a nuisance and may be ordered removed. No
noxious, unlawful, loud or otherwise offensive activity shall be carried out on.any lot, nor
. shall anythin·g be done thereon which may be or may become a serious annoyance or
nuisance to the neighborhood.
10. VEHICLE PARKING. No camper, motor home, truck, trailer, boat,
snowmobile other recreational vehicle of any kind may be stored on any Lot or common
area in open public view. No vehicles of any kind may be put up on blocks or jacks to
accommodate car repair on a Lot unless such repairs are done in the garage. Disabled or
unused vehicles shall not be allowed to remain in open public view. No motor vehicle
shall be parked anywhere but on the street or paved driveway, or in the garage.
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11. SIGNS. Signs may be displayed to the public view on any Lot, with the
following restrictions.
(a) No sign shall be larger than ten (10) square feet; the number of signs must be
reasonable for a residential sub-division; signs may only be displayed for up to thirty (30)
days before the event being promoted; and signs must be removed no later than five (5)
days after such event has been completed.
(b) Signs advertising the sale of the residential lot may be displayed until the
property is sold, and signs and banners promoting school activities may be displayed as
long as the activity is in progress.
(c) Signs may only be displayed in common areas with approval of the Board.
The Board may remove any sign that is in violation of this Section 11, and may grant
variances to the requirements of this Section.
12. MAILBOXES. All mailboxes and replacement mailboxes shall be unifonn
and shall confonn to the standards set forth by the Architectural Review Committee.
13. GARBAGE AND REFUSE DISPOSAL. Trash and refuse disposal will
be on an individual basis, lot by lot. The community shall not contain dumpsters or other
fonns of general or common trash accumulation except to facilitate development and
house construction. No· Lot shall be used or maintained as a dumping ground for trash.
Rubbish, garbage and other waste shall be kept in sanitary containers. All containers and
equipment for storage or disposal of such materials shall be kept clean and shall not be
stored on any Lot in open public view. No rubbish, garbage or other waste shall be
allowed to accumulate on any Lot No homeowner or occupant of a Lot shall bum or
bury any garbage or refuse. All garbage, trash cans and receptacles and woodpiles shall
be screened from open view.
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14.
on any Lot.
STORAGE TANKS. No gas, oil or other storage tanks shall be installed
15. WATER SUPPLY AND SEWAGE SYSTEMS. No private or
semiprivate water supply or sewage disposal system may be located upon any Lot. No
septic tank, absorption field or similar method of sewage disposal shall be located or
constructed on any Lot. Individual water systems installed for ancillary or auxiliary
purposes shall be permitted by these restrictions if otherwise permitted by law and rules
and regulations governing the construction or use thereof; however, all proposed uses of
geothermal water systems must initially receive approval from the Architectural Review
Committee before being allowed to be constructed.
16. DITCHES AND SWALES. All owners, including builders, shall keep
unobstructed and in good maintenance and repair all open storm water drainage ditches
and swales which may be located on their respective Lots. All sump pump discharges
shall be connected to a subsurface drain, stonn sewer or lake. No drains shall be
discharged directly to the ground surface.
17. GARAGES/DRIVEWAYS/SIDEWALKS. Each driveway and sidewalk
in the Subdivision shall be of concrete material and shall be subject to the approval of the
Architectural Review Committee. All garages opening to the street shall have automatic . . ·~ .
controls.
18. ANTENNA AND SATELLITE DISHES. No outside antennas shall be
permitted in the Subdivision except outdoor satellite dishes. Notwithstanding anything
contained in the Plat, the Declaration or elsewhere to the contrary, outdoor satellite dishes
shall be permitted in the Subdivision; provided, however, that: (a) the diameter of the
satellite dish shall be no more than twenty-four inches (24"), (b) only one (1) satellite
dish shall be permitted on each Lot, (c) the Architectural Review Committee shall have
first determined that the satellite dish is appropriately placed and properly screened in
order to preserve property values and maintain a harmonious and compatible relationship
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among the houses in the Subdivision, and ( d) the Architectural Review Committee shall
have first expressly approved the same in writing.
19. AWNINGS. No permanent metal, wood, fiberglass, canvas or similar type
material awnings or patio covers shall be permitted in the Subdivision without the
approval of the Architectural Review Committee.
20. FENCING. No fence shall be erected on or along any Lot line, nor on any
Lot, the purposes or result of which will be to obstruct reasonable vision, light or air. All
fences shall be kept in good repair and erected so as to enclose the property and decorate
the same without unreasonable hindrance or obstruction to any other property. Any
fencing permitted to be used in the Subdivision must be brick, ornamental metal, treated
wood or other material approved by the Architectural Review Committee, and must not
be higher than six feet (6') from ground level. The Architectural Review Committee may
restrict the height of new fencing to lower than six (6) feet to preserve the aesthetics of
the particular area of the neighborhood. Fencing in rear or side yard areas of lake lots,
however, should generally not exceed forty-two inches (42") in height and should be of
ornamental metal material. The Architectural Review Committee will focus carefully on
any fencing proposed to be located near the neighborho9d's perimeter (which may be of
the stockade/solid privacy variety to match existing fencing) or main entrances to ensure
that the neighborhood-' s appearance from streets is not adversely affected. All fencing
style, color, location and height shall be generally consistent within_ th_e Subdiyision and
shall be subject to prior written approval of the Architectural Review Committee. In no
event will any stockade/solid privacy (except for perimeter fencing), horizontal wood,
chain link, wire, or solid aluminum fences be permitted in any part of the neighborhood.
No fencing may extend forward of the furthest forward back comer of a residence.
21. SWIMMING POOLS. No above-ground swimming pools shall be
permitted in the Subdivision. Access to pools shall be restricted in a manner consistent
with Indiana state law.
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22. SOLAR PANELS. Solar heat panels may be pennitted on Lots upon
approval of the Architectural Review Committee.
23. OUTSIDE LIGHTING. All outside lighting contained in or with respect
to the Subdivision shall be of an ornamental nature compatible with the architecture of
the neighborhood and subject to the approval of the Architectural Review Committee,
and shall provide for projection of light so as not to create a glare, distraction or nuisance
to other property owners in the vicinity of or adjacent to the property. All lot owners
shall be required to have installed at least one gas or electric "dusk to dawn" yard light in
the front yard, and shall maintain such light(s) so that they are operational and visible
from the street.
24. SITE OBSTRUCTIONS. No fence, wall, hedge or shrub planting which
obstructs sight lines at elevations between two (2) and nine (9) feet above the street shall
be placed or pennitted to remain on any comer lot within the triangular area fonned by
the street property lines and a line connecting points twenty-five (25) feet from the
intersection of said street lines, or in the case of a rounded property comer, from the
intersection of the street lines extended. The same sight-line limitation shall apply to any
Lot within ten ( 10) feet from the intersection of a street line with the edge of a driveway
pavement or alley line. No-tree shall be permitted to remain within such distances of
such intersections unless the foliage line is maintained at a sufficient height to prevent
obstruction of such sight lines. ·
25. BUILDING COMPLETION. Every single-family dwelling, outbuilding,
or other structure permitted to be constructed or remain on any lot shall be completed on
the exterior within one ( 1) year from the start of the construction,, including at least one
(I) coat of paint, stain or varnish on any exterior wood surfaces. All such structures must
be completed and the site graded, sodded or seeded and reasonably landscaped within one
( 1) year from the date of the commencement of construction thereof. During the period
of construction of any structure of any lot, the lot shall he kept and maintained in a
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sightly and orderly manner and no trash or other rubbish shall he permitted to accumulate
unreasonably on any such lot.
26. VIOLATIONS. Violation or threatened violation of these covenants and
restrictions shall be grounds for an action by the Association or any person or entity
having any right, title or interest in the Real Estate, and all persons or entities claiming
under them, against the person or entity violating or threatening to violate any such
covenants or restrictions. Available relief in any such action shall include recovery of
damages for such violation, injunctive relief against any such violation or threatened
violation, declaratory relief and the recovery of costs and attorneys reasonable fees
incurred by any party successfully enforcing these covenants and restrictions; provided,
however, that the Association shall not be liable for damages of any kind to any person
for failing to enforce such covenants or restrictions.
27. CARMEL PLANNING COMMISSION. The Camel Planning and Zoning
Commission, its successors and assigns shall have no right, power or authority to enforce
any covenants, restrictions or other limitations contained herein other than those
covenants, restrictions or limitations that expressly run in favor of the Cannel Planning
and Zoning Commission; provided that nothing herein shall be construed to prevent the
Carmel Planning and Zoning Commission fro~ enforcing any • provisions of the
Subdivision Control Ordinance, as amended, .or any conditions attached to approval of
the Plat by the Plat Committee.
28. AMENDMENT. These covenants and restrictions may be amended at any
time by the then owners of at least sixty-seven percent (67%) of the Lots which are now
or hereafter made subject to and annexed to the Declaration. Voting may be by written
ballot or by electronic means. Each such amendment shall be evidenced by a written
instrument, signed by the President of the Association, which instrument shall set forth
facts sufficient to indicate compliance with this paragraph and shall be recorded in the
Office of the Recorder of Hamilton County, Indiana. No amendment which adversely
affects the rights of a public utility shall be effective with respect to such public utility
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without its written consent thereto. No amendment which is contrary to a zoning
commitment shall be effective without the written approval of the affected adjacent
homeowners associations designated by the City of Carmel.
29. TERM. The foregoing Plat Covenants and Restrictions, as the same may
be amended from time to time, shall run with the land and shall be binding upon all
persons or entities from time to time having any right, title or interest in the Real Estate
and on all persons or entities claiming under them.
30. SEVERABILITY. Invalidation of any of the foregoing covenants or
restrictions by judgment or court order shall in no way affect any of the other covenants
and restrictions, which shall remain in full force and effect.
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Executed this _.1!{_ day of 5EPTEM eB?-2016.
ASSOCIATION, INC., by:
STATE OF INDIANA )
) SS:
COUNTYOF H,iw11t.:(11tJ )
Before me, a notary public, in and for said County and State, personally appeared David
Morfas and Jared Hamilton, the President and Secretary, respectively, of Avian Glen Community
Association, Inc., an Indiana nonprofit corporation, who acknowledged execution of the within
and foregoing Amended & Restated Plat Covenants and Restrictions of Avian Glen, for and on
behalf of said corporation and its members and who, being duly sworn, stated that the
representations made therein are true. Witness my hand and notarial seal this I lo day of
5~~,boc: '2016.
r'l/#4 ............ WWII~__....__..____,.__.,. 4
MELISSA LOUISE PUC;{,
• Nota,y Public. Stato n1 Inn,
. ; HamiJlon Coun1y
~. ~ My Commission Ex,,,,._.s
• March 11, 2024
My Commission Expires:
1tN: c--c_h I\ l & f
Notary Public-Signature
CG;J\;ss9 L =?.. ,hll
Printed
Residence County: \d a."<\', \ +--o k:
"I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security Number in this document, unless required by law."
P. Thomas Murray, Jr., Esq.
This instrument prepared by, and should be returned to, P. Thomas Murray, Jr., EAos MURRAY &
PUGH, P.C., Attorneys at Law, 9515 E. 59th Street, Suite B, Indianapolis, IN 46216.
Telephone: (317) 536-2565.
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