HomeMy WebLinkAboutBrighton Woods CovenantsDECLARATIO~OF COVENANTS AND RESTRICTIONS
BRIGHTON WOODS
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This Declaration (hereafter:"Declaration"), made as of the ~day of ~
199~by Raymond H. Roehling ("Declarant")
WITN ES SE TH:
2000000157%Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK On 04-06-2000 At 02:27 p ••
DEC COV RES 61.00
WHEREAS, the following facts arc true:
WHEREAS, Declarant is ~e owner ofthe real estate located in Hamilton County, Indiana,
described in Exhibit "A" (hereaJfter "Real Estate"), upon which Declarant intends to develop a
residential subdivision to be kno>Pn as Brighton Woods; and
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WHEREAS, Declarant bak or will construct certain improvements and amenities which shall
constitute Community Area; and!
WHEREAS, Declarant desires to subdivide and develop the Real Estate as may be made
subject to the terms of this Declaration, as hereinafter provided; and , ,
WHEREAS, the term "Prppertyu shall hereafter mean and refer to the Real Estate;.and
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WHEREAS, Declarant d.esires to provide for the preservation and enhancement of the
property values, amenities and opportunities in Brighton Woods and for the maintenance of the
Property and the improvements Ithereon, and to this end desires to subject the Property to the
covenants, restrictions, easement!>, charges and liens hereinafter set forth, each of which is for the
benefit of the Lots and lands in ~e Property and the future owners thereof, and
WHEREAS, Declarant d~erns it desirable, for the efficient preservation of the values and
amenities in Brighton Woods, t6 create an agency to which may be delegated and assigned the
powers ofowning, maintaining aI!d administering the Community Area, administering and enforcing
the Restrictions, collecting and (lisbursing the Assessments and charges hereinafter created, and
promoting the health, safety and ~elfare of the Owners of Lots; and
WHEREAS, Declarant w)1l incorporate under the laws ofthe State ofIndiana anot-for-profit
corporation known as Brighton Woods Homeowner's Association, Inc. for the purpose ofexercising
such functions. .
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the
Property, as they are held and sh~lI be held, conveyed, hypothecated or encumbered, leased, rented,
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used, occupied and improved. arejsubject to the following Restrictions, all of which are declared to
be in furthemnce of a plan for tbe improvement and sale of the Property and each Lot situated
therein, and are established and agreed upon for the purpose of enhancing and protecting the value,
desirability and attractiveness of (he Property as a whole and of each ofResidences, Lots and lands
situated therein. The Restrictions shall run with the land and shall be binding upon Declarant, its
respective successors and assign:s, and upon the parties having or acquiring any interest in the
Property or any part or parts therepfsubject to such Restrictions'. The Restrictions shall inure to the
benefit of Declarant and its respe~tive successors in title to the Property or any part or parts thereof.
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1. Definitions. The follo~ving terms, as used in this Declaration, unless the context clearly
requires otherwise, shall mean thi: following;
(a) "Architectmal Review Board" means that entity established pursuant to
Paragraph I 0 of this Declaration for the purposes therein stated.
(b) "Articles" m~an the Articles of Incorporation of the Corpomtion, as aroended
from time to time.
ee) "Assessments'l means all sums lawfully assessed against the Members of the
Corporation, as amended ifrom time to time.
(d) "Board of Directors" means the governing body of the Corporation elected by
the Members in accordanpe with the By-Laws.
(e) "Brighton W ~ods" means the name by which the Property shall he known.
(f) "By-Laws" means the Code of By-Laws of the Corporation, as amended from
time to time.
(g) "Common A\-ea" means any area referred to on a Plat as a Common Area.
(h) "Community Area" means (i) the Dminage System, (ii) the Entry Ways, (iii) the
Roadways to the extent not maintained by public authority, (iv) any utility service lines or
facilitics not maintained qy a public utility company or governmental agency that serve more
than on Lot, and (v) any area ofland (I) shown on the Plat as a Common Area, (2) described
in any recorded instrumimt prepared by Declarant or its agents, or (3) conveyed to or
acquired by the Corporati:on, together with all improvements thereto, that are intended to be
devoted to the use or enjoyment of some, but not necessarily all, of the Owners of Lots.
(i) "Corporation'! means Brighton Woods Homeowners Association, Inc., an Indiana
not-far-profit, its successprs and assigns.
(j) "Declarant" peans Raymond H. Roehling, his successors and assigns to his
interest in the Property other than Owners purchasing Lots or Residences by deed from
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Declarant (unless the con~eyance indicated on intent that the grantee assume the rights and
obligations of Declarant). :
(k) "Development Period" means the period oftime commencing with the execution
ofthis Declaration and en~ing when Declarant has completed tbe development and sale of,
and no longer owns, any 1\-01 or any other portion of the real estate in the Property.
(1) "Drainage B~ard" means the Hamilton County, Drdinage Board, Hamilton
County, Indiana, its succe~sors or assigns.
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(m) "Drainage Sv\;tem" means the open drainage ditches and swales, the subsurface
drainage tiles, pipes and stiructures, the dry and wet retention and/or detention areas, and the
other structures, fixtures'iproperties, equipment and facilities located in the Property and
designed for the purpose ~f controlling, retaining or expediting the drainage of surface and
subsurface waters from, </lver and across the Property, including but not limited to those ,
shown or referred to on ~he Plat, all or part of which may be established as legal drains
subject to the jurisdiction!ofthe Drainage Board.
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(n) "Entry Way~" means the structures constructed as an entrance to Brighton
Woods or a part thereof (<\xclusive of the street pavement, curbs and drainage structures and
tiles), the truffic island, if any, and the grassy area surrounding such structures, whether
located within or withoutithe Property.
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(0) "Landscaping~asement" means a portion ofa Lot denoted on the Plat as an area
to be landscaped and maiptained by the Corporation. ,
(P) "Lot" means ~ platted lot as shown on the Plat,
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(q) "Lot Developbent Plan" means (i) a site plan prepared by a licensed engineer or
architect, (ii) foundation plan and proposed finished floor elevations, (iii) building plans,
including elevation and floor plans, (iv) material plans and specifications, (v) landscaping
plan, and (vi) all other dat!a or information that the Architectural Review Board may request
with respect to the imp~vement or alteration of a Lot (including but not limited to the
landscaping thereof) or the construction or alteration of a Residence or other structure or,
improvement thereon. I
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(r) "Maintenancd Costs" means all of the costs necessary to keep the facilities to
which the term applies operational and in good condition, including but not limited to the
cost of all upkeep, maintlmance, repair, replacement of all or any part of any such facility,
payment of all insurance!with respect thereto. all taxes imposed on the facility and on the
underlying land, leasehold, easement or right-of-way, and any other expense related to the
continuous maintenance,joperation or improvement of the facility.
(8) "Member" means a Class A or Class B member of the Corporation and
"Members" means ClasslA and Class B members of the Corporation. ,
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(t) "Mortgagee" means the holder of a first mortgage on a residence,
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(u) "Owner" mdans a Person, including Declarant, who at the time has or is
acquiring any interest, in a Lot except a Person who has or is acquiring such an interest
merely as security for the performance of an obligation,
(v) "Person" mean!; an individual, firm, corporation, partnership, association, trust or
other legal entity, or any cPmbination thereof.
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(w) "Plat" means t~e final secondary plat ofthe Property recorded in the Office ofthe
Recorder of Hamilton COVnty, Indiana.
(x) "Reserve for "Replacements" means a fund established and maintained by the
Corporation to meet the cbst of periodic maintenance, repairs, renewal and replacement of
the Community Area. ;
(y) ..Residence" mpans any structure intended exclusively for occupancy by a single
family together with all appurtenances thereto, including private garage and outbuildings and
recreational facilities uswll and incidental to the use of a singe family residential lot.
(z) "Restrictions": means the covenants, conditions, easements, charges, liens,
restrictions, rules and regqlations and all other provisions set fbrth in this Declaration and the
Register of Regulations, ~s the same may from time to time be amended.,
(aa) "Register of Regulations" means the document containing rules, regulations,
policies, and procedures adopted by the Board of Directors or the Architectural Review
Board, as the same may nom time to time be amended.
(bb) "Roadway" means all or any part ofa street, land or road (including the right-of
way) designated to a provide access to one or more Lots which has not been accepted for
maintenance by a public ,}uthority.
(cc) "Zoning Authority" with respect to any action means the Director of the
Department of Communi!:y Development of the City of Carmel, Indiana or, where he lacks
the capacity to take actio~, or fails to take such action, the governmental body or bodies,
administrative or judicialj in which authority is vested under applicable law to hear appeals,
or review action, or the failure to act.
2. Declaration. Declarant hereby expressly declares that the Property shall be held,
transferred, and occupied subje~t to the Restrictions. As of the date of the execution of this
Declaration, the Property consis* solely of the Real Estate. The Owner of any Lot subject to these
Restrictions, by (i) acceptance ora deed conveying title thereto, or the execution of a contract forthe
purchase thereof, whether from Declarant or a subsequent Owner of such Lot, or (ii) by the act of
occupancy of any Lot, shall accept such deed and execute such COntract subject to each Restriction
and agreement herein contained! By acceptance of such deed or execution of such contract, cach
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Owner acknowledges the rights a*d powers ofDeclarant and ofthe Corporation with respect to these
restrictions, and also for itself, its peirs, personal representatives, successors and assigns, covenants,
agrees and consents to and with Declarant, the Corporation, and the Owners of each of the Lots
affected by these Restrictions tol keep, observe, comply with and perform such restrictions and
agreement. I
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3. Declarant shall hJve, and hereby reserves the right, at any time, and from time to
time, to add to the Property and !rubject to this Declaration all or any part of the Additional Real
Estate. Any portion of the Addi~onal Real Estate' shall be added to the Property, and therefore and
thereby becomes a part of the Prqperty and subject in all respects to this Declaration and all rights,
Obligations and privileges herein), when Declarant places ofrecord in Hamilton County, Indiana, an
instrument so declaring the samelto be part of the Property, which declaration may be made as part
of a subdivision plat of any ptt.rtion of the Additional Real Estate, or by an amendment or,
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supplement to this Declaration. ljJpon the recording ofany such instrument the real estate described
therein shall, for all purposes, thbrea:fter be deemed a part of the Property and the OViiners of any
Lots within such real estate shall ~e deemed for all purposes to have and be subject to all the rights,
duties, privileges and obligation~ of Owners of Lots within the Property. No single exercise of
Declarant's right and option to a4d to and expand the Property, as described herein as to any part or
parts of the Additional Real Estate, shal1 preclude Declarant from thereafter from time to time
further expanding and adding to ~e Property to include other portions of the Additional Real Estate,
and such right and option of expa;nsion may be exercised by Declarant from time to time as to al1 or
any portions of the Additional Rlea! Estate so long as such expansion is accomplished during the
Development Period ..Such exp~nsion of the Property is entirely at the discretion of Declarant and
nothing contained in this Declarlttion or otherwise shall require Declarant to expand the Property
beyond the Real Estate, or any d,ther portions of the Additional Real Estate which Declarant may
voluntarily and in its sole discre~ion from time to time subject to this Declaration.
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4. Drainage System! Declarant shall maintain the Drainage System in good condition ,
satisfactory for the purpose for .yhich it was constructed until the earlier of December 31, 1999, or
the date the Drainage System is *cepted as a legal drain by the Drainage Board. After the earlier of
such dates, the Corporation shal~ maintain the Drainage system to the extent not maintained by the
Drainage Board and the Maintepance Costs thereof shall be assessed against all Lots subject to
assessment serviced by that part!of the Drainage System with respect to which Maintenance Costs
are incurred. Each Lot that has! been transferred to an owner (other than the Declarant) shall be
assessed $50.00 per lot as part o~the annual Brighton Woods Homeowner's Association assessment.
The $50.00 annual assessment ~hall be sent to the City of Carmel not later than March lSI of each
calendar year for maintenance of the off site storm sewer. Each Owner shall be individually liable
for the cost of maintenance of lilly drainage system located entirely upon his Lot which is devoted
exclusively to drainage of his J4t and is not maintained by the Drainage Board.
5. Maintenance of Entty Ways, Landscape Easements and Common Area Easements
and Common Areas. I
(a) The Declar~nt shall maintain the Entry Ways and the Landscaping Easements
and all improvements and plantipgs thereon, and the Maintenance Costs thereof shall be assessed as
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a General Assessment against all Lots subject to assessmenL Grass, trees, shrubs, and other
plantings located on an Entry WaYlor a Landscaping Easement shall be kept neatly cut, cultivated or
trimmed as reasonably required tp maintain an attractive entrance to Brighton Woods, or a part
tlIereof, or a planting area witllinBrighton Woods. All entrance signs located on an Entry Way shall
be maintained at all times in godd and sightly condition appropriate to a first-class residential
subdivision. Maintenance cost sllall also include lighting, taxes, sprinkler system, shrub and plant
replacement, annual flowers and o~er items as may be decided by tlIe Brighton Woods Homewoners
Association. I
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(b) Fifty-foot Trde Preservation and Landscape Buffer Easement. Includes Lots
numbered Five (5), Six (6), Seve9 (7), Eight (8), Nine (9), Ten (10), Eleven (11), Twelve (12) and
Thirteen (13) in Section One, plu~ Lots Twenty-two (22), Twenty-Three (23), Twenty-Four (24),
Twenty-Five (25), Twenty-Six (26), Twenty-Seven (27) and Twenty-Eight (28) in Section Two.
The Owners of these Lots hereby iaccept the following conditions:
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The rear yards of +lliots that abut Northwood Hills shall contain a
fifty-foot deep tretj preservation area ("Preservation Area"). Owners
of tlIese Lots may Flear underbrush and tlIin dead trees, but may not
remove hardwood :trees that are four inches (4 n) or larger in diameter
from the preservation area unless they are unsound, diseased or tbe
root system wouldibe so severely damaged fro the construction ofthe
residence that thd tree would be unlikely to survive .. No home
foundation may eFtend into this area except that decks, window
wells, patios and open-air porcbes may extend a maximum of fifteen
feet (15') into thc freservation Area. ,
6. Roadways.
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(a) Maintenanbe. Declarant shall maintain each Roadway in good condition
satisfactory for the purp<!>se for which it was constru,,1:ed until the Roadway bas been
accepted as a public roadtay.
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(b) Landscapmg. All landscaping witbin the road right-of-way is subject to the
approval ofthe appropria~e governmental authority which, is the City ofCarmel, Department
of Community Deve!opmient.
7. Construction of Residences.
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(a) Land Use. rJ,ots may be used only for single-family residential purposes and
only one Residence not to' exceed the maximum height pennitted by and measured pursuant
to the Zoning Ordinance Mthe City of Cannel, Indiana. No portion ofany Lot may be sold
or subdivided such that there will be thereby a greater number of Residences in Brighton
Woods than tbe number <if Lots depicted on the Plat. Notwithstanding any provision in the
applicable zoning ordinance to the comrary, no Lot may be used for any "Special Use" that is
not clearly incidental andbeeessaryto single family dwellings. No home occupation shall be
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conducted or maintained dn any Lot otber tban one which does not constitute a "special use"
and which is incidental to ia business, profession or occupation of tbe Owner or occupant of
such Lot and which is g~erally or regularly conducted at anotber location which is away
from such Lot. No sigu$ of any nature, kind or description shall be erected, placed, or
permitted to remain on ar\Y Lot advertising a permitted home occupation.
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(b) Size ofRe~idence. Except as otberwise provided herein, no residence may be
constructed on any Lot lIliless such Residence, exclusive ofopen porches, attached garages
and basements, shall havia ground floor area of2,200 square feet ifa one-story strttcture, or
2,400 square feet ifa high/ r structure, with a minimum of2,000 square feet on tbe first floor.
(c) Temporary Structnres. No trailer, shack, tent, boat, basement,
garage or ~ther outbuilding may be used at any time as a dwelling, temporary
or permanFnt, nor may any structure of a temporary character be used as a
dwelling. !
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Cd) Building rLoeation and Finished Floor Elevation. No building
may be enlcted between tbe building line shown on tbe Plat and the front Lot
line, and no structure or part thereof may be built or erected nearer than ten
(10) feet tp any side Lot line or nearer than twenty (20) feet to any rear Lot
line. The! side yards must aggregate twenty-five (25) feet. No aecessory
building ~lay be erected in front of a main building or in tbe required front
yard on ~e side of a comer lot unless the accessory building is attached to
the main building by a common wall. A minimum finished floor elevation,
shown on fue development plan for Brighton Woods, has been established for
eaeh Lot !depicted on tbe Plat and no finished floor elevation with tbe·
exeeptioniof flood protected basements shall be constructed lower tban said
minimumi witbout the written consent of tbe Architectural Review Board.
Demonst:r;lrtion ofadequate storm water drainage in conformity witb botb on
Lot and oVerall project drainage plans shall be a pre-requisite for alternative
finished tioor elevations. Before construction commences, tbe finished floor
elevation ~hall be physically checked on the Lot and certified by a licensed
professiOlpal engineer or a licensed land surveyor. ,
(e) Driveways. All driveways shall be paved and maintained dust
free. Ap~roved pavements are brushed concrete, aggregate concrete or
pavers. ~II other surfaces require architectural review board approval.
(f) Yard Lights. If street lights are not installed in Brighton Woods, then tbe
Homeowber on each Lot shall supply and install a yard light in operable
condition! on such Lot at a location, having a height and of a type, style and
manufac~re approved by the Architectural Review Board prior to tbe
installation tbereof. Each such light fixture shall also have a bulb of a
maximUl~ wattage (total wattage of all bulbs not to exceed 160 watts)
I approve~by Architectural Review Board to insure uniform illumination on
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(g)
(h)
(I)
(j)
(k)
(m)
each Lot anb shall be equipped with a photo electric cell or similar device to
insure automatic illumination from du;;k to dawn each day. The yard light
shall be maintained in proper working order by the Lot Owner.
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Fireplace Chase. AU Fireplace Chases shall be of mason!.)' veneer, or Drivit.
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Storage T1nks. All above or below ground storage tanks, with
the excep,ion of gas storage tanks used solely in connection
with gas ~lls for the ptupose of grilling or cooking food, shall
be and her9by are prohibited.
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Landscapitlg. All construction upon, landscaping of and other improvements
to a Lot shall be completed strictly in accordance with the Lot Development
Plan apprdved by the Architectural Review Board. Landscaping shall
include a n1inimum of two 2" deciduous trees or one 2" tree and one 6' pine
tree. All l)mdscaping specified on the landscaping plan approved by the
Architectutal Review Board shall be installed on the Lot strictly in
accordancfj with such approved plan within thirty (30) days following
subsrantialicompletion of the Residence unless the Board agrees to a later
landscaping completion date. All front yards must have a professionally
installed sPrinkler system. All lawns must be serviced a minimum of
four/times per year by professional lawn care company.
Windows. iAll windows must be insulated wood or wood clad (Vinyl or
Aluminum lextruded cover over wood). No aluminum windows shall be
permitted. jo. strong preference will be given to casement windows unless the
design of t~e exterior of the home requires double hung windows.
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Exterior dmstruction. The first floor of each residence must be
predominat~ly masonry or drivit construction. Accent areas may be of cedar
or composi~e construction. No T-I J I or 4' X 8' stoe construction may bc
used. Othd types of construction may be considered at the sole discretion of
the Archite4turaJ Review Board.
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Unless a delay is caused by sttikes, war, court injunction or acts of God, the
Owner of :loy Lot which on the date of purchase is not improved with a
Residence ~hall commence construction of a Residence upon the Lot within
two (2) ye~rs from the date the Owner acquired title thereto and shall
complete c9nstruction of such Residence within one (1) year after the date of
commencement of the building process, but in no event later than three (3)
years after :the date the Owner acquired title to the Lot unless such Lot is
adjacent to ~Lot upon which the Owner has constructed a Residence in which
such Ownel' pennanently resides. If the Owner fails to commence or complete
conslructio~ of a Residence within the time periods specified herein, or if the
Owner sho~ld, without Declarant's written approval, sell, contract to sell,
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convey, or ~therwise dispose of, or attempt to sell, conveyor otherwise
dispose of! the Lot before completion of construction of a
Residence 011 the Lot, then, in any of such events, Declarant may:
(i) re-enter th~ Lot and divest the Owner of title thereto by tendering to the
Owner or t~ the Clerk of the Circuit Court of Hamilton County the lesser of
(i) the san/e net dollar amount as was received by Declarant from such
Owner a~ c~nsideration for the conveyance by Declarant of the Lot, together
with such ~ctual costs, if any, as the Owner may prove to have been incurred
in connection with the commencement of construction of a Residence on the
Lot and (ii~the then fair market value of the Lot, as detennined by averaging
two. (2) appraisals made by two (2) qualified appraisers appointed by the
Judge of~e Circuit or Superior Court of Hamilton County, Indiana.
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(ii) obtain injunctive relief to force the Owner to proceed with construction of
any reside4ee, a Lot Development Plan for which has been approved by the
Architectural Review Board upon application by such Owner; or
(iii) pursue su~h other remedies at law or in equity a may be available to
Declarant. I
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The failur~ of the Owner of a Lot to apply for approval of, or receive
approval f~om, the Architectural Review Board of a Lot Development Plan
shall not relieve such Owner from his obligation to commence and complete
constructi4n of a Residence upon the Lot within the time periods specified
herein. ~or the purposes of this sub-paragraph (i), construction of a
Residencclwi1l be deemed "completed" when the extenor of the Residence
(including! but not limited to the foundation, walls, roof, windows. entry
doors, gUt(ers, downspouts, exterior trim, paved driveway and landscaping)
has been 'It,mpleted in conformity with the Lot Development Plan and the
owner has received a Certificate of Occupancy from the Carmel Department
of Commtjnity Development.
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(k) Mailboxe~. All mailboxes installed upon Lots shall be uniform and shall be
of a typej' color and manufacture approved by the Architectural Review
Board. S ch mailboxes shall be installed upon posts approved as to type,
size and I . cation by the Architectural Review Board and paid for by the lot
purchaser !at the time of lot closing.
(I) Septic Sy~tems. No septic tank, absorption field or any other on-site sewage
disposal sYstem (other than a lateral main connected to a sanitary sewage
collection! system operated by the City of Cannel (or a successor public
agency or ipublic utility) shall be installed or maintained on any Lot.
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(m) Water Syst~ms. Each Owner shall connect to such water line maintained by
the City ofjCannel public water utility to provide water for domestic use on
the L3t am' shall pay all connection, availability or other charges lawfully
establishe~ with respect to connections thereto. Notwithstanding the
foregoing, )m Owner may establish, maintain and use an irrigation water well
on his L3t ;Providing they obtain all necessary and proper permits and that
said well hroo shall not be taller than two feet above the ground and located
behind theireaf foundation of the home.
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(n) Drainage. lIn the event storm water drainage from any Lot or Lots flows
across ano;lher Lot, provision shall be made by the Owner of such Lot to
permit suc~drainage to continue, without restriction or reduction, across the
downstreru!n Lot and into the natural drainage channel or course. although no
specifie dr~inage easement for such flow ofwater is provided on the Plat. To
the extent Inot maintained by the Drainage Board, "Drainage Easements"
reserved as drainage swales shall be maintained by the Owner of the Lot
upon which such easements are located such that water from any adjacent Lot
shall have !illequate drainage along such swale. Lots within Brighton Woods
may be inqluded in a legal drain established by the Drainage Board. In such
event, eacll Lot in Brighton Woods will be subject to assessment by the
Drainage JfIoard for the costs of maintenance of the portion of the Drainage
System anji the Lake Control Structures included in such legal drain, which
assessmen~ will be a lien against the Lot (see item 4, "Drainage System").
The eleva~ion of a Lot shall not be changed so as to affect materially the
surface eltfation or grade ofsurrounding Lots. Perimeter foundation drains,
sump putl)p drains, downspouts and water softeners, shall be connected
whenever ~easible into a subsurface drainage tile. Downspouts and drains
shall be d~igned to disperse runoff for overland flow to street or swale
collection Isystems. Each Owner shall maintain the subsurface drain.~ and
tiles locat~d on his Lot and shall be liable for the cost ofall repairs thereto or
Ireplacements thereof.
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(0) Vacant Lots. It shall be the duty and obligation ofthe Owner of a vacant Lot
to maintain such Lot and mow the lawn thereon. Declarant and the
Corporati~n shall have the right, but not the obligation, to mow the lawn and
maintain vacant Lots. Weed heights on Vacant Lots in open areas shall not
exceed tw~(2) feet in height, except in wooded areas whcre it is not feasible
to use lar~e mowing equipment. ,,
(P) Outbuildihgs. Out buildings and sheds are specifically prohibited except that
Declarant!may allow them on a case by case basis for pools, cabanas, etc. ,
I 1. Maintenance of Lots!
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(a) Vehicle Parking. No camper, motor home, truck, trailer, boat or disabled vehicle
may be parked or stored o~emight or longer on any Lot in openpublic view.
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(b) Signs. Except for such signs as Declarant may in its absolute discretion display
in connection with the ideJiltification or development ofBrighton Woods and the sale ofLots
or model homes therein Iand such signs as may be located in any Common Area or
Community Area, no siIW of any kind shall be displayed to the public view on any Lot
except that two (2) signs qfnot more than four (4) square feet may be displayed at any time
for the purpose of advert}sing the property for sale, or may be displayed by a builder to
advertise the property durjng construction and sale. A builder shall display a "sold" sign on .
the Lot when he has sold fhe property.
(c) Fencing. ~o fence, wall, hedge or shrub planting higher than eighteen (18)
inches shall be permitted ~etween the front property line and the front building set-back line
except where such phlntiI/g is part of Residence landseaping and the prime root thereof is
within six (6) feet of the/Residence. Comer Lots shall be deemed to have two (2) front
yards. Trees and evergreeps shall not be deemed "shrubs" unless planted in such a manner as
to constitute a "hedge." N~chain link fence shall be erected upon a Lot. All fencing shall be
uniform in height, style .,pd color and substantially similar in material~ No fence shall be
erected or maintained on <lr within any Landscaping Easement or Sign Easement except such
as may be installed by Qec1arant and subsequently replaced by the Corporation in such
manner as to preserve th¢ uniformity of such fence. All fences shall be wrought iron or
similar materi<ll or shado,l.v box cedar in a uniform design as selected by the Developer.
Shadow box fences may :only be erected on the outer perimeter of Brighton Woods as it
abuts neighboring properties. Shadow box fencing may not be used in side yards or in the
rear of a yard that abuts aPoth~r lot in Brighton Woods. Only wrought iron fences may be
used in side yards and reljr yards where they abut other lots in Brighton Woods. No fence
may be erected on a Lot vviithout the prior approval ofthe Architectural Review Board, which
may establish further re~trictions with respect to fences, including limitations on (or
prohibition of) the instal1~tion of fences in the rear yard of a Lot and design standards for
fences. All fences shaH pe kept in good repair. No fence, wall, hedge or shrub planting
which obstructs sight linbs at elevations between two (2) and six (6) feet above the street
shall be placed or permittfd to remain on any comer Lot within the triangnlar area formed by
the street property lines 1jnd a line connecting points 25 feet from the intersection of said
street lines, or in the caselofa street line with the edge ofa driveway pavement or alley line.
No tree shall be permitte(l to remain within such distances of such intersections unless the
foliage line is maintaine~ at sufficient height to prevent obstruction of such sight lines.
(d) Fencing al;mtting North Wood Hills. The Declarant has applied for a variance
that would permit an eig~t foot fence that would be erected apprOXimately one foot off the
East property line ofLotsIfive (5) thru thirteen (13) in Section One and Lots twenty two (22)
thru twenty eight (28) in ~ection Two. Ifthe variance for an eight foot fence is not approved
the Declarant will erect a; six foot fence.
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i
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(e) Fencing albng Hazel Den Parkway. No fencing shall be erected in a
Landscape Easement, Si~Easement, or in a Common Area except by the Declarant Any
fencing along Hazel Dell Rarkway shall be constructed ofthe same material, and be the same
height, the same color and ~e same design and the same appearance and shall be constructed
only with the approval of fbe Architectural Review Board.
I
(f) Vegetation.I An Owner shall not permit the growtb of weeds and volunteer
trees and bushes on his !ht, and shall keep his Lot reasonably elear from such unsightly
growtb at all times. If a+. Owner fails to comply with this restriction, the Architectural
Review Board may (but ~hall not be obligated to) cause the weeds to be cut and the Lot
cleared of such growtb at/the expense of the Owner thereof and the Architectural Review
Board shall have a lien agllinst the cleared Lot for the expense thereof. An exception hereto
shall be the normal undetgrowtb in any wooded areas. Should the City of Carmel fail to
keep the weeds at two foofheightor less in the 50 foot wide utility easement that runs on the
West side of Dubarry Co~rt, then the Brighton Woods Homeowner's Association shall be
responsible for cutting th~ vegetation in the easement ,
(g) Nuisances] No noxious or offensive activity shall be carried on upon any Lot ,
nor shall anything be dom~thereon which may be, or may become, an annoyance or nuisance
to the neighborhood. B~ing dogs shall constitute a nuisance.
j
(h) Garbage abd Refuse Disposal. No Lot shall be used or maintained as a
dumping ground for trrujh. Rubbish. garbage or other waste shall be kept in sanitary·
containers out ofpublic view. All equipment for storage or disposal ofsuch materials shall
be kept clean and sanita!Ji.
I
(i) Livestock lmd Poultry. No animals, livestock or poultry of any kind shall be
raised, bred or kept on any Lot, except that dogs, cats or other household pets may be kept
provided that they are not!kept, bred or maintained for any commercial purpose. The owners
of such permitted pets sh<lU confine them to their respective Lots such that they will not be a
nuisance. Owners ofdog* shall so control or confine them so as to avoid barking which will
aonoy or disturb adjoining Owners. ,
;
G) Outside Blrrning. No trash, leaves, or other materials shall be burned upon a
Lot if smoke therefrom iwould blow upon any other Lot and, then, only in acceptable
incinerators and in compliance with all applicable legal requirements. ,
i
(k) Antcunas arid Receivers. No antenna, satellite dish, or other device for the
transmission or receptioh of radio, television, or satellite signals or any other form of
electromagnetic radiatio~ shall be erected, used or maintained outdoors and above ground,
whether attached to a btIilding or otherwise, on any residential Lot without the written
approval of the Archite4tnral Review Board, which approval shall not be unreasonably
withheld; provided, how~ver, that any such device may be installed and maintained on any
Lot without the necessitY of such written approval if: (a) it is not visible from neighboring
Lots, streets or common :)rea; or (b) the Owner, prior to installation, has received the written
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consent ofthe Owners of;in Lots who would have views ofthe device from their Lots; or (c)
the device is virtually indIstinguishable from structures, devices or improvements, such as
heat pumps, air CQnditioning units, barbecue grills, patio furniture, and garden equipment,
which are not prohibited by these CQvenants or by-laws, or (d) it is a satellite dish two (2)
feet or less in diameter ana not affIXed to the roof of a residence so as to be visible from the
frontage street.
(I) Exterior Lights. ·No exterior lights shall be erected or maintained between the
. building line and rear lot jine so as to shine or reflect directly upon another Lot
(m) Electric Bu~Kiliers. Electric bug killers, zippers," and other similar devices
shall not be installed at ,location or locatIOns which Wlll result m the operatIOn thereof
becoming a nuisance or ru)noyance to other Owners, and shall be operated only when outside
activities require the use t,ilereof and not continuously.
(n) Tennis Courtsj No tennis court shall be installed or maintained
on any Lot. i
(0) Swimming pdols. No swimming pool or equipment or building related thereto
shall be CQnstructed withput the prior approval of the Architeetural Review Board. Only
below-ground pools of=iidential size, CQnstructed by professional pool companies, shall be
considered. Ifa variance Jjermitting installation of a mechanical pool cover in lieu offencing
has been or may be obtaIned from the Zoning Authority, then the Architectural Review
Board may require, as a condition to the location of a swimming pool on a Lot, that the
Owner install a mechanihal pool cover. If the Board imposes such requirement, then a ,
mechanical pool cover of a type and manufacture approved by the Architectural Review
Board shall be installed by the Owner in CQmpliance with all applicable legal requirements
established by the Zoning Authority as a condition to such variance, and all requirements
established by the Archit~ctural Review Board.
i
8. Brighton Woods Homeowners_Association. Inc.
(a) Membersl:tip. Each Owner shall automatically be a Member and shall enjoy
the privileges and be bound by the obligations contained in the Articles and By-Laws_ Ifa
Person would realize upop his security and become an Owner. he shall then be subject to all
the requirements and Iim~tations imposed by this Declaration on other Owners, including
those provisions with respect to the payment ofAssessments.
(b) Powers. The Corporation shall have such powers as are set forth in this
Declaration and in the Al\icles and By-Laws, together with all other powers that belong to it
bylaw. .
(c) Classes of Membership and Voting Rights_ The Association shall have the
following two (2) classes! , of voting membership:
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Class A. Class A Vtembers shall be all Owners with the exception of the Declarant.
Class A members shall bel entitled to one (1) vote for each Lot owned. When more than one
person holds an interest jJ any Lot, all snch persons shall be members. The vote for each Lot
shall be exercised as th~ members holding an interest in such Lot determine among
themselves, but in no event shaH more than one vote be cast with respect to any Lot.
Class B. The Clas~B member shall be the Declarant. The Declarant shall be entitled
to five (5) votes for each /Lot owned. For purposes of this calculation, it shall be assumed
that Declarant owns all rlots, which number shall be reduced as Lots are conveyed by the
Declarant to an Owner. the Class B membership shall cease and be converted to Class A
membership on the happening of either ofthe following events, whichever occurs earlier: (a)
when the total number ofJvotes outstanding in the Class A membership is equal to the total
number of votes outstand~ng in the Class B membership; or, (b) December 31, 2015. ,
i
(d) Reserve ror Replacements. The Board of Directors shall establish and
maintain the Reserve for ~eplacements by the allocation and payment to such reserve fund
of an amount determined jannually by the Board to be sufficient to meet the cost of periodic
maintenance, repairs, ren~wal and replacement ofthe Community Area. In determining the
amount, the Board shall tpke into consideration the expected nsefullife of the Community
Area. projected increase~ ill the cost of materials and labor. interest to be earned by such
fund and the advice ofDeplarant or such consultants as the Board may employ. The Reserve
for Replacements shall ~e deposited in a special account with a lending institution, the
accounts of which are in~ured by an agency of the United States of America or may, in the
discretion of the Board, b:e invested in obligations of, or fully guaranteed as to principal by,
the United States ofAmelica. The initial assessment for the "Reserve for Replacements" is
established at $350.00 pt;'r Lot to be paid at lot closing.
!
(e) Limitatiorls on Action by the Corporation. Unless the Class B Member and
(i) at least two-thirds Qf~e Mortgagees (based on one vote for eaeh first mortgage owned) or
(ii) two-thirds (2/3) ofth)" Class A Members (other than Declarant) have given their prior
written approval, the Corporation, the Board of Directors and the Owners may not: (i) except
as authorized by Paragraph 13( a}, by act or omission seek to abandon, partition, subdivide,
encumber, sell or transfd,r the Community Area (but the granting or easements for public
utilities or other public ifrposes consistent with the intended use of the Community Area
shall not be deemed a trapsfer for the purposes of this clause); (ii) fail to maintain fire and
extended coverage on inSurable Community Area on a current replacement cost basis in an
amount at least one hu.."ldred percent (100%) of the insurable value (based on current
replacement cost); (iii) rule hazard insurance proceeds for losses to any Community Area for
other than the repair, repl~cement or reconstruction ofthe Community Area; (iv) change the
method ofdetermining ti"\e obligations, assessments, dues or other charges that may be levied
against the Owner of a ~esidence; (v) by act or omission change, waive or abandon any
scheme of regulations or their enforcement pertaining to the architectural desigu or the
exterior appearance ofR+sidences, or the maintenance and up-keep ofthe Community Area;
-14
I
or (vi) fail to maintain ~he Reserve for Replacements in the amount required by this
Declaration. i
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(f) Mergers. Upon a merger or consolidation of another corporation with the
Corporation, its properti~, rights and obligations may, as provided in its articles of
incorporation, by operatif>n of law be transferred to another surviving or consolidated
corporation or, alternativ~ly, the properties, rights and obligations of another corporation
may be operation oflaw be added to the properties, rights and obligations ofthe Corporation
as a surviving corporatio~~:suant to a merger. The surviving or consolidated corporation
may administer the cov. ts and restrictions established by this Declaration within the
Property together with thejcovenants and restrictions established upon any other properties as
one scheme. No other mefger or consolidation, however, shall effect any revocation, change
or addition to the covena*ts established by this Declaration within the Property except as
hereinafter provided. j
I,
(g) Terminatidn of Class B Membership. Wherever in this Declaration the
consent, approval or vote ~fthe Class B Member is required, such requirement shall cease at
such time as the Class B Membership terminates, but no such termination shall affect the
rights and powers ofDec~rant set fortb in Paragraphs 16(b), 16(f), 17, or 20 (b),
(h) Board of Directors· During the Development Period, the Declarant shall ,
appoint all directors, shallJfiU all vacancies in the Board ofDirectors, and shall have the right
to remove any Director ad any time, with or without cause, After the Development Period,
the Owners shall elect ~ Board of Directors of the Association as prescribed by the
Association's Articles am$ Bylaws. The Board of Directors shall manage the affairs of the
Association. Directors m!ed not be members of the Association.
9. Assessments,
(a) Creation df the Lien and Personal Obligation of Assessments. Declarant
hereby covenants, and ea¢h Owner of any Lot by acceptance of a deed thereto, whether or
not it shall be so express~d in such deed, is deemed to covenant and agree, to pay to the
Corporation the followi\1g: (1) General assessments, (2) Special Assessments, such
Assessments to be establi/>hed and collected as hereinafter provided.
l
All Assessments, ~ogether with interest thereon (calculated at! \1,% per month on
delinquent dues) and costs Jof collection thereof, shall be a charge on the land and shall be a
continuing lien upon the 14t against which each Assessment is made until paid in fulL Each
Assessment. together with jinterest thereon and costs of collection thereof, shall also be the
personal obligation of the: Person who WaS the Owner of the Lot at the time when the
Assessment became due. I
I
(b) General A1sessment.
!
(i) PUIpose ofAssessment. The General Assessment levied by the
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Corporation shall be used! exclusively to promote the recreation, health, safety, and welfare
of the Owners of Lots land for the improvement, maintenance and operation of the
Community Area and all ~ign easements and landscape easements. The General Assessment
shall also be levied for the payment ofreal estate taxes allocable to the Community Areas,
which real estate taxe1 shall be paid by the Corporation from the date hereof,
notwithstanding that the l\'eclarant may retain title to all or part ofthe Community Area. It
shall further be the obligation of the Corporation to (i) maintain and pay all costs of
maintenance of all pUblic)ighting installed and existing in any right-of-way (ii) pay the costs
of all electricity and ener~usage attributable to public lighting installed and existing any
right-of-way and (iii) mail1ltain and pay the costs ofmaintenance ofany sidewalks which abut
a right-of-way but are not !within the right-of-way, and the General Assessment shall also be
levied by the Corporatibn to comply and pay for with the foregoing maintenance
requirements and obligati~ms. It shall further be the obligation ofthe corporation to maintain
all landscaping, pay for s,'easonal plantings, lawn care and fertilization, mulch, trimming,
weeding and other activit~'es to maintain a first class entrance and other common areas. The
maintenance and operatit of a sprinkler system and ground lighting at the entrance shall
also be in included. !
(ii) Basis for Assessment.
I
(I) Lots Generally, Each Lot owned by a person other than Declarant shall be
assessed at a unif4nn rate without regard to whether a Residence has been
constructed upon ~e Lot.
I
(2) Lots Owned by Declarant. No Lot owned by Declarant shall be assessed
by the Corporatio* except such Lots as have been improved by the construction
thereon of Reside~ces which shall be subject to assessment as provided in Clause
(I) above. i
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(3) Change in !Basis. The basis for assessment may be changed with the
assent of the Clas4 B Member and of (i) two-thirds (2/3) of the Class A Members
(excluding Dec1arjmt) or (ii) two-thirds (2/3) of the Mortgagees (based on one
vote for each firstimortgage owned) who are voting in person or by proxy at a
meeting of such niembers duly called for this purpose.
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(iii) Method of1 Assessment. By a vote of a majority ofthe Directors, the
Board ofDireetors shall, ~n the basis specified in subparagraph (ii), fix the General
Assessment for each asse1;sment year ofthe Corporation at an amount sufficient to meet
the obligations imposed li,y this Declaration upon the Corporation. The general
assessment shall be invoifed bl January 1 sf of each year and shall be considered deliquent
ifnot received by FebIUallY 15 and accrue interest at 1'12% per month.
(iv) Allocation! of Assessment. Except as otherwise expressly
provided herein, the cost ~f maintaining, operating, restoring or replacing the Community
Area shall be allocated equally among owners of all Lots and shall be uniformly assessed. ,
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(c) Special Assdssment. The Corporation may levy in any fiscal year a Special
Assessment applicable to ithat year and not more than the next four (4) succeeding fiscal
years for the purpose ofde.jIaying, in whole or in part, the cost ofany construction, repair, or
replacement of a capital irhprovement upon or constituting a part of the Community Area,
including fixtures and pers;onal property relating thereto, provided that any such Assessment
shall have the assent of th~ Class B Member and of a majority of the votes of the Class A
members whose Lots are sitbject to assessment with respect to the capital improvement who
are voting in person or by proxy at a meeting ofsuch members duly called for this purpose.
i,
(d) pate of Commencement of Assessments. The General Assessment shall
commence with respect ~o assessable Lots on the first day of the month following
conveyance ofthe first Lotito an Owner who is not Declarant. The initial Assessment on any
assessable Lot shall be adjpsted aecording to the nmnber of whole months remaining in the
assessment year. I
(e) Effect of Nonpayment of Assessments; Remedies of the Corporation. Any
Assessment not paid within thirty (30) days after the dne date may upon resolution of the
Board of Directors bear i~terest from the due date at a percentage rate no greater than the
current statutory maximu$ annual interest rate, to be set by the Board ofDircetors for each
assessment year. The Coi-poration shall be entitled to institute in any court of competent
jurisdiction any lawful acFion to collect the delinquent Assessment plus any expenses or
costs, including attomeys'!fees, incurred by the Corporation in collecting such Assessment.
If the Corpora!ion has prpvided for collection of any Assessment in installments, upon
default in the payment oJ) anyone or more installments, the Corporation may accelerate
payment and declare the fntire balance of said Assessment due and payable in fulL No
Owner may waive or otherwise escape liability for the Assessments provided for herein by
non-use of the Cornmuniti.( Area or abandonment ofrus Lot.
,i
(f) Subordination of the Lien to Mortgages. The lien of the Assessments
provided for herein agairist a Lot shall be subordinate to the lien of any recorded first
mortgage covering such t':ot and to any valid tax or special assessment lien on such Lot in
fuvor ofany governmenta~taxing or assessing authority. Sale or transfer ofany Lot shall not
affect the assessment lien.! The sale or transfer ofany Lot pursuant to mortgage foreclosure
or any proceeding in lieu tjIereof shalJ, however, extinguish the lien of such Assessments as
to payments which becam;e due more than six (6) months prior to such sale or transfer. No
sale or transfer shall relievb such Lot from liability for any Assessments thereafter becoming
due or from the lien there~f
ill Certificates. llhe Corporation shall, upon demand by an
Owner, at any time, fumi$h a certificate in writing signed by an officer of the Corporation
that the Assessments on a 'Lot have been paid or that certain Assessments remain unpaid, as
the case may be.
(h) Exempt Property. The following property subject to this Declaration shall be
exempt from the Assessmpnts, charge and lien created herein: (1) all properties to the extent
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I
i
of any easement or other interest therein dedicated and accepted by the local public authority
and devoted to public use land (2) the Community Area.
I
(i) Annual Budget. By a majority vote oflhe Directors, the Board of Directors
shall adopt an annual bU:dget for the subsequent fiscal year, which shall provide for
allocation ofexpenses in ~ch a manner that the obligations imposed by the Declaration will
be met. I
10. Architectural Conrl-oL
I
(a) The Architectural Review Board. Until the end of the Development Period,
an Architectural Review J30ard consisting of two (2) Persons shall be appointed by the
Declarant. After the exp~tion ofthe Development Period, the Architectural Review Board
shall be appointed by the Ipoard of Directors.
i
(b) Purposes. the Architectural Review Board shall regulate the external design,
appearance, use, location ~d maintenance of the Property and of improvements thereon in
such manner as to presejve values and to maintain a harmonious relationship among
structures, improvements ~nd the natural vegetation and topography.
!
(c) Change lni Conditions. Except as otherwise expressly provided in this
Declaration, no improvembnts, alterations, repairs, change ofcolors, excavations, changes in
grade, planting or other Iwork that in any way alters any Lot or the exterior of the'
improvements located thereon from its natural or improved state existing on the date such
Lot was first conveyed injfee by the Declarant to an Owner shall be made or done without
the prior approval by the Architectural Review Board of a Lot Development Plan therefor.
Prior to the commenceme*t by an Owner other than Declarant of (i) construction, erection or
alteration of any Residenge, building, fence, wall, swimming pool, tennis court, patio, pier,
dock, recreational equipm,ent, or other structure on a Lot or (ii) any plantings on aLot, a Lot
Development Plan with rewect thereto shall be submitted to the Architectural Review Board,
and no building, fence, wall, Residence, or other structure shall be commenced, erected,
maintained, improved, al~ered, made or done, or any plantings made, by any Person other
than Declarant without th~ prior written approval by the Architectural Review Board ofa Lot
Development Plan relatn)g to such construction, erection, alteration or plantings. Such
approval shall be in additlon to, and not in lieu of, all approvals, consents, permits and/or
variances required by lawifrom governmental authorities having jurisdiction over Brighton
Woods, and no Owner s~all undertake any construction activity within Brighton Woods
unless legal requirements:have been satisfied. Each Owner shall complete all improvements
to a Lot strictly in accord~nce with the Lot Development Plan approved by the Architectural
Review Board, A used lin this subparagraph (c), "plantings" does not include flowers,
bushes, shrubs Or other plants having a height of less than 18 incbes.,
i
(d) Procedures. In the event the Architectural Review Board fails to approve,
modifY or disapprove in f.r.iting a Lot Development Plan within thirty (30) days after such
plan has been duly filed "fith the Architectural Review Board in accordance with procedures
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established by Declarant lor, if Declarant is no longer a Class B member, the Board of
Directors' approval will bi: deemed granted. If Declarant is no longer a Class B member, a
decision ofthe Architecrutal Review Board may be appealed to the Board ofDirectors which
may reverse or modify sucp decision bya two-thirds (2/3) vote ofthe Directors then serving. ,
(c) Guidelines and Sclndards. The Architectural Review Board shall
have the power to establish such architectural and landscaping design guidelines and
standards as it may deem appropriate to achieve the purpose set forth in subparagraph (b) to
the extent that such desi!ln guidelines and standards are not in conflict with the specific
provisions of this Decl1tion. If Declarant is no longer a Class B member, any such
guideline or standard may be appealed to the Board of Directors which may terminate or
modify such guideline or ~tandard by a two-thirds (2/3) vote of the Directors then serving.
,
(f) It is the intent of the Declarant to establish an area of houses with fust floor master
bedrooms with minimumlvalues of improvements and lot if$350,000 or greater. A model
house will be built and m~rketing efforts established to achieve this end. Should this not be
commercially viable (as d~termined by the Declarant) other style homes may be built as long
as the appraised value of +-ot and improvements is $350,000 or greater.
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II. Community Area.[ ,
(a) Ownershid. The Community Area shall remain private, and neither
Declarant's execution or *cording of any instrument portraying the Community Area, nor
the doing of any other ad by Declarant is, or is intended to be, or shall be construed as, a
dedication to the public ~f such Community Area. Declarant or the Corporation may,
however, dedicate or traJ,\.sfer all or part of the Community Area to any public agency,
authority or utility for use/as roads, utilities, parks Or other public purpnses. The three-acre
"Nature Preserve Area" h*s granted a 50' wide non-motorized access path to the residents of
Northwood Hills and shal) maintain a clean walking path to Founders Park. Taxes, insurance
and maintenance of the Icommunity area shall be a part of the annual assessment of
Homeowners dues to the )3righton Woods Homeowners Association.
!
(b) Density otiUse or Adequacy. Declarant expressly disclaims any warranties or
representations regardinglthe density ofuse ofthe Community Area or any facilities located
thereon or the adequacy tjlereof for the purpose intended.
(c) ObligatioJs of the Corporation. The Corporation, subject to the rights of
Declarant and the Owners set forth in this Declaration, shall be responsible for the exclusive
management and control 'of the Community Area and all improvements thereon (including
furnishings and equipment related thereto), and shall keep the Community Area in good,
clean, attractive and sani~ary condition. order and repair.
(d) Easement~ of Enjoyment. No Person shall have any right or easement of
enjoyment in or to the Cqmmunity Area except to the extent granted by, and subject to the
terms and provisions of, ):his Declaration or resolution adopted by the Board of Directors.
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Such rights and easements ~s are thus granted shall be appurtenant to and shall pass with the
title to every Lot for whos9 benefit they are granted. Each Owner shall have the right to use
such parts of the CommUI\ity Area as are reasonably required to afford access to and from
such Owner's Lot. The !Homeowner's Association hereby grants to the residents of
Northwood Hills the rightl of egress across a 50 foot wide easement through the 3+ acres
Common Area for non-m9torized vehicles and pedestrian access to the Founders Park.
!
(e) Extent of Easements. The easements of enjoyment created hereby
shall be subject to the foll~wing:
I
(i) the rightlofthe Corporation to establish reasonable rules for the use ofthe
Community Area;
,
I
(ii) the light ofthe Corporation to mortgage any or all ofthe Community
Area and ~facilities constructed thereon for the pmposes ofimprovements
to, or repaIr of, the Community Area or facilities constructed thereon,
pursuant td approval of the Class B member and (i) two-thirds (2/3) of the
votes ofthJ Class A members (excluding Declarant) or (ii) two-thirds (2/3»
ofthe Mortkagees (based on one vote for each first mortgage owned), voting
in person at by proxy at a regular meeting of the Corporation or a meeting
duly called! for this purpose-, and
(iii) the rght of the Corporation to dedicate or transfer all or any part of
the Comrnl;l11ity Area to any public agency, authority or utility, but no such
dedication pr transfer shall be effective unless an instrument signed by the
Class B m~mber and (i) the appropriate officers of the Corporation acting
pursuant ta, authority granted by two-thirds (2/3) of the votes of the Class A
members (~xcluding Declarant) Or (ii) two-thirds (2/3) of the Mortgages
(based on lone vote for each first mortgage owned), agreeing to such
dedication pr transfer, has heen recorded. ,
(I) Additi9naliRights ofUse. The members ofthe family and the guests ofevery
Person who has a right of enjoyment to the Community Area and facilities may use the
Community Area and faci;ilities subject to such general regulations consistent with the
provisions of this Declara~on as may be established from time to time by the Corporation
and included within the R~gister ofRegulations.
i
(g) Damage ot, Destruction by Owner. In the event the Community Area is
damages or destroyed bY, an Owner or any of his guests, tenants, licensees, agents, or
member of his family, sue;h Owner authorizes the Corporation to repair said damaged area;
the Corporation shall rdpair said damaged area in a good workmanlike manner in
eonformance with the origmal,plans and specifications of the area involved, or as the area
may have been modified ~r altered subsequently by the Corporation in the discretion ofthe
Corporation. The amount necessary for such repairs shall become a Special Assessment
upon the Lot of said Own~L
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(h) Conveyande of Title. Declarant may retain the legal title to the Community
Area or any portion there+f until such time as it has completed improvements thereon, but
notwithstanding anyprov~sion herein, the Declarant hercby covenants that it shall convey the
Community Areas; #1, #2 and#3 to the Corporation, free and clear ofall liens and fmancial
encumbrances. Owners s~all have all the rights and obligations imposed by this Declaration
with respect to such Co~unity Area prior to conveyance, except that the Corporation shall
be liable for payment oftaxes and insurance for such Community Area as part of the annual
Homeowner's Associatio~ dues.
12. Easements.
i
(a) Plat Easements. In addition to such easements as are created elsewhere in this
Declaration and as may b~created by Declarant pursuant to written instruments recorded in
the Office of the Recorder of Hamilton County, Indiana, Lots are subject to drainage
easements, sewer easem~nts, utility easements, sign easements, entry way easements,
landscaping easements, '*e maintenance access easements and non-access easements, either
separately or in any comJ:tination thereof, as shown on the Plat, which are reserved for the
use of Owners, public utilities companies and governmental agencies as follows:
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(i) Drainage Easements. (DE) are crcated to provide paths and courses for area
and local storm drainage,! either overland or in adequate underground conduit, to serve the
needs of Brighton Woodsland adjoining ground andlorpublic drainage systems; and it shall
be the individual respons~bility of each Owner to maintain the drainage across his own Lot.
Under no circumstance s~all said easement be blocked in any manner by the construction or
reconstruction of any imJirovement, nor shall any grading restrict, in any manner, the water
flow. Said areas are snbJect to construction or reconstruction to an} extent necessary to
obtain adequate drainage ~t any time by any governmental authority having jurisdiction over
drainage, by Declarant, arid by the Architectural Review Board, but neither Declarant nor the
Architectural Review B~ard shall have any duty to undertake any such construction or
reconstruction. In the ev~nt the Declarant or the Architectural Review Board undertakes any
such construction or recobstruction, its obligations'to restore the affected real estate after any
such construction or recobstruction shall be limited to regrading and re-seeding. The cost to
correct the drainage shallibe the obligation of the Lot owner and may be placed as a lien on
the Lot. Under no crrc,umstances to shall the Declarant be liable for any damage or
destruction to any fencesl structures, or other improvements which are damaged, destroyed
or remodeled by Declara'nt, Of its agents or employees as a result of such construction or
reconstruction. Said easyments are for the mutual use and benefit ofthe Owners,
(ii) Sewer Easements. (SE) are created fOf the use ofthc local government agency
having jurisdiction over any storm and sanitary waste disposal system which may be designed
to serve Brighton Woods (or the purpose of installation and maintenance ofsewers that are a
part of said system. !
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(iii) Utility EasJments. CUE) are created for the use ofDeclarant, the Corporation
and all public utility comp~ies, not including transportation companies, for the installation
and maintenance of mains, qucts, poles, lines and wires, as weB as for all uses specified in the
case of sewer easements. !
(iv) Entry WaylEasements. (EWE) are hereby created in the area of the Entry
Ways for the use ofDeclarant, the Architectural Review Board and the Corporation for the
installation, operation and/maintenance of the Entry Ways.
(v) Landscapirtg Easements. (LE) are created for the use by Declarant, the
Architectural Review BOa1:d and the Corporation for the planting and maintenance of trees,
shrubs and other planting~.
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(vi) Non-AcceSs Easements. are depicted on the Plat and are created to preclude
access from certain Lots to abutting rights-of-way across the land subject to such easements. ,
No planting shall be done, /md no hedges, walls, or other improvements shall be erected or
maintained in the area of s~ch easements except by the Declanmt during the Development
Period and, thereafter, by th!:, Association. No fences shall be erected or maintained in the area
of such easements. :
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(vii) Sign Easen~ents. There are strips ofgrounds shown on the Plat and reserved
for mounding easements, la1dscape easements, and sign easements. Declarant hereby reserves
unto itself during the Develbpment Period and thereafter unto the Association, such easements
for the purposes ofprovidin~ signs which either (I) advertise the Property, and the availability
ofLots the identity of partid,ipating builders, or events, or (ii) identity the Property. Declarant
reserves unto itstM during the Development Period and thereafter unto the Association, the
exclusive and sole right to erect signs and install landscaping, mounding, and screening within
these strips of ground shov.jn on the Plat as landscaping, mounding, and sign easements. No
planting shall be done, an~ no hedges, walls, or other improvements shall be erected or
maintained in the area of spch easements except by the Declarant during the Development
Period and, thereafter, by th:e Association. No fences shall be erected or maintained in the area
of such easements, except ~s may be installed by the Declarant.
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(vii) Community Area Access Easement -The Declarant and the
Corporation shall have an u~defined easement over any and all Lots for the purpose ofgaining
access to any Community tea in order to maintain or repair said Community Area.
All easements me*tioned herein include the right ofreasonable ingress and egress for
the exercise of other rightS reserved. No structure, including fences, shall be built on any
drainage, sewer or utility easement, but a paved driveway necessary to provide access to a Lot
from a public street or Ro1uJway shall not be deemed a "structure" for the purpose of this
Restricti on. !
(b) Gem:ral E~sel]1e!l!. There is hereby created a blanket easement over, across,
through and under the P~operty for ingress, egress, installation, replacement, repair and
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maintenance of undergrouPd utility and service lines and systems, including but not limited
to water, sewers, gas, telephones, electricity, television, cable or communication lines and
systems. By virtue of thill easement it shall be expressly permissible for Declarant or the
providing utility or servie¢ company to install and maintain facilities and equipment on the
Property and to excavatd, for such purposes if Declarant or such company restores the
disturbed area. All such Jjestoration shall be limited to re-seeding and re-grading only and
Declarant shall be undernb obligation to repair orreplace any improvements or landscaping.
No sewers, electricallin~s, water lines, or other utility service lines or facilities for such
utilities may be installed or relocated in the Property except as proposed and approved by
Declarant prior to the co*veyance of the first Lot in the Property to an Owner or by the
Architectural Review Boljrd thereafter. Should any utility furnishing a service covered by
the general easement her~provided request a specific easement by recordable document,
Declarant or the COlporapon shall have the right to grant such easement on the Property
without conflicting with the terms thereof. This blanket easement shall in no way affect any
other recorded easements! on the Property, shall be limited to improvements as originally
constructed, and shall not cover any portion of a Lot upon which a Residence has been
constructed. ,•
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(c) Public HeAlth and Safety Easements. An easement is hereby created for the
benefit of, and granted tOt all police, fire protection, ambulance, delivery vehicles, and all
similar Persons to enter upon the Commlmity Area in the performance of their duties. ,
(d) Drainage Board Easement. An easement is hereby created for the benefit of,
and granted to, the Drainage Board to enter the Property and all Lots therein to the extent
necessary to exercise its r1ghts with respect to all or any part ofthe Drainage System which
is included within any leg;1 drain. .
(e) Crossing Underground Easements. Easements utilized for underground service
may be crossed by drive'lvays, walkways provided prior arrangements are made with the
utility company furnishing service. Such easements as are actually utilized for underground
service shall be kept clear of all other improvements, including buildings, patios, or other
pavings, other than cros~'ings, driveways, walkways and neither Declarant nor any utility
company using the easements shall be liable for any damage done by either ofthem or their
assigns, agents, employeqs, or servants to shrubbery, trees, flowers or other improvements of
the Owner located on thei
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land covered by said easements.
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(f) Declarant's Easement to Correct Drainage. For a period of ten (10) years from
the date ofconveyance otithe first Lot in the Property, Declarant reserves a blanket easement
and right on, over and Ijuder the ground within the Property to maintain and to correct
drainage of surface water in order to maintain reasonable standards of health, safety and
appearance. Such right 6xpressly includes the right to cut any trees, bushes or shrubbery,
make any grading of theisoil, or to take any other similar action reasonably necessary. If
such grading or cutting oflrees, bushes or shrubbery is in an area designated on the Plat as a
Drainage Easement. the~ Declarant's obligation to restore the affected real estate shall be
limited to Te-grading and! fe-seeding, and neither the Declarant nor its agents, employees or
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assignees shall be liable f4r any damage or destruction to any improvements, structures or
fencing located on or in >juch exi~ting Drainage Easem~nt. If such grading or cutting of
trees, bushes or shrubbe~ IS not m an area already deSIgnated on the Plat as a Dramage
Easement, Declarant will restore the affected property to its original condition as nearly as
practicable. Declarant sh4ll give reasonable notice of is intention to take such action to all
affected Owners, unless mthe opinion of Declarant an emergency exists which precludes
such notice. Ifthe drainagb restriction is a result of action or inaction ofthe Lot owner or its
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agents the, cost to correct ife drainage shall be paid by the Lot owner and may become a lien
on the property. !
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(g) Water Retclntion. The Owner of each Lot, by acceptance of a deed thereto,
consents to the temporary ~torage (detention) of storm water within the drainage easements
(DE) on such Owner's Lo~.
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13. Declarant's Use During Construction. Notwithstanding any provisions to the contrary
contained herein or in any other iI$trument or agreement, Declarant or its sales agents or contractors
may maintain during the period 1f construction and sale of Lots and Residences in the Property,
upon such portion thereof as is oWfed or leased by Declarant, such facilities as in the sole opinion of
Declarant may be reasonably required, convenient or incidental to the construction and sale of Lots
and Residences, including, but without limiting the generality thereof, a business office, storage area,
construction yards, signs, model ~esidences and sales offices.
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14. Enforcement. Th~ Corporation, any Owner or Declarant shall have the right to'
enforce, by proceeding at law or i';' equity, all restrictions, conditions, covenants, reservations, liens
and charges nOw or hereafter imp,osed by the provisions of this Declaration, but neither Declarant
nor the Corporation shall be liablp for damage or any kind to any Person for failure either to abide
by, enforce or carry out any ofth~Restrictions. No delay or failure by any Pen.on to enforce any of
the Restrictions or to invoke any ~vailable remedy with respect to a violation or violations thereof
shall under any circumstances be :deemed or held to be a waiver by that Person ofthe right to do so
thereafter, or an estoppel of that iPerson to assert any right available to him upon the occurrence,
recurrence or continuation of an,y violation or violations of the Restrictions. In any action by
Declarant, the Corporation or an JOwner to enforce this Declaration, such party shall be entitled to
recover all costs of enforcement, Including attorneys' fees, ifit substantially prevails in such action.
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15. Approvals by Dedarant. As long as there is a Class B Member, the following actions
shall require the prior approval o~Declarant: the dedication or transfer ofthe Community Area; the
merger or consolidation of the Prpperty with other real estate; mortgaging ofthe Community Area;
amendment ofthis Declaration; ~d changes in the basis for assessment or the amount, use and time
of payment of the Initial Capital f'\ssessment.
16. Amendments.
(a) Generally.1 This Declaration may be amended at any time by an instrument
signed by both (i) the app~opriate officers ofthe Corporation acting pursuant to the authority
granted by not less than !two-thirds (2/3) of the votes of the Class A members cast at a
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meeting duly called for tbdpurpose of amending this Declaration and, (ii) the Declarant, so
long as the Declarant still ~wns at least one (I) Lot.
(b) By Declaraht. Declarant hereby reserves the right unilaterally to amend and
revise the standards, covehants and restrictions contained in this Declaration during the
period prior to December i 31, 2016. Such amendments shall be in writing, executed by
Declarant, and recorded ~ith the Recorder of Hamilton County, Indiana. Declarant shall
give notice in writing to sych Owners and Mortgagees of any amendments. Except to the
extent authorized in Pamgraph 15(b), Declarant shall not have the right at any time by
amendment ofthis Declara;tion to grant or establish anv easement through, across or over any
Lot which Declarant has p~eviously conveyed without the consent ofthe Owner ofsuch Lot.
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(c) Effective Date. Any amendment shall become effective upon its recordation in the
office of the Recorder of Hamilton County, Indiana.
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17. Interoretation. 1lhe underlined titles preceding the various paragraphs and
subparagraphs ofthis Declarationiare for convenience ofreference only, and none of them shall be
used as an aid to the constructio~ of any provision of this Declaration. Wherever and whenever
applicable, the singular form of ~ny work shall be taken to mean or apply to the plural, and the
masculine from shall be taken to mean or apply to the feminine or to the neuter.
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18. Duration. The foiegoing covenants and restrictions are for the mutual benefit and
protection ofthe present and fu~e Owners, the Corporation, and Declarant, and shall run with the
land and be binding on all partie~ and all Persons claiming under them until January I, 2025, at
which time said covenants and res:trictions shall be automatically extended for successive periods of
ten (10) years, unless changed in Whole or in part by vote ofthose Persouswho are then the Owners
of a majority ofthe Lots in the PToperty.
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19. Severability. EveJy one of the Restrictions is hereby declared to be independent of,
and severable from, the rest ofth4 Restrictions and of and from every other one ofthe Restrictions,
and ofand from every combinatio,'n ofthe Restrictions. Therefore, ifany ofthe Restrictions shall be
held to be invalid or to be unenfor,ceable, or to lack the quaJily ofrunning with the land, that holding
shall be without effect upon the vlalidity, enfurceability or "running" quality of any other one of the
Restrictions. .
20. Non-Liability ofDeclarant. Declarant shall not have any liability to an Owner or to
any other Person with respect t~ drainagc on, over or under a Lot. Such drainage shall be the
responsibility of the Owner of the Lot upon which a Residence is constructed and of the builder of
such Residence, and an Owner, by an acceptance of a deed to a Lot, shall be deemed to agree to
indemnify and hold Declarant m;e and harmless from and against any and all liability arising from,
related to. or in connection wi$ drainage on, over and under the Lot described in such deed.
Declarant shall have no duties, bbligations or liabilities hereunder except such as are expressly
assumed by Declarant, and no duty of, or warranty by, Declarant shall be implied by or inferred from
any term or provision of this De¢laration.
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IN TESTIMONY WHEREoF, Witness the signature of Declarant as of the date set forth
Iabove. '
"DECLARANT"
BRIGHTON WOODS CORPORA nON
~/J.~By:
Raymond H. Roehling, President
STATE OF INDIANA )
) ss:
COUNTY OF HAMILTON )
Before me the undersigned, a Notal)' Public in and for said County and State, personally
appeared Raymond H. Roehling,ibeen first duly sworn by me upon his oath, says that the facts
alleged in the foregoing iDstrumeAt are true.
! ...L
Witness my hand and Not~al Seal this '" -day of ~ , 199 ~
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Printed: K=-reN L: Roeh I"N?
~~__ "s:", i?~~6-->.
My Commission Expires: -='--_+__---'-.2-'-0_08 Residing in d~~--e;ounty,
Indiana
Prepared by
Charles D. Frankenberger
NELSON & FRANKENBERGER
3021 East 98th Street .
Suite 220
Indianapolis, IN 46280
(317) 844-0106
COVlBrigblon
Revised OclOber 6. 1'199
Revised April4~ 2000
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STOEPPELWERTH Fax:~17-349-5942 Hpr b AJUV i 4 :.'V
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Part of the Southeast Quarter of Set]tion 33. part of the Southwest Quarter and part of the
Northwest Quarter of Section 34. ~in Township 18 North. Range 4 East in Clay TOWll$bip,
Hamilton Coonty, Indiana being m<jre particularly described as fonows:
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Commencing at the Southeast com~r of said Southeast Quarter of Section 33; thence North
00 degrees 15 minutes 27 seconds ~(assumed bearing) along the East line of said
Southeast Quarter 394.75 feet to thf PONT OF BEGINNING of this description; thence
continuing North 00 de~15 mi~tes 27 seconds East along said ~line 1365.14 feet;
I'l\ence North 89 degrees 39 minBtef 43 seconds West parallel With the North line of said
Southeast Quarter 740.00 feet; ther(ce North 00 degrees is minutes 27 seconds ~parallel
with the aforesaid East line 31.37 fl:et to a point on the Southeast right-of-way of Hu.el Den
Partway as per City of Carmel's ~of Public Works plans for Project No. 97.{JZ; thence
North 25 degrees 20 minutes 18 ~East along said Southeast right-of-way line 94254
feet to a point on the aforesaid North line; thence South 89 degrees 39 minutes 43 seconds
East along said North line 340.46 fF! to the Northeast comer of said Southeast QuarteT
Section, said point also being the ~uthwest comer of the Northwest Quarter of said Sectiou
34 and the Northwest comer of thelSouthwest Quarter of said Section 34; thence North 00
degrees 18 minutes 15 seconds ~along the West line of said NorIhwest Quarter 298.14
feet; thence South 89 degmes 36 rqiDutes J2 degrees East parallel with the South line of said
Northwest Quarter 181.50 feet; the~ee South 00 degrees 18 minutes 15 seconds West parallel
with the aforesaid West line 298.14 feet to a point on !be aforesaid South line of said
Northwest Quarter, said point alsoibeing on the North line of said Southwest Quarter; thence
South 00 degrees 15 minutes 27 se\:onds West parallel with the West line of said Southwest
Quarter 2250.74 feet; thence NortH 89 degrees 36 minutes 12 second~ West parallel with the
South line of said Southwest Quarter 181.50 feet to the place of beginning, containing 21.747
acres, more or less subject to allier highways easements, rights-of-way, and other
restrictions of record. I
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