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HomeMy WebLinkAboutPlat Covenants & Restrictions ,• 1 PLAT COVENANTS AND RESTRICTIONS AVIAN GLEN SECTION 5 The undersigned, AVIAN GLEN ASSOCIATES, L.P. , an Indiana limited partnership (the "Developer") , is the Owner of the real estate more specifically described in Exhibit "A" attached hereto (the "Real Estate") . The Developer is concurrently platting and subdividing the Real Estate as shown on the plat for Avian Glen, Section 5, which is filed of record , 1993, in the office of the Recorder of Hamilton County, Indiana (the "Plat") and desires in the Plat to subject the Real Estate to the provi- sions of these Plat Covenants and Restrictions . The subdivision created by the Plat (the "Subdivision" ) is to be known and desig- nated as "Avian Glen" . In addition to the covenants and restric- tions hereinafter set forth, the Real Estate is also subject to those covenants and restrictions contained in the Declaration of Covenants, Conditions and Restrictions of Avian Glen, dated September 21, 1992 and recorded on September 22, 1992 as Instru- ment No. 92-36482, in the office of the Recorder of Hamilton County, Indiana, as the same may be amended or supplemented from time to time as therein provided (the "Declaration") , and to the rights, powers, duties and obligations of the Avian Glen Communi- ty Association, Inc. (the "Association") , set forth in the Decla- ration. If there is any irreconcilable conflict between any of the covenants and restrictions contained herein and any of the covenants and restrictions contained in the Declaration, the covenants and restrictions contained in the Declaration shall govern and control, but only to the extent of the irreconcilable conflict, it being the intent hereof that all covenants and restrictions contained herein shall be applicable to the Real Estate to the fullest extent possible. Capitalized terms used herein shall have the same meaning as given in the Declaration. 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" . Developer 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 television services. The Drainage Easements are hereby created and reserved for (i) the use of Developer during the "Development Period" (as such term is defined in the Declaration) for access to and installation, repair or removal of a drainage system, either by surface drainage or appropriate underground installations, for the Real Estate and adjoining property and (ii) the use of the Associa- tion and the Board of Public Works of the City of Carmel for access to and maintenance, repair and replacement of such drain- age 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 and prior written approval of the Develop- er. The Sewer Easements are hereby created and reserved for the use of the Board of Public Works and, during the Development Period, for the use of Developer for access to and installation, repair, removal replacement or maintenance of an underground storm 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 installed by Developer or installed as provided above, no structures or improvements, including without limitation decks, patios, or walkways, shall be erected or maintained upon said easements . 4. LANDSCAPE EASEMENTS. There are areas of ground on the plat marked "Landscape Easements" which are hereby created and reserved: (i) for the use of the Developer during the Develop- ment Period for access to and the installation, maintenance and replacement of foliage, landscaping, screening materials and other improvements and (ii) for the use of the Association for access to and the installation, maintenance and replacement of foliage, landscaping, screening materials and other improvements . Except as installed by Developer or installed and maintained by the Association or with the prior written consent of the Archi- tectural Review Committee, no structure or improvements, main- tained in or upon said Landscape Easements. 5 . ACCESS EASEMENTS. There are areas of ground on the plat -2- marked "Access Easements" . Such Access Easements are hereby created and reserved as non-exclusive easements in favor of each Owner for pedestrian access via sidewalk or other constructed pathway to Cherry "Tree Elementary School . 6 . BUILDING LOCATION - FRONT, BACK AND SIDE YARD REQUIRE- MENTS. 3uilding 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) of a 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 otherwise shown on the Plat, the minimum 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 Developer 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 g\shall be thirty (30) feet. 7 . RESIDENTIAL UNIT SIZE AND OTHER REQUIREMENTS . No resi- dence constructed on a Lot shall have less than Nineteen Hundred (1900) square feet of total floor area, exclusive of garages, 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 one thousand (1000) square feet, with an aggregate of not less than twenty-two hundred (2200) 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. 8. RESIDENTIAL UNIT USE. All Lots in the Subdivision shall be used solely for residential purposes . No business building shall be erected on any lot, and no business may be conducted on any part thereof. No building shall be erected, placed or per- mitted to remain on any Lot other than one detached single-family residence not to exceed two and a half (2 1/2) stories in height and permanently attached residential accessory buildings . Any garage, tool shed, storage building or any other attached build- ing erected or used as an accessory building to a residence shall be of a permanent type of construction and shall conform to the general architecture and appearance of such residence . 9 . 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 the Developer or by a builder during the construction of a residential building on the property, which temporary construction structures shall ha removed upon completion of construction of the Subdivision or building, as the case may be . -3- 10. TEMPORARY RESIDENCE. No trailer, camper, motor home, truck, shack, tent, boat, recreational vehicle, basement, 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. 11 . NUISANCES. No domestic animals raised for commercial purposes and no farm animals or fowl shall be kept or permitted on any Lot. No noxious, unlawful or otherwise offensive activity shall be carried out on any Lot, nor shall anything be done thereon which may be or may become a serious annoyance or nui- sance to the neighborhood. 12 . VEHICLE PARKING. No camper, motor home, truck, trailer, boat, snowmobile or other recreational vehicle of any kind may be stored on any Lot 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 vehi- cles shall not be allowed to remain in open public view. 13 . SIGNS. No sign of any kind shall be displayed to the public view on any Lot, except that one sign of not more than six (6) square feet may be displayed at any time for the purpose of advertising a property for sale, and except that Developer and its affiliates and designees may use larger signs during the sale and development of the Subdivision. 14 . MAILBOXES. All mailboxes and replacement mailboxes shall be uniform and shall conform to the standards set forth by the Architectural Review Committee. 15 . 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 forms of general or common trash accumulation except to facilitate development and house construc- tion. No Lot shall be used or maintained as a dumping ground for trash. Rubbish, garbage and other waste shall be kept in sani- tary containers . All 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 burn or bury any garbage or refuse. All garbage, trash cans and receptacles and woodpiles shall be screened. 16 . STORAGE TANKS. No gas, oil or other storage tanks shall be installed on any Lot. 17 . WATER SUPPLY AND SEWAGE SYSTEMS. No private or semi- private 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 -4- purposes shall be permitted by these restrictions if otherwise permitted by law and rules and regulations governing the con- struction or use thereof, however, all proposed uses of geother- mal water systems must initially receive approval from the Archi- tectural Committee before being allowed to be constructed. Geothermal heat pumps shall be of the closed loop type only. 18. 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, storm sewer or lake. No drains shall be discharges directly to the ground surface. 19 . GARAGES/DRIVEWAYS. Each driveway in the Subdivision shall be of concrete or asphalt material and shall be subject to the approval of the Architectural Review Committee. All garages opening to the street shall have automatic controls. 20. ANTENNA AND SATELLITE DISHES. No outside antennas or satellite dishes shall be permitted in the Subdivision. 21 . AWNINGS. No metal, fiberglass, canvas or similar type material awnings or patio covers shall be permitted in the Subdi- vision. 22 . 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 wooden or black vinyl coated chain link and shall not be higher than six (6) feet. Uncoated chain link fencing is prohibited. No fencing shall extend forward of the furthest back front corner of the residence. All fencing style, color, location and height shall be generally consistent within the Subdivision and shall be subject to prior written approval of the Architectural Review Committee. 23 . SWIMMING POOLS. No above-ground swimming pools shall permitted in the Subdivision. 24 . SOLAR PANELS. No solar heat panels shall be permitted on roofs of any structures in the Subdivision. All such panels shall be enclosed within fenced areas and shall be concealed from the view of neighboring Lots, common areas and the streets . 25 . OUTSIDE LIGHTING. Except as otherwise approved by the Developer, all outside lighting contained in or with respect to the Subdivision shall be of an ornamental nature compatible with the architecture of the project and shall provide for projection of light so as not to create a glare, distraction or nuisance to -5- other property owners in the vicinity of or adjacent to the project. All lot owners shall be required to have installed at least one gas or electric "dusk to dawn" yard light in the front yard. Such lights are to be installed by the Developer or Build- er prior to final inspection by the Carmel Department of Communi- ty Development. Al garages opening to the street shall have automatic door controls . 26 . 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 permit- ted to remain on any corner lot within the triangular area formed 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 corner, from the intersection of the street lines extended. The same sight-line limitations 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. 27 . 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 (1) 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 be kept and maintained in a sightly and orderly manner and no trash or other rubbish shall be permitted to accumu- late unreasonably on any such lot. 28. VIOLATION. Violation or threatened violation of these covenants and restrictions shall be grounds for an action by the Developer, 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 vio- lating or threatening to violate any such covenants or restric- tions . Available relief in any such action shall include recov- ery 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 restric- tions; provided, however, that neither the Developer nor the Association shall be liable for damages of any kind to any person for failing to enforce such covenants or restrictions . 29 . CARMEL PLANNING COMMISSION. The Carmel Planning Commis- sion, its successors and assigns shall have no right, power or authority to enforce any covenants, restrictions or other limi- -6- tations contained herein other than those covenants, restrictions or limitations that expressly run in favor of the Carmel Planning Commission; provided that nothing herein shall be construed to prevent the Carmel Planning Commission from enforcing any provi- sions of the Subdivision Control Ordinance, as amended, or any conditions attached to approval of the Plat by the Plat Commit- tee. 30. 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 in all Subdivisions which are now or hereafter made subject to and annexed to the Declaration; provid- ed, however, that until all of the Lots in such Subdivisions have been sold by Developer, any such amendment shall require the prior written approval of Developer. Each such amendment shall be evidenced by a written instrument, signed by the Owner or Owners concurring therein, 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 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. 31 . 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, until Decem- ber 31, 2012, and thereafter they shall continue automatically in effect unless terminated by a vote of a majority of the then Owners of the Lots in the Subdivision; provided, however, that no termination of said these covenants and restrictions shall affect any easement hereby created and reserved unless all persons entitled to the beneficial use of such easement shall have con- sented thereto in writing. 32 . 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. -7- t IN WITNESS WHEREOF, the undersigned Developer, as the owner of the Real Estate, has hereunto caused its name to be subscribed this day of , 1993 . Avian Glen Association, L.P. By: Davis Development, L.P. By: Davis Development, Inc. By: C. Richard Davis President STATE OF INDIANA ) )SS: COUNTY OF MARION ) Before me, a Notary Public in and for the State of Indiana, personally appeared C. Richard Davis, the President of Davis Development, Inc. , an Indiana corporation, and acknowledged the execution of this instrument as his voluntary act and deed as such officer on behalf of such corporation for the uses and purposes hereinabove set forth. Witness my signature and Notarial Seal this day of , 1993 . Notary Public Printed My commission expires: I am a resident of County, Indiana. This instrument was prepared by C. Richard Davis, President of Davis Development, Inc. , 8250 Haverstick Road, Suite 290, Indian- apolis, Indiana 46240 (317) 259-6217 . -8- AVIAN GLEN SECTION 5 LAND DESCRIPTION Part of the Southeast Quarter of Section 21, Township 18 North, Range 4 East in Hamilton County, Indiana, more particularly described as follows: Beginning at the Southwest corner of said Southeast Quarter Section; thence along the West line thereof, North 00 degrees 22 minutes 37 seconds West (assumed bearing) 793.36 feet; thence North 89 degrees 50 minutes 35 seconds East 192.91 feet to a point on a curve having a radius of 225.00 feet, the radius point of which bears North 89 degrees 50 minutes 35 seconds East; thence Southerly along said curve, 8.28 feet to a point which bears South 87 degrees 44 minutes 00 seconds West from said radius point; thence North 89 degrees 50 minutes 35 seconds East 144.85 feet; thence North 00 degrees 09 minutes 25 seconds West 359.96 feet; thence South 89 degrees 55 minutes 27 seconds East 147.92 feet; thence South 76 degrees 57 minutes 37 seconds East 50.00 feet to a point on a curve having a radius of 250.00 feet, the radius point of which bears South 76 degrees 57 minutes 37 seconds East; thence Southerly along said curve, 23.49 feet to a point which bears North 82 de.jrees 20 minutes 40 seconds West from said radius point; thence South 82 degrees 20 minutes 40 seconds East 150.00 feet; thence North 40 degrees 37 minutes 20 seconds East 133.20 feet; thence North 67 degrees 35 minutes 10 Seconds East 120.00 feet; thence North 70 degrees 42 minutes 55 seconds East 120.74 feet; thence North 27 degrees 15 minutes 46 seconds West 146.61 feet; thence North 67 degrees 35 minutes 10 seconds East 34.63 feet; thence North 22 degrees 24 minutes 50 seconds West 50.00 feet; thence North 67 degrees 35 minutes 10 seconds East 40.35 feet to a curve having a radius of 225.00 feet; the radius point of which bears North 22 degrees 24 minutes 50 seconds West; thence Northeasterly and Northerly along said curve, 266.03 feet to a point which bears North 89 degrees 50 minutes 35 seconds East from said radius point; thence North 00 degrees 09 minutes 25 seconds West 331.41 feet; thence North 89 degrees 50 minutes 35 seconds East 220.00 feet to a point on the East line of the West Half of said Southeast Quarter Section; thence along said East line, South 00 degrees 09 minutes 25 seconds East 703.30 feet to the Northwest corner of the Southeast Quarter Section; thence along the North line of said Quarter Quarter Section, North 89 degrees 59 minutes 13 seconds East 747.66 feet to the Northwesterly corner of Avian Glen Section Four, the Secondary Plat of which was recorded 1993 as Instrument in the Office of the Recorder of Hamilton County, Indiana (the next four courses are along the Westerly boundary of said Avian Glen Section Four); (1) thence South 00 degrees 09 minutes 25 seconds East 153.86 feet to a point on a curve having a radius of 200.00 feet, the radius point of which bears South 18 degrees 42 minutes 14 seconds West; (2) thence Westerly along said curve, 65.84 feet to a point which bears North 00 degrees 09 minutes 25 seconds West from said radius point; (3) thence South 00 degrees 09 minutes 25 seconds East 50.00 feet; (4) thence South 14 degrees 28 minutes 53 sec- onds West 149.86 feet to a point on the Northerly boundary of Avian Glen Section Three, the Secondary Plat of which was record- ed September 22, 1992 as Instrument 9236486 in said Recorder's Office (the next 22 courses are along the Northerly and Westerly boundary of said Avian Glen Section Three); (1) thence South 89 degrees 50 minutes 35 seconds West 219.67 feet; (2) thence South 75 degrees 48 minutes 24 seconds West 123.69 feet; (3) thence South 89 degrees 50 minutes 35 seconds West 365.20 feet; (4) thence South 80 degrees 28 minutes 44 seconds West 66.75 feet; (5) thence South 60 degrees 15 minutes 03 seconds West 54.25 feet; (6) thence South 77 degrees 05 minutes 40 seconds West 121.66 feet; (7) thence South 86 degrees 33 minutes 25 seconds West 240.00 feet; (8) thence North 45 degrees 02 minutes 58 seconds West 55.00 feet; (9) thence South 34 degrees 00 minutes 39 seconds West 183.19 feet to a point on a curve having a radius of 250.00 feet, the radius point of which bears North 27 degrees 33 minutes 13 seconds East; (10) thence Westerly along said curve, 22.14 feet to a point which bears South 32 degrees 37 minutes 40 seconds West from said radius point; (11) thence South 32 degrees 37 minutes 40 seconds West 50.00 feet to a point on a curve having a radius of 20.00 feet, the radius point of which bears South 32 degrees 37 minutes 40 seconds West; (12) thence Southeasterly and Southerly along said curve, 35.92 feet to a point which bears South 44 degrees 27 minutes 56 seconds East from said radius point; (13) thence South 44 degrees 27 minutes 56 seconds East 50.00 feet to a point on a curve having a radius of 200.00 feet, the radius point of which bears North 44 degrees 27 minutes 56 seconds West; (14) thence Northeasterly along said curve, 31.13 feet to a point which bears South 53 degrees 23 minutes 04 seconds East from said radius point, and which point is on a reverse curve having a radius of 20.00 feet, the radius point of which bears South 53 degrees 23 minutes 04 seconds East; (15) thence Northeasterly along said curve, 11.53 feet to a point which bears North 20 degrees 21 minutes 24 seconds West from said radius point; (16) thence South 00 degrees 09 minutes 25 seconds East 201.16 feet; (17) thence South 79 degrees 25 minutes 29 seconds West 122.01 feet; (18) thence South 83 degrees 23 minutes 56 seconds West 120.76 feet; (19) thence South 89 degrees 50 minutes 35 seconds West 110.00 feet; (20) thence South 00 degrees 53 minutes 13 seconds West 139.68 feet; (21) thence South 32 degrees 51 minutes 12 seconds East 77.01 feet; (22) thence South 10 degrees 17 minutes 16 seconds West 252.28 feet to the South- westerly corner of said Avian Glen Section Three, which point is on the South line of said Southeast Quarter Section; thence along said South line, South 89 degrees 59 minutes 39 seconds West 323.42 feet to the Point of Beginning, containing 26.966 acres, more or less.