EditARTICLE 3 USE RESTRICTIONS
3.1 Architectural Control. 3.1.1 All references to "Board" in this Section 3.1 and elsewhere in this Declaration referring to matters of architectural control and design approval shall mean and refer to the Architectural Committee if one is designated by the Board pursuant to Section 5.10 below.
3.1.2 No excavation or grading work shall be performed on any Lot without the prior written approval of the Board, except as is reasonably necessary for Private Yard and Board approved Public Yard landscaping. All such excavation and grading, whether for landscaping or any other purpose, shall be consistent at all times with the drainage plans on file with the City and good engineering practices.
3.1.3 No construction, installation, addition, alteration, repair, change or other work of Improvement which is Visible from Neighboring Property or in any way alters the exterior appearance of any part of a Lot and/or any Improvements located thereon from its/their appearance on the date the City first issues a certificate of occupancy for the Residential Dwelling on the Lot (a "Modification"), shall be made or done without the prior written approval of the Board. Any Owner desiring approval of the Board for such Modification shall submit to the Board a written request for approval specifying in detail the nature and extent of the Modification which the Owner desires to perform. Any Owner requesting the approval of the Board shall also submit to the Board any additional information, plans and specifications which the Board may request. The Board shall send the Owner requesting the approval a written notice (the "Architectural Submission Notice") stating that the Board has received the approval request. In the event that the Board fails to approve or disapprove an application for Modification approval within 60 days after the Board has given the Owner its Architectural Submission Notice, the Board shall be deemed to have disapproved the requested Modification. The approval by the Board of any Modification pursuant to this Section 3.1 shall not be deemed a waiver of the Board's right to withhold approval of any similar Modification subsequently submitted for approval.
3.1.4 The Board may disapprove plans and specifications for any Modification which must be submitted to the Board for approval pursuant to this Section 3.1 if the Board determines, in its sole and absolute discretion, that the proposed Modification: (i) would violate any provision of this Declaration; (ii) does not comply with any Architectural Rule; (iii) is not in harmony with existing Improvements in the Project or with Improvements previously approved by the Board but not yet constructed; (iv) is not aesthetically acceptable; (v) would be detrimental to or adversely affect the appearance of the Project; or (vi) is not otherwise in accord with the general plan of development for the Project. The Board may disapprove a proposed Modification even though the plans and specifications may be in substantial compliance with this Declaration and any Architectural Rules if the Board, in its sole and absolute discretion, determines that the proposed Modification, or some aspect or portion thereof, is undesirable or unattractive. Decisions of the Board may be based on purely aesthetic considerations. Each Owner acknowledges that such determinations are necessarily subjective in nature and that the decision of the Board shall be final on all matters submitted to it pursuant to this ARTICLE 3. Notwithstanding the foregoing, if a "disapproval" determination is made by an Architectural Committee appointed by the Board, pursuant to Section 5.10 of this Declaration, the Owner may appeal the decision to the Board in accordance with Architectural Rules adopted by the Board, and, in such event, the Modification may be approved if a resolution is unanimously adopted by the Board within 60 days after the appeal is taken to the Board. In the event the Board has not adopted a resolution approving the Modification within 60 days after the appeal is taken to the Board. the Board shall be deemed to have disapprove the requested Modification. If the Board or any Committee disapproves or is deemed to disapprove plans for a Modification after the Architectural Submission Notice or any appeal, as applicable, the ruling body shall specify the reasons for such disapproval and advise-the owner, where feasible, of any corrections or changes that may be made to allow the submission to be approved.
3.1.5 Upon receipt of approval from the Board for any Modification, the Owner who had requested such approval shall proceed to perform or cause to be performed the Modification approved by the Board as soon as practicable and shall diligently pursue such work so that it is completed as soon as reasonably practicable and within such time as may be prescribed by the Board.
3.1.6 Any change, deletion or addition to the plans and specifications approved by the Board for the Modification must be approved in writing by the Board.
3.1.7 The Board shall have the right to charge a fee for the services of any professional consultant or expert retained by the Board to review a request for approval of any Modification pursuant to this Section 3.1, which fee shall be payable by the Member making application at the time the application for approval is submitted to the Board.
3.1.8 All Improvements constructed on Lots shall be of new construction, and no buildings or other structures shall be removed from other locations and placed on any Lot as part of the original construction of Improvements or as part of any Modification.
3.1.9 Only a Lot Owner may request approval of a Modification. Notwithstanding anything to the contrary contained in this ARTICLE 3 or elsewhere in this Declaration, the provisions of this Section 3.1 do not apply to, and approval of the Board shall not be required for, any Modification made by, or on behalf of, Declarant.
3.1.10 The approval required of the Board pursuant to this Section 3.1 shall be in addition to, and not in lieu of, any approvals or permits which may be required under any federal, state or local law, statute, ordinance, rule or regulation. Before commencing any Modification and, after receiving Board approval, the Owner shall provide the Board with a copy of any applicable permits required by law for the Modification.
3.1.11 The approval by the Board of any Modification pursuant to this Section 3.1 shall not be deemed a warranty or representation by the Board as to the quality of such Modification or that such Modification conforms to any applicable building codes or other federal, state or local law, statute, ordinance, rule or regulation.
3.1.12 The Board may condition its approval of plans and specifications upon the agreement of the Owner submitting such plans and specifications to: (i) commence and complete the Modification within reasonable time frames established by the Board; (ii) obtain and maintain comprehensive general liability insurance; and (iii) furnish to the Association a bond or other security acceptable to the Board in an amount to be determined by the Board. The bond or other security shall be in an amount reasonably sufficient to: (I) assure the completion of the proposed Modifications or the availability of funds adequate to remedy any nuisance or unsightly conditions occurring as a result of the partial completion of such Modifications, and (11) repair any damage which might be caused to an Area of Association Responsibility as a result of such work. Any such bond shall be released or security shall be fully refundable to the Owner upon: (a) the completion of the Modifications in accordance with the plans and specifications approved by the Board; and @) the Owner's written request to the Board, provided that there is no damage caused to an Area of Association Responsibility by the Owner or its agents or contractors.
3.1.13 If the plans and specifications pertain to a Modification which is within an Area of Association Responsibility so that the Association is responsible for maintenance, repair and replacement of such Modification, the Board may condition its approval of the plans and specifications for the proposed Modification on the agreement of the Owner to reimburse the Association for the future cost of the repair, maintenance or replacement of such Modification.
3.1.14 No submittal to the Board pursuant to this ARTICLE 3 or elsewhere in this Declaration shall be deemed to have been received by the Board unless a receipt for the submittal (setting forth in detail the matters included therein) has been personally signed for by a member of the Board or date stamped or signed for by the Managing Agent. It is the submitting Owner's responsibility to ensure that the Board or the Managing Agent has received and signed for the applicable submittal and that the Board has approved or failed to disapprove the submittal within the applicable time period before proceeding with any Modification.
3.2 Temporary Occupancy and Temporary Structures. No trailer, basement of an incomplete building tent, shack, garage, and no temporary buildings or structures of any kind shall be used at any time as a Residential Dwelling, either temporarily or permanently. Temporary structures used during the construction of Improvements or Modifications approved by the Board shall be removed immediately after the completion of construction.
3.3 Nuisances: Construction Activities/Maintenance of Improvements. No rubbish or debris of any kind shall be placed or permitted to accumulate upon or adjacent to any Lot or any other portion of the Project and no odors or loud noises shall be permitted to arise or emit therefrom, so as to render any portion of the Project or activity thereon, unsanitary, unsightly, offensive or detrimental to any other portion of the Project or the Owners or Residents. No nuisance shall be permitted to exist or operate upon any Lot or any other portion of the Project so as to be offensive or detrimental to any other portion of the Project or to its Owners or Residents. Without limiting the generality of any of the foregoing provisions, no exterior speakers, horns, whistles, bells or other sound devices, except ordinary and customary security devices used exclusively for security purposes, shall be located, used or placed on any Lot or any other portion of the Project. Normal construction activities and parking in connection with the building of Improvements or Modifications on a Lot or other portion of the Project shall not be considered a nuisance or otherwise prohibited by this Declaration, but Lots and all other portions of the Project shall be kept in a neat and tidy condition during construction periods and trash and debris shall not be permitted to accumulate. The Board, in its sole discretion, shall have the right to determine the existence of any such nuisance. The provisions of this Section 3.3 shall not apply to construction activities of Declarant. No Improvement on any Lot shall be permitted to fall into disrepair, and each such Improvement shall at all times be kept in good condition and repair and adequately painted, or otherwise finished. In the event any Improvement is damaged or destroyed, then, subject to the approvals required in Section 3.1 above, such Improvement shall be immediately repaired or rebuilt or shall be demolished. Any Improvement not so maintained as provided herein and in ARTICLE 7 below shall be deemed a nuisance and shall afford the Association and the Owners the remedies set forth in this Declaration.
3.4 Diseases and insects. No Person shall permit any thing or condition to exist upon any Lot or other portion of the Project which shall induce, breed or harbor infectious plant or animal diseases or noxious insects.
3.5 Antennas. Subject to the provisions of Section 3.15 below regarding the protected class of satellite dishes under the FCC Rules, no antenna or other device for the transmission or reception of television or radio signals or any other form of electromagnetic radiation including, without limitation, satellite or microwave dishes, shall be erected, used, or maintained on any Lot without the prior written approval of the Board who may limit or restrict the placement of such antennas or other devices absent appropriate screening and architectural conformity.
3.6 Mineral Exploration. No Lot or other portion of the Project shall be used in any manner to explore for or to remove any water, oil or other hydrocarbons, minerals of any kind, gravel, earth or any earth substance of any kind, except for grading and excavation work and the removal of fill material including, but without limitation, gravel, rock and sand, in connection with the construction of Residential Dwellings or other Improvements or Modifications.
3.7 Environmental Restrictions. All Owners and Residents in the Project shall be responsible for complying with all federal and state environmental and health laws and for causing their Invitees to so comply. Without limiting the foregoing, no Person may dispose of, transport, or store Hazardous Materials on a Lot or on the Common Area other than small amounts of ordinary household non-combustible cleaning agents maintained by a Resident on his Lot or ordinary amounts of gasoline maintained to run lawn mowers and other gas powered Lot maintenance equipment. In no event may any Person dispose of any Hazardous Materials, including without limitation, motor oil, hydrocarbons, or other petroleum products, in or down a dry well within or adjacent to the Project.
3.8 Trash and Recycling Collection. No Person shall place or keep garbage, trash, or other recyclable materials on the Public Yard of a Lot except in covered canisters or barrels supplied by the City or otherwise designated by the Board. All rubbish, trash, garbage and recyclable materials shall be regularly removed from Lots and other portions of the Project to prevent odors and the attraction of vermin or other pests. In no event shall such containers be maintained at the collection point on a Public Yard of a Lot or at any location Visible From Neighboring Property except to make the same available for collection in accordance with City ordinances or Association Rules and then only for the shortest time reasonably necessary to effect such collection, not exceeding 12 hours before or after collection. The Association shall have the right to enact monetary fines as provided in the Project Documents for violation of this section. No indoor or outdoor incinerators shall be kept or maintained on any Lot or other portion of the Project.
3.9 Clothes Drying Facilities. No outside clotheslines or other outside facilities for drying or airing clothes shall be erected, placed or maintained on the Public Yard of a Lot or other portion of the Project (including Private Yards) so as to be Visible from Neighboring Property.
3.10 Utility Service. Subject to the further provisions of Sections 3.15 below, no lines, wires, or devices for the communication or transmission of electric current or power, including telephone, television, and radio signals, shall be erected, placed or maintained anywhere in or upon any Lot or other portion of the Project unless the same shall be contained in conduits or cables installed and maintained underground or concealed in, under or on Improvements or Modifications constructed by Declarant and/or approved by the Board. No provision of this Declaration shall be deemed to forbid the erection of temporary power or telephone structures incident to the construction of Improvements or Modifications by Declarant and/or approved by the Board.
3.11 Overhead Encroachments. No tree, shrub, or planting of any kind on any Lot or other portion of the Project shall be allowed to overhang or otherwise to encroach upon any sidewalk, street, pedestrian way or other area from ground level to a height of 8 feet.
3.12 Residential Use/Leasing Restrictions. 3.12.1 Subject to the provisions of any applicable federal or state Fair Housing Acts, all Residential Dwellings shall be used, improved and devoted exclusively to residential use by a Single Family. Subject to such Fair Housing Acts, no trade or business may be conducted on any Lot or in or from any Residential Dwelling, except that an Owner or other Resident of a Residential Dwelling may conduct a business activity within a Residential Dwelling so long as: (i) the existence or operation of the business activity is not readily apparent or detectable by sight, sound or smell from outside the Residential Dwelling; (ii) the business activity conforms to all applicable zoning ordinances or requirements for the Project; (iii) the business activity only results in occasional or minimal time duration visits or contact with non Residents coming onto the Lot and does not involve the door-to-door solicitation of Residents; (iv) the trade or business conducted by the Owner or Resident does not require more than 1 employee working in or from such Residential Dwelling unless such additional employees are also lawful Residents of the Residential Dwelling; (v) the volume of vehicular or pedestrian traffic generated by such trade or business does not result in traffic congestion or parking violations; (vi) the trade or business does not use flammable liquids or Hazardous Materials in quantities not customary for residential use; and (vii) the business activity is consistent with the residential character of the Project, does not attract Invitees during evening or non-standard local business hours and does not constitute a nuisance or a hazardous or offensive use or threaten security or safety of other Residents in the Project, as may be determined from time to time in the sole discretion of the Board. The terms "business" and "trade" as used in this Section 3.12 shall be construed to have ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work or activity undertaken on an ongoing basis which involves the provision of goods or services to Persons other than the provider's family and for which the provider receives a fee, compensation or other form of consideration, regardless of whether: (i) such activity is engaged in full or part time; (ii) such activity is intended to or does generate a profit; or (iii) a license is required for such activity.
3.12.2 The leasing of a Residential Dwelling by the Owner thereof shall not be considered a trade or business within the meaning of this Section 3.12 and the Owner of a Lot shall have the right to lease his Lot and the Residential Dwelling thereon, provided that: (i) the lease is in writing; (ii) all Residents occupying the Residential Dwelling under the Lease, including the Lessee, are specifically made subject to the covenants, conditions, restrictions, easements, limitations and uses contained in this Declaration, the Bylaws and any Association Rules; (iii) the lease shall not be for a period of less than 6 months; (iv) the Owner shall be obligated to provide a copy of the lease to the Association prior to the Lessee's occupancy of the Residential Dwelling; and (v) no lease of any Lot or any portion of a Residential Dwelling in the Project shall be entered into to be effective prior to that date which is 12 months after the initial Purchaser has acquired fee title to the Lot from Declarant. The Board may give notice that a lease or proposed lease violates this Section 3.12.2, and may pursue all remedies available to the Association to enforce such leasing restriction. Home exchange programs and foreign student exchange programs shall not be construed as leasing as long as there is no or nominal consideration passing between the parties to such transaction and the Residents otherwise abide by the Project Documents. For purposes of Section 6.15 below, a lease shall be deemed a "transfer" and subject to the Transfer Fee, which shall be paid concurrently with the delivery of the lease to the Association as provided above by the Member entering into the Lease as "landlord" or "lessor" thereunder.
3.13 Animals. No animals, bird, fowl, poultry, reptile or livestock may be kept on a Lot temporarily or permanently, except for a reasonable number of dogs, cats, common domestic birds such as parakeets, cockatiels and parrots, or similar household pets kept, bred or raised thereon solely as domestic pets and not for commercial purposes. All dogs, cats or other household pets permitted to be kept on the Lots under this Section 3.13 shall be confined to their owners' Lots in which they are residing or visiting, except that dogs, cats or other pets capable of being walked on a leash may be permitted to leave their Lot without being confined if such animals are kept at all times on a leash not to exceed 6 feet in length or are otherwise under a Resident's control and are not permitted to enter upon any other Lot. It shall be the responsibility of the Residents of the Lot to immediately remove any droppings fiom pets residing or visiting their Lot. No household pet permitted on a Lot under this Section 3.13 shall be allowed to make an unreasonable amount of noise or to become a nuisance. No structure for the care, housing or confinement of any permitted household pet shall be maintained so as to be Visible fiom Neighboring Property. Upon the written request of any Resident, the Board shall conclusively determine, in its sole discretion, whether for the purposes of this Section 3.13, a particular animal constitutes a household pet pursuant to this Section 3.13 or whether such animal is a nuisance or making an unreasonable amount of noise. Any decision rendered by the Board shall be enforceable in the same manner as other restrictions set forth in this Declaration. The right of Residents to maintain a reasonable number of house pets pursuant to this section is expressly subject to the right of the Board to prospectively restrict the size and number of dogs or other pets which may be maintained or kept on the Lots. In that event, those pets that do not satisfy the newly adopted Association Rules and are then living with Residents on Lots shall be deemed to be in compliance with the newly adopted Association Rules for as long as such pets continue living with Residents on Lots, if such pets otherwise conform to this Section 3.13 and are not a nuisance.
3.14 Machinery and Equipment. No machinery or equipment of any kind shall be placed, operated or maintained upon or adjacent to any Lot, or any other portion of the Project, except: (i) such machinery or equipment used in connection with the initial construction of an Improvement or Modification; (ii) such machinery that is used solely within the interior of a Residential Dwelling (including an enclosed garage) and does not emit noise of a decibel level that would pose a nuisance to adjacent Lots; (iii) ordinary and customary machinery or equipment used in the regular or routine maintenance of a Residential Dwelling or Lot such as a lawn mower; or (iv) such machinery or equipment which Declarant or the Association may require for the improvement, operation and maintenance of the Project.
3.15 Roof Structures and Equipment. No solar units or panels, heating, air-conditioning or ventilation equipment, or any other equipment or structures shall be located or installed on any roof of a Residential Dwelling or other Improvement on a Lot except as expressly permitted herein and/or except as may be initially installed by Declarant. The Board shall grant a variance for roof-top or other solar panels or other solar equipment Visible from Neighboring Property if attractively screened in accordance with standards established by the Board, further subject to applicable federal or state energy conservation laws governing the installation of solar equipment on Residential Dwellings. In addition, the Association may not prohibit or unduly or unreasonably restrict the placement of satellite dishes and antennas of the types covered by the Federal Communications Commission rules promulgated pursuant to the Telecommunications Act of 1996, as amended from time to time ("FCC Rules"). However, nothing shall preclude the Association from adopting reasonable safety and/or architectural aesthetics Rules which do not impede the Owner's ability to obtain solar power or to obtain adequate reception from a protected class of satellite dishes or antennas within the scope of the FCC Rules. Without limiting the foregoing, all satellite dishes or antennas within the scope of the FCC Rules shall be ground-mounted and placed in the Private Yard of a Lot unless, as a result of such placement, the Owner is not able to obtain a satisfactory signal as defined in the FCC Rules.
3.16 Window Treatments. Each Purchaser shall cause all windows within his Residential Dwelling to be covered with appropriate window treatments within 90 days after first occupancy by a Resident. No reflective materials, including but not limited to, aluminum foil, reflective screens or glass, mirrors or similar-type items or bed sheets shall be installed or placed on the outside or inside of any windows. The exterior of all drapes, curtains or other window coverings shall be white, off-white, beige or natural wood-tone in color or such other colors as permitted by the Board.
3.17 Signs/Flagpoles; Flag Display.3.17.1 No emblem, logo, sign or billboard of any kind whatsoever (including, but not limited to, commercial, "for sale," "for rent" and similar signs) which are Visible from Neighboring Property shall be erected or maintained on any Lot except: (i) signs required by legal proceedings or by applicable law; (ii) certain "political signs" as described in Section 3.17.2 below; (iii) certain flagpoles and flags as described in Section 3.17.3 below; (iv) Residential Dwelling identification signs not exceeding 6 x 12 inches in size; (v) one standard size realty company "for sale" sign (after Declarant has conveyed all of its Lots as provided below); (vi) Project identification signs and other marketing signs installed by Declarant or the Association; (vii) one small alarm company sign located near the front door of a Residential Dwelling; and (viii) such other signs as are originally installed by Declarant and/or approved by the Board. "For lease" signs are expressly prohibited in this Project at any time and "for sale" signs are expressly prohibited while Declarant owns any Lots in the Project.
3.17.2 The foregoing limitation on signs shall not preclude the placement of a "political sign" on a Lot as defined in A.R.S. 833-1808; provided, further however, that there may not be more than one political sign on a Lot at any one time, the dimensions of such sign shall not exceed 24 inches by 24 inches, and the political sign may not be displayed on the Lot more than 45 days prior to or 7 days after the election proceeding to which it applies. If the applicable political sign ordinance of the City, as amended from time to time, is at any time less restrictive than the limitations contained in this Section 3.17, then the restrictions of the City ordinance on political signs shall apply in lieu of this Section 3.17 and this Section 3.17 shall be deemed automatically amended as necessary to comply with such City ordinance.
3.17.3 A Member may display a flag allowed by A.R.S. 833-1808 on his Lot consistent with the provisions of that statute. The Association shall adopt reasonable Rules regarding the display of such flag, including regulating the size and location of flagpoles, as long as such Rules do not result in the prohibition of the installation of the flagpole or unduly limit displaying such flag. In no event may a flagpole be installed on a Lot until the height and location of the pole and the flag to be display thereon have been approved by the Board.
3.18 Restriction on Subdivision, Restrictions and Rezoning. No Lot shall be further subdivided or separated into smaller Lots or parcels or divided into a "timeshare property" as that term is defined in A.R.S. 832-2197, as amended from time to time, and no portion less than all of any such Lot shall be conveyed or transferred by an Owner other than Declarant to another Owner, without the prior written consent of the Board. No further covenants, conditions, restrictions or easements shall be Recorded by any Person other than Declarant or the Board without the provisions thereof having first been approved by the Board. No application for rezoning, variances or use permits pertaining to any Lot shall be filed with any governmental authority by any Person other than Declarant or the Board, unless the application has been approved by the Board and the proposed use otherwise complies with this Declaration.
3.19 Commercial Vehicle Restrictions/Family Vehicles Defined/Public Service and Safety Vehicles. 3.19.1 No truck (other than a Family Vehicle truck as defined below), mobile home, bus, travel trailer, tent trailer, trailer, camper shell, detached camper, recreational vehicle, boat, boat trailer, or other similar equipment or vehicle (hereinafter "Commercial Vehicles") may be parked, maintained, constructed, reconstructed or repaired on any Lot or Common Area (including driveways or Public Yards of Lots and any Common Area private drives or private accessway) so as to be Visible from Neighboring Property without the prior written approval of the Board, except for: (i) the temporary parking of any Commercial Vehicle on a Lot, private drive, or private accessway for loading and unloading for a period of not more than 24 consecutive hours; (ii) temporary construction trailers or facilities maintained during, and used exclusively in connection with, the construction of any Improvement by the Declarant or any Improvement approved by the Board; and (iii) Commercial Vehicles parked completely within enclosed Residential Dwelling garages. A "Family Vehicle" means any domestic or foreign car, station wagon, sport wagon, pick-up truck of 1 ton or less capacity with camper shells not exceeding 7 feet in height measured from ground level, mini-van, jeep, sport utility vehicle, motorcycle and similar non-commercial and non-recreational vehicles that are used by a Resident for family and domestic purposes and which are used on a regular and recurring basis for basic transportation. The Board may, acting in good faith, designate a Commercial Vehicle as a Family Vehicle, if, prior to use, the Resident petitions the Board to classify the same as a Family Vehicle and the parking of such Vehicle on a Lot will not adversely affect the Project or the Residents. Family Vehicles and Commercial Vehicles are collectively referred to in this ARTICLE 3 as "Vehicles."
3.19.2 Notwithstanding anything in this ARTICLE 3 or elsewhere in this Declaration to the contrary, the Association may not prohibit a Resident employed by a public service corporation or public safety agency from parking a Vehicle on any Common Area private accessway or on the Public Yard driveway of a Lot if the Resident and the Vehicle otherwise meet the conditions of, and/or comply with, the provisions of A.R.S. 533-1809.
3.20 Further Vehicle and Parking Restrictions. 3.20.1 Except for emergency Vehicle repairs, no Vehicle (whether operable or inoperable) or other equipment shall be stored, constructed, reconstructed or repaired on a Lot or any other portion of the Project except within the enclosed garage of a Residential Dwelling. Without limiting the foregoing, a Vehicle or other equipment shall be deemed to be stored, inoperable and/or under repair if it is covered by a car cover, tarp or other material, has a flat tire that is not immediately replaced, does not have current license tags, and/or is not driven or moved under its own power on a weekly basis by a Resident of the Lot.
3.20.2 Subject to the further additional restrictions of Section 3.19 regarding Commercial Vehicle parking and Section 3.20.1 regarding stored or inoperable Vehicles: no Vehicle shall be parked on any Public or Private Yard, except for the driveway or attached garage of a Residential Dwelling.
3.20.3 No Vehicle may be parked at any time on a Tract that serves as a Common Area private drive providing access to the rear Lot situated garages; provided, however, that Invitees may temporarily park Family Vehicles on a Tract that serves as a Common Area private accessway providing the main access to the Residential Dwellings for a period not to exceed 8 consecutive hours.
3.20.4 The use of motorized mopeds, skateboards, go-peds, mini-bikes, scooters, miniature motorcycles or pocket bikes, and similar type devices of transportation that are not permitted to be driven or operated on City streets and/or on highways are expressly prohibited within this Project.
3.21 Towing of Vehicles/Other Enforcement. The Board shall have the right to have any Vehicle which is parked, kept, maintained, constructed, reconstructed or repaired in violation of the Project Documents and this ARTICLE 3 towed away or to restrict its movement by attaching a "boot" device to the wheel of the Vehicle at the sole cost and expense of the owner of the Vehicle. If the owner of a towed or "booted" Vehicle is not a Lot Owner and the Association directly incurs any expense because such towing or booting charges were not collected from the Vehicle owner for any reason, the Association may seek reimbursement for such expenses from the Lot Owner whose Resident or Invitee improperly parked the towed or booted Vehicle. Any expense incurred by the Association in connection with the towing or booting of any Vehicle shall be paid to the Association upon demand to the Lot Owner as an Enforcement Assessment pursuant to Section 6.6 below. In addition to levying an Enforcement Assessment for towing charges incurred by the Association and enforcing the Assessment in any manner permitted by law, the Board may pursue all other remedies set forth in Section 9.3 below, including, without limitation: (i) imposing monetary fines against Lot Owners (and/or their Residents) who are causing recurrent violations of the Vehicle parking restrictions of this Declaration in accordance with Rules adopted by the Association for the imposition of monetary fines; (ii) suspending the voting rights of or Association services to an Owner whose Lot and/or the Residents and Invitees thereon are in violation of the parking restrictions of this Declaration; (iii) filing a civil suit against an Owner and/or Resident to enjoin actions or behavior relating to the parking of Vehicles violative of this Declaration; and (iv) Recording a Notice of Violation against a Lot pursuant to Section 11.9 below in the case of continuing Vehicle or parking violations pertaining to that Lot. The Association shall not be liable for any damage to Vehicles towed pursuant to this Section 3.21.
3.22 Lighting. Except as initially installed by Declarant, no spotlights, flood lights or other high intensity lighting shall be placed or utilized on any Lot which will allow light to be directed or reflected in any manner on the Common Area or onto another Lot. All lighting or illumination sources shall be hooded or shielded in accordance with any applicable governmental light pollution, glare reduction and energy conservation standards.
3.23 Drainage. No Residential Dwelling or other Improvement or Modification thereto shall be constructed, installed, placed or maintained in any manner that would obstruct, interfere with or change the direction or flow of water in the Project as originally developed by Declarant including through any drainage easements set forth on the Plat, or for any Lot as shown on the drainage plans on file with the City.
3.24 Garages. Garages shall be used only for the parking of Vehicles and shall not be used or converted for living or recreational activities without the prior written approval of the Board. Garage doors shall be kept closed at all times when the garage is unattended. All Vehicles shall be parked in the garage, except that Family Vehicles may be parked on the driveway of a Residential Dwelling if the garage is already then occupied by the maximum capacity of Vehicles. In no event may an Owner or Resident use the garage for storage in such a manner that would block or impede the parking of any Vehicle.
3.25 Basketball Goals; Backboards. No basketball goal, pole, or backboard shall be attached to a roof and/or installed in a Public Yard of a Residential Dwelling. Except when in use, portable basketball goals, hoops or courts shall be stored in the garage or in a manner that is not Visible From Neighboring Property.
3.26 Planting and Landscaping/Installation and Maintenance. 3.26.1 Except for: (i) such planting and landscaping as may be installed by Declarant in accordance with the initial construction of Residential Dwellings on a Lot or (ii) Private Yard plantings and landscaping, no planting or landscaping shall be done and no fences, hedges or walls shall be erected or maintained on any Lot without the prior written approval of the Board. The Board shall have the power to adopt a list of prohibited plants and to amend this list from time to time. No plant identified on any such list of prohibited plants may be planted on any Public Yard or Private Yard. If Declarant does not install Public Yard landscaping in conjunction with the conveyance of a Lot and Residential Dwelling, then the Purchaser thereof (or any transferee of the Purchaser) shall install grass, trees, plants and other landscaping Improvements (together with any sprinkler or drip irrigation system sufficient to water the same) within 90 days after the date Declarant has originally conveyed the Lot to the Purchaser. All such landscaping must be installed in accordance with plans and specifications approved by the Board pursuant to Section 3.1 of this Declaration.
3.26.2 Each Owner of a Lot shall keep all shrubs, trees, hedges, grass and plantings of every kind located on: (i) his Lot, (ii) planted public rights-of-way between sidewalks and street curb in front of his Lot, if any, and (iii) any other public or private right-of- way or easement area which abuts the Owner's Lot and is located between the boundary line of his Lot and the paved area of any street, sidewalk, or similar area, neatly trimmed and shall keep all such areas properly cultivated and maintained and free of trash, weeds and other unsightly material; provided however, that the Owner shall not be responsible for any Area of Association Responsibility or for any area maintained by the City.
3.27 Community Privacy Measures. Each Owner understands and agrees that neither the Association (nor its officers, directors, employees, and agents) nor Declarant (nor its officers, directors, employees and agents) is responsible for the acts and omissions of any third parties or of any other Owner or Resident or their respective Invitees resulting in damages or injury to person or property. If, and to the extent, any common privacy measures, such as fencing, gating or monitoring certain Project areas, are installed, undertaken or adopted by the Association after the date of Recording of this Declaration, the cost of installation and maintenance of such features or facilities will be paid by the Association as a Common Expense Liability. Each Owner understands that any privacy measures that are in effect at the time he becomes an Owner may be abandoned, removed and/or modified by a majority vote of the Board. The commencement of any such devices, features, measures or controls shall not be deemed to be an assumption of any duty on the part of the Association or Declarant with respect to the Project and neither Declarant, the Board (nor any committee thereof) make any representation or warranty concerning the efficacy or effect of such devices.
3.28 Variances. The Board, may, at its option and in extenuating circumstances, grant variances from the restrictions set forth in this ARTICLE 3 if the Board determines in its discretion that: (i) a restriction would create an unreasonable hardship or burden on an Owner or Resident or a change of circumstances since the Recording of this Declaration has rendered such restriction obsolete and (ii) the activity permitted under the variance will not have any substantial adverse effect on the Owners or Residents of the Project. Such variances must be evidenced in writing and must be signed by a unanimous vote of the Board. If such variance is granted, no violation of the covenants, conditions and restrictions contained in this Declaration shall be deemed to have occurred with respect to the specific matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular provision hereof covered by the variance, and only for so long as the special circumstances warranting the variance exist, nor shall it affect in any way the Owner's and/or Resident's obligation to comply with all governmental laws and regulations affecting the use of his Lot. The Board shall have the right to condition the granting of a variance as it may determine in the Board's sole discretion, including, without limitation, making a variance temporary or permanent; or requiring the removal or replacement of a non- permanent or semi-permanent structure upon the sale or other conveyance of a Lot. Moreover, because of the unique facts and circumstances surrounding each variance request, the granting of a variance in one instance or under certain circumstances, terms and conditions does not mandate the granting of a variance under similar or related circumstances, terms or conditions if the experiences of the Association and the Project as a whole or the differences in circumstances (however slight) of a variance request fiom a previously approved variance lead the Board, in good faith, to disapprove a variance request in such instance. In no event, may the Board grant any variance that would create or cause the Association to be in violation of any City ordinance or development stipulation or in violation of any insurance policy limitation or restriction issued in favor of the Association and its Members.
3.29 No Warranty of Enforceability. While Declarant has no reason to believe that any of the restrictive covenants contained in this ARTICLE 3 or elsewhere in this Declaration are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to the present or future validity or enforceability of any such restrictive covenant. Any Owner acquiring a Lot in the Project in reliance on one or more of such restrictive covenants shall assume all risks of the validity and enforceability thereof and by acquiring the Lot agrees to hold Declarant harmless therefrom.