HomeMy WebLinkAboutREVISED CCR'S - 20-00798 - 977 McJon Ln - New SFR
FIRST AMENDMENT TO DECLARATION – Page 1
WHEN RECORDED RETURN TO:
DuPree Stewart Taylor & Morris
P.O. Box 723
Rexburg, Idaho 83440
FIRST AMENDMENT TO DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR
PINE BROOK ESTATES DIVISION #2 SUBDIVISION
Madison County, Idaho
THIS FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS FOR PINE BROOK ESTATES DIVISION #2 SUBDIVISION (this
“Amendment”) amends the Declaration of Covenants, Conditions and Restrictions dated
November 20, 2008 and recorded on December 19, 2008 in Madison County, Idaho as
Instrument # 350710 (the “Declaration”).
This Amendment, having been signed by the Grantor and all Owners of Building Lots in
Pine Brook Estates Division #2 Subdivision, shall become effective upon its recording with the
Recorder of Madison County, Idaho. The Declaration is hereby amended as follows:
1. Except as otherwise defined herein, terms defined in the Declaration shall have
the same definitions when used in this Amendment.
2. Article 1 of the Declaration is hereby amended by deleting it in its entirety and
replacing it with the following new Article 1:
“ARTICLE 1 – RECITALS
The property subject to this Declaration includes, but is not limited to, the
property legally described on Exhibit A attached to the Declaration of Covenants,
Conditions and Restrictions for Pine Brook Estates Division #2 Subdivision
recorded with the Madison County, Idaho Recorder’s Office on December 19,
2008 as Instrument #350710 (the ‘Exhibit A Property’) and made a part hereof by
this reference (‘Pine Brook Estates Division #2 Subdivision’). Any other property
otherwise annexed into or added to Pine Brook Estates Division #2 Subdivision
shall be subject to this Declaration through a Supplemental Declaration recorded
with the Madison County, Idaho Recorder’s Office and all property subject to this
Declaration, whether by this Declaration or any Supplemental Declaration,
referred to herein as the ‘Property.’
The purposes of this Declaration is to set forth the basic restrictions,
covenants, limitations, easements, conditions, and equitable servitudes
(collectively, ‘Restrictions’) that apply to the Property. The Restrictions are
FIRST AMENDMENT TO DECLARATION – Page 2
designed to preserve the Property’s value, desirability, and attractiveness, to
ensure a well-integrated high-quality development, and to guarantee adequate
maintenance of the Common Area, and the Improvements located thereon, in a
cost effective and administratively efficient manner.”
3. The definition of “Association” in Article 3 of the Declaration is hereby amended
by deleting it in its entirety and replacing it with the following new definition:
“‘Association.’ Association shall mean an Idaho non-profit corporation, and its
successors and assigns, to be established by Grantor or, upon Grantor’s written
authorization, Owners other than Grantor to exercise the powers and to carry out
the duties set forth in this Declaration or any Supplemental Declaration. The
Association may be named the ‘Pine Brook Division #2 Homeowners
Association, Inc.,’ or any similar name which fairly reflects its purpose and is
approved by Grantor.”
4. The definition of “Building Lot” in Article 3 of the Declaration is hereby
amended by deleting it in its entirety and replacing it with the following new definition:
“‘Building Lot.’ Building Lot shall mean a lot within the Property as specified or
shown on any Plat and/or by Supplemental Declaration, upon which
Improvements may be constructed.”
5. The definition of “Limited Assessment” in Article 3 of the Declaration is hereby
amended by deleting it in its entirety and replacing it with the following new definition:
“‘Limited Assessment.’ Limited Assessment shall mean a charge against a
particular Owner and such Owner’s Building Lot, directly attributable to the
Owner, equal to the cost incurred by the Association for corrective action or
maintenance, repair, replacement and operation activities performed pursuant to
the provisions of this Declaration or any Supplemental Declaration, including,
without limitation, damage to or maintenance, repair, replacement and operation
activities performed for any Common Area or the failure of an Owner to keep the
Owner’s Building Lot in proper repair, including interest thereon as provided in
this Declaration or a Supplemental Declaration or for any goods or services
provided by the Association benefiting less than all Owners.”
6. The definition of “Owner” in Article 3 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new definition:
“‘Owner.’ Owner shall mean the person or other legal entity, including Grantor,
holding fee simple interest of record to a Building Lot which is a part of the
Property, and buyers under executory contracts of sale, but excluding those
having such interest merely as security for the performance of an obligation.”
FIRST AMENDMENT TO DECLARATION – Page 3
7. The definition of “Plat” in Article 3 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new definition:
“‘Plat.’ Plat shall mean any subdivision plat covering all or any portion of the
Property as recorded at the office of the County Recorder, Madison County,
Idaho, as the same may be amended by duly recorded amendments thereof.”
8. The definition of “Property” in Article 3 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new definition:
“‘Property.’ Property shall mean the Exhibit A Property, including each
Building Lot, parcel, and portion thereof. The Property also shall include such
additional property as may be annexed by Grantor or the Association by means of
Supplemental Declaration as provided herein.”
9. The definition of “Tract” in Article 3 of the Declaration is hereby amended by
deleting it in its entirety.
10. Subparagraph 4.1.1 of Article 4 of the Declaration is hereby amended by deleting
it in its entirety and replacing it with the following new subparagraph 4.1.1:
“4.1.1 Use and Size of Dwelling Structure. All Building Lots shall be used
exclusively for single-family residential purposes. No Building Lot shall be
improved except with a single-family dwelling unit or structure or accessory
structures. The minimum dwelling unit size in Pine Brook Estates Division #2
Subdivision shall be One Thousand Seven Hundred (1,700) square feet, exclusive
of garage, on the main floor, which may be constructed on single or multiple
adjacent Building Lots owned by the same Owner. A dwelling unit on a Building
Lot must be constructed in accordance with plans and specifications that have
been submitted to the Architectural Committee by the Owner of the Building Lot
and approved in writing by the Architectural Committee. Construction of a
dwelling unit on a Building Lot must not commence until the plans and
specifications have been so approved. Any changes or modifications to approved
plans and specifications must be approved in writing by the Architectural
Committee before implementation.”
11. Subparagraph 4.1.5 of Article 4 of the Declaration is hereby amended by deleting
it in its entirety and replacing it with the following new subparagraph 4.1.5:
“4.1.5 Setbacks and Height. No residential or other structure (exclusive of
fences and similar structures) shall be placed nearer to the Building Lot lines or
built higher than permitted by the Plat in which the Building Lot is located, by
any applicable zoning restriction, by any conditional use permit, or by a building
envelope designated either by Grantor or the Architectural Committee, whichever
is more restrictive. No building or structure shall be located on any lot nearer to
FIRST AMENDMENT TO DECLARATION – Page 4
the front street than forty-five (45) feet. Side setbacks that face streets of
dwelling units built on corner lots shall conform to the front setback
requirement.”
12. Subparagraph 4.1.6 of Article 4 of the Declaration is hereby amended by deleting
it in its entirety and replacing it with the following new subparagraph 4.1.6:
“4.1.6 Exterior Finish. Exterior finish shall be of brick, stone, stucco, steel
siding or vinyl siding. Rock or brick must cover at least sixty percent (60%) of
the exterior of the front of the dwelling unit. The remainder of the exterior of the
front of the dwelling unit must be stucco. Exterior colors of the dwelling unit
must be earth tones, unless otherwise approved in writing in advance by the
Architectural Committee.”
13. Subparagraph 4.1.8 of Article 4 of the Declaration is hereby amended by deleting
it in its entirety and replacing it with the following new subparagraph 4.1.8:
“4.1.8 Accessory Structures. Each dwelling unit must have at a minimum a
two-car enclosed garage attached to the dwelling unit. Open car-ports are not
allowed. Detached garages also shall be allowed, if in conformity with the
provisions of this Declaration, and as approved by the Architectural Committee.
Garages, storage sheds, shops, fences, patio covers, detached patio covers and
other accessory improvements must be constructed pursuant to plans and
specifications approved in writing by the Architectural Committee using a similar
design and the same materials and colors as on the exterior of the dwelling unit,
including without limitation complying with the exterior materials and finish
requirements for the front and other sides of the applicable dwelling unit
described in subparagraph 4.1.6. No accessory structure may be constructed on a
Building Lot until after the dwelling unit has been constructed on the Building
Lot or adjacent Building Lot owned by the same Owner. No playhouses,
playground equipment, pool slides, diving boards, hot tubs, spas, or similar items
shall extend higher than five (5) feet above the finished graded surface of the
Building Lot upon which such items are located, unless authorized in writing by
the Architectural Committee, in its sole discretion. Basketball courts, backboards,
pools, tennis courts and the like shall be allowed in the backyard of any Building
Lot, provided that such improvements and the plans and specifications therefor
are approved by the Architectural Committee in writing, are not visible from any
street and do not promote noise or other nuisance that is offensive or detrimental
to other property in the vicinity of the Building Lot or offensive or detrimental to
the occupants of such other property.”
14. Paragraph 4.14 of Article 4 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 4.14:
FIRST AMENDMENT TO DECLARATION – Page 5
“4.14 No Unscreened Boats, Campers, and Other Vehicles. No dilapidated,
unrepaired or unsightly vehicles or other equipment shall be placed upon any
portion of the Property (including, without limitation, streets, parking areas, and
driveways) unless the same are enclosed by a structure on a Building Lot
constructed in conformity with this Declaration that conceals them from view in a
manner approved in writing by the Architectural Committee. To the extent
possible and except when a garage is in use, garage doors shall remain closed at
all times.”
15. Paragraph 4.18 of Article 4 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 4.18:
“4.18 Vehicles. The use of all vehicles, including, but not limited to, trucks,
automobiles, bicycles, motorcycles, snowmobiles, aircraft, and boats, shall be
subject to all Association Rules, which may prohibit or limit the use thereof
within the Subdivision. No on-street parking shall be permitted except where
expressly designated for parking use. No parking bays shall be permitted in any
front yard or side yard that borders a street. Vehicles parked on a driveway shall
not extend into any sidewalk, bike path or pedestrian path. No motorized vehicle
or device shall be permitted on any Waterway unless such vehicle is engaged in
an emergency procedure.”
16. Paragraph 4.19 of Article 4 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 4.19:
“4.19 Animals/Pets. No animals, birds, insects, pigeons, poultry or livestock
shall be kept on the Property unless the presence of such creatures does not
constitute a nuisance. This paragraph 4.19 does not apply to the keeping of up to
two (2) domesticated dogs, up to two (2) domesticated cats, and other household
pets which do not unreasonably bother or constitute a nuisance to others. Without
limiting the generality of the foregoing, consistent and/or chronic barking by dogs
shall be considered a nuisance. Each dog in Pine Book Estates Division #2
Subdivision shall be kept on a leash, curbed, and otherwise controlled at all times
when such animal is off the premises of its owner. Such owner shall clean up any
animal defecation immediately from the Common Area, public right-of-way or
any Building Lot. Failure to do so may result, at the Board’s discretion, with a
Limited Assessment levied against such dog owner or requirement that such dog
be permanently removed from the Pine Book Estates Division #2 Subdivision.
No dog or cat shall be allowed in any Waterway. The construction of dog runs or
other pet enclosures shall be subject to applicable Architectural Committee
approval, shall be appropriately screened, and shall be maintained in a sanitary
condition. Dog runs or other pet enclosures shall be placed a minimum of ten
(10) feet from the side and twenty-five (25) feet from the rear Building Lot lines,
shall not be placed in any front yard of a Building Lot, and shall be screened from
view so as not to be visible from the Common Area or an adjacent Building Lot.”
FIRST AMENDMENT TO DECLARATION – Page 6
17. Paragraph 4.20 of Article 4 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 4.20:
“4.20 Landscaping. An Owner shall sod and landscape all Building Lots
owned by such Owner, including any additional Building Lot(s) adjacent to the
Building Lot upon which such Owner’s dwelling unit is constructed.
Landscaping on such additional Building Lot(s) shall be similar to and fit with the
landscaping on such Owner’s Building Lot with the dwelling unit in conformance
with a landscape plan approved by the Architectural Committee. An Owner shall
not commence landscaping until such Owner’s landscape plan has been approved
in writing by the Architectural Committee. Weather permitting, all landscaping
shall be planted within ninety (90) days after (i) the dwelling structure on the
Building Lot is completed for habitation by the permanent residents thereof or (ii)
in the case of a ‘spec home,’ after the spec home has been completed and sold for
habitation by the permanent resident thereof. The initial landscaping shall include
as a minimum, sod in the front and side yards, two (2) deciduous trees of at least
two inch (2”) caliper or one (1) pine tree at least six feet (6’) in height and one
(1) flowering tree of at least two inch (2”) caliper in front yard, ten (10) – five (5)
gallon shrubs or plants, five (5) two (2) gallon shrubs or plants and at least one (1)
raised sculptured berm in side and back yards. However, if Grantor or an affiliate
of Grantor constructs the dwelling structure, only the front yard of the Building
Lot is required to be landscaped within ninety (90) days of completion of the
dwelling structure, weather permitting. The Owner is then responsible for
completing the balance of the Building Lot landscaping within ninety (90) days
after the Building Lot is conveyed to the first Owner of the Building Lot.
Additionally, Grantor or the Architectural Committee may grant in writing
extensions of the landscaping deadlines to any party for up to ninety (90) days.
At all times after an Owner’s purchase of a Building Lot, the Owner (or any
Association which has assumed such responsibility) shall provide adequate
irrigation and maintenance of existing trees and landscaping, shall mow and
otherwise control weeds, and shall maintain the Building Lot in a clean and safe
condition free of debris or any hazardous condition. Under no circumstances
shall an Owner cause or permit on such Owner’s Building Lot any open or
unguarded excavation holes or pits. No line rows of poplar or related extreme
height trees shall be allowed on any Building Lot. All trees located on common
Building Lot lines shall be the joint responsibility of the adjoining Building Lot
Owners. All landscaped Common Areas other than riparian vegetation shall be
irrigated by an underground sprinkler system.”
18. Paragraph 5.1 of Article 5 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 5.1:
“5.1 Organization of Pine Brook Estates Division #2 Homeowners
Association. Within a reasonable time after twenty-five Building Lots within the
FIRST AMENDMENT TO DECLARATION – Page 7
Subdivision have been sold by Grantor to unrelated third parties or earlier, in
Grantor’s discretion, Grantor, or if authorized in writing by Grantor, Owners other
than Grantor shall organize Pine Brook Estates Division #2 Homeowners
Association (‘Association’) as an Idaho nonprofit corporation under the
provisions of the Idaho Nonprofit Corporation Act, which shall be charged with
the duties and invested with the powers prescribed by law and set forth in the
Articles, Bylaws, and this Declaration. Neither the Articles nor the Bylaws of the
Association shall be inconsistent with this Declaration or any amendment or
supplements to this Declaration. Until the Association is organized, Grantor shall
have all rights and authority of the Association, including enforcement of this
Declaration.”
19. Paragraph 5.2 of Article 5 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 5.2:
“5.2 Membership. After organization of the Association, each Owner
(including Grantor), by virtue of being an Owner and for so long as such
ownership is maintained, shall be a Member of the Association. Membership in
the Association shall be appurtenant to the Building Lot(s) owned by such Owner.
Membership in the Association shall not be transferred, pledged, assigned, or
alienated in any way except upon the transfer of Owner’s title to the Owner’s
Building Lot(s) and then only to the transferee of such title. Any attempt to make
a prohibited membership transfer shall be void and will not be reflected on the
books of the Association.”
20. Subparagraph 5.3.1 of Article 5 of the Declaration is hereby amended by deleting
it in its entirety and replacing it with the following new subparagraph 5.3.1:
“5.3.1 Class A Members. Owners other than Grantor, for so long as Grantor is
the Class B Member, shall be known as Class A Members. Each Class A
Member shall be entitled to cast one (1) vote for each Building Lot owned by
such Class A Member on the day of the vote.”
21. The first paragraph of subparagraph 5.3.2 of Article 5 of the Declaration is hereby
amended by deleting it in its entirety and replacing it with the following new first paragraph of
subparagraph 5.3.2:
“5.3.2 Class B Member. The Grantor shall be known as the Class B Member,
and shall be entitled to six (6) votes for each Building Lot that Grantor owns on
the day of the vote. The Class B Member shall become a Class A Member with
one (1) vote for each Building Lot owned by the Grantor upon the latter to occur
of the following: (i) when the total cumulative votes of the Class A Members
equal or exceed the total votes of the Class B Member or (ii) the expiration of ten
(10) years after the date on which the first Building Lot is sold to an Owner.”
FIRST AMENDMENT TO DECLARATION – Page 8
22. The introductory paragraph of subparagraph 5.5.1 of Article 5 of the Declaration
is hereby amended by deleting it in its entirety and replacing it with the following new
introductory paragraph of subparagraph 5.1.1:
“5.1.1 Powers. The Association shall have all the powers of a corporation
organized under the nonprofit corporation laws of the State of Idaho subject only
to such limitations upon the exercise of such powers as are expressly set forth in
the Articles, the Bylaws or this Declaration. The Association shall have the
power to do any and all lawful things which may be authorized, required or
permitted to be done by the Association under Idaho law and under this
Declaration, and the Articles and Bylaws, and to do and perform any and all acts
which may be necessary to, proper for, or incidental to the proper management
and operation of the Common Area and the Association’s other assets (including
water rights when and if received from Grantor) and affairs and the performance
of the other responsibilities herein assigned, including without limitation:”
23. Subparagraph 5.5.1.2 of Article 5 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new subparagraph 5.5.1.2:
“5.5.1.2 Right of Enforcement. The power and authority from time to
time in its own name, on its own behalf or on behalf of any Owner who consents
thereto, to commence and maintain actions and suits to restrain and enjoin any
breach or threatened breach of this Declaration, the Articles, the Bylaws or any
Association Rules adopted pursuant to this Declaration, and to enforce by
injunction or otherwise, all provisions hereof and thereof.”
24. Subparagraph 5.5.1.4 of Article 5 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new subparagraph 5.5.1.4:
“5.5.1.4 Association Rules. The power to adopt, amend, and repeal by
majority vote of the Board such rules and regulations as the Board deems
reasonable. The Association may govern the use of the Common Areas,
including, but not limited to, the use of private streets by the Owners, their
families, invtees, licensees, lessees, or contract purchasers; provided, however,
that Association Rules shall apply equally to all Owners and shall not be
inconsistent with this Declaration, the Articles or the Bylaws. A copy of the
Association Rules as they may from time to time be adopted, amended, or
repealed, shall be mailed or otherwise delivered to each Owner. Upon such
mailing or delivery, the Association Rules shall have the same force and effect as
if they were set forth in and were a part of this Declaration. In t he event of any
conflict between such Association Rules and any other provisions of this
Declaration, the Articles or the Bylaws, the provisions of the Association Rules
shall be deemed to be superseded by provisions of this Declaration, the Articles or
the Bylaws to the extent of any such inconsistency.”
FIRST AMENDMENT TO DECLARATION – Page 9
25. Subparagraph 5.5.1.7 of Article 5 of the Declaration is hereby amended by
deleting the second paragraph thereof in its entirety.
26. Paragraph 7.1 and subparagraphs 7.1.1 and 7.1.2 of Article 7 of the Declaration
are hereby amended by deleting them in their entirety and replacing them with the following new
paragraph 7.1 and subparagraphs 7.1.1 and 7.1.2:
“7.1 Covenant to Pay Assessments. By acceptance of a deed to a Building
Lot, each Owner of a Building Lot hereby covenants and agrees to pay when due
all Assessments or charges made by the Association, including all Regular,
Special and Limited Assessments and charges made against such Owner pursuant
to the provisions of this Declaration or other applicable instrument.
7.1.1 Assessment Constitutes Lien. Such Assessments and
Charges, together with interest, costs, and reasonable attorney’s
fees which may be incurred in collecting the same, shall be a
charge and continuing lien upon the Building Lot against which
each such Assessment or charge is made.
7.1.2 Assessment Is Personal Obligation. Each such
Assessment, together with interest, costs and reasonable attorney’s
fees, shall also be the personal obligation of the Owner of such
Building Lot beginning with the time when the Assessment falls
due. The personal obligation for delinquent Assessments shall not
pass to such Owner’s successors in title unless expressly assumed
by them but shall remain such Owner’s personal obligation
regardless of whether he remains an Owner and shall remain a lien
against the applicable Building Lot.”
27. The introductory paragraph of paragraph 7.2 of Article 7 of the Declaration is
hereby amended by deleting it in its entirety and replacing it with the following new introductory
paragraph of paragraph 7.2:
“7.2 Regular Assessments. All Owners, including the Grantor, are obligated
to pay Regular Assessments to the Association on a schedule of payments
established by the Board.”
28. Subparagraphs 7.2.3.1 and 7.2.3.2 of Article 7 of the Declaration are hereby
amended by deleting them in their entirety and replacing them with the following new
paragraphs 7.2.3.1 and 7.2.3.2:
“7.2.3.1 As to the Association’s Regular Assessment, each Owner shall be
assessed and shall pay an amount computed by multiplying the Association’s total
advance estimate of Expenses by the fraction produced by dividing the Building
FIRST AMENDMENT TO DECLARATION – Page 10
Lot(s) attributable to the Owner by the total number of Building Lots in the
Property.
7.2.3.2 Up until two (2) years following the date of the first sale of a
Building Lot, the Grantor shall be assessed the difference between the total
revenue of the Association less the total expenses of the Association (“Shortfall”).
The Grantor agrees to pay the cost of any Shortfall in order to properly maintain
the Property. After two (2) years from the date of the first sale of a Building Lot,
the Grantor shall be assessed the Regular Assessment (defined in Section 7.2.3.1)
for each Building Lot owned by Grantor. This reduced assessment is in return for
the Grantor paying the maintenance obligations for the Common Area prior to the
acceptance of these obligations by the Association.”
29. Paragraph 7.7 of Article 7 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 7.7:
“7.7 Notice and Assessment Due Date. Ten (10) days’ prior written notice of
Regular and Special Assessments shall be sent to each Owner of each Building
Lot subject thereto, and to any person in possession of such Building Lot. The
due dates for installment payments of Regular Assessments and Special
Assessments shall be the first day of each month unless some other due date is
established by the Board. Each monthly installment of a Regular Assessment or
Special Assessment shall become delinquent if not paid within ten (10) days after
its due date. There shall accrue with each delinquent installment payment a late
charge equal to ten percent (10%) of the delinquent installment. In addition, each
installment payment which is delinquent for more than twenty (20) days shall
accrue interest at eighteen percent (18%) per annum calculated from the date of
delinquency to and including the date full payment is received by the Association.
The Association may bring an action against the delinquent Owner and may
foreclose the lien against such Owner’s Building Lot as more fully provided
herein. Each Owner is personally liable for Assessments, together with all
interest, costs and attorney’s fees, and no Owner may exempt such Owner from
such liability by a waiver of the use and enjoyment of the Common Areas, or by
lease or abandonment of such Owner’s Building Lot.”
30. Paragraph 7.9 of Article 7 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 7.9:
“7.9 Special Notice and Quorum Requirements. Notwithstanding anything
to the contrary contained in either the Bylaws or the Articles, written notice of
any meeting called for the purpose of levying a Special Assessment, or for the
purpose of obtaining a membership vote in connection with an increase in the
Regular Assessment, shall be sent to all Members of the Association not less than
fifteen (15) days nor more than thirty (30) days before such meeting. At the first
such meeting called, the presence of Members in person, by proxy, by mailed
FIRST AMENDMENT TO DECLARATION – Page 11
written ballot or by absentee ballot entitled to cast ten percent (10%) of the total
votes of the Association shall constitute a quorum. Unless one-third (1/3) or more
of the voting power is present in person, by proxy, by mailed written ballot or by
absentee ballot, the only matters that may be voted upon at an annual or regular
meeting of members are those matters that are described in the meeting notice.”
31. Paragraph 8.1 of Article 8 of the Declaration is hereby amended by deleting it in
its entirety and replacing it with the following new paragraph 8.1:
“8.1 Right to Enforce. The Association has the right to collect and enforce its
Assessments pursuant to the provisions hereof. Each Owner of a Building Lot,
upon becoming an Owner of such Building Lot, shall be deemed to covenant and
agree to pay each and every Assessment provided for in this Declaration and to
the enforcement of all Assessments in the manner herein specified. In the event
an attorney or attorneys are employed for the collection of any Assessment,
whether by suit or otherwise, or to enforce compliance with or specific
performance of the terms and conditions of this Declaration, each Owner agrees
to pay reasonable attorney’s fees in addition to any other relief or remedy
obtained against such Owner. The Board or its authorized representative may
enforce the obligations of the Owners to pay such Assessments by
commencement and maintenance of a suit at law or in equity, or the Board may
exercise the power of foreclosure and sale pursuant to paragraph 8.3 to enforce
the liens created hereby. A suit to recover a money judgment for an unpaid
Assessment may be maintained without foreclosing or waiving the lien hereinafter
provided.”
32. Paragraph 10.1 of Article 10 of the Declaration is hereby amended by deleting it
in its entirety and replacing it with the following new paragraph 10.1:
“10.1 Creation. Grantor may appoint three (3) individuals to serve on the
Architectural Committee (“Architectural Committee”). Each member shall hold
office until such time as such member has resigned or has been removed, or such
member’s successor has been appointed, as provided herein. A member of the
Architectural Committee need not be an Owner. Members of the Architectural
Committee may be removed by the person or entity appointing them at any time
without cause. Until the Grantor appoints the members of the Architectural
Committee, Grantor shall serve as the Architectural Committee.”
33. Paragraph 10.9 of Article 10 of the Declaration is hereby amended by deleting it
in its entirety and replacing it with the following new paragraph 10.9:
FIRST AMENDMENT TO DECLARATION – Page 12
“10.9 Variances. The Architectural Committee may authorize variances from
compliance with any of the architectural provisions of this Declaration, including
restrictions upon height, size, floor area, or placement of structures, or similar
restrictions, when circumstances such as topography, natural obstructions,
hardship, aesthetic, or environmental considerations may require. However no
variances will be granted for construction of structures or Improvements,
including without limitation manicured lawns, in the Common Areas. Such
variances must be evidenced in writing, must be signed by at least one (1)
member of the Architectural Committee, and shall become effective upon
recordation in the office of the County Recorder of Madison County, Idaho. If a
variance is granted, no violation of the covenants, conditions or restrictions
contained in this Declaration shall be deemed to have occurred with respect to the
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 Building Lot and particular provision hereof
covered by the variance, nor shall it affect any way the Owner’s obligation to
comply with all governmental laws and regulations affecting such Owner’s use of
the Building Lot, including but not limited to zoning ordinances or requirements
imposed by any governmental or municipal authority.”
34. Article 11 of the Declaration is hereby amended by deleting it in its entirety and
replacing it with the following new Article 11:
“ARTICLE 11 – ANNEXATION OF ADDITIONAL PROPERTIES
11.1 By Grantor. Grantor intends to develop the Property and may, in
Grantor’s sole discretion, deem it desirable to annex other properties to the
Property covered by this Declaration. Other properties may be annexed to the
Property and brought within the provisions of this Declaration as provided herein
by Grantor, its successors or assigns, at any time, and from time to time, by
Supplemental Declaration without the approval of any Owner or the Association.
11.2 By Association. Following the termination of the Class B Member,
property also may be annexed to the Property by Supplemental Declaration by the
Association upon approval by Members of at least two-thirds (2/3) 2
of the votes of the Association.
11.3 Rights and Obligations of Owners of Annexed Properties. Subject to
the provisions hereof, upon the recording of a Supplemental Declaration as to any
other property all provisions contained in this Declaration shall apply to such
annexed property in the same manner as if it were originally covered by this
Declaration, subject to such modifications, changes and deletions as are
specifically provided in such Supplemental Declaration. The Owners of Building
Lots located in such annexed property shall become members of the Association
and shall become liable for their proportionate share of Assessments. Title to the
FIRST AMENDMENT TO DECLARATION – Page 13
Common Areas which are to be owned and managed by the Association within
said annexed property shall be conveyed to the Association, free and clear of any
and all encumbrances and liens, subject to reservations, easements, covenants,
conditions and restrictions then of record, including those set forth in this
Declaration or any Supplemental Declaration applicable to such annexed
property.
11.4 Method of Annexation. The addition of other property to the Property
shall be made by recording a Supplemental Declaration with respect to the
annexed property, which shall be executed by Grantor or the Association, as
applicable, and which shall annex such property to the Property. Thereupon such
annexed property shall be part of the Property, shall be subject to this Declaration
and encompassed within the general plan and scheme hereof as modified by such
Supplemental Declaration, and shall be subject to the functions, powers, and
jurisdiction of the Association established for the area encompassing such
annexed property. Such Supplemental Declaration or other appropriate document
may contain such additions, modifications or deletions as may be deemed by
Grantor or the Association, as applicable, desirable to reflect the different
character, if any, of such annexed property, or as Grantor or the Association, as
applicable, may deem appropriate in the development of such annexed property.
If any such annexed property is created, the Association shall have the authority
to levy Assessments against the Owners located within such annexed property,
and the Association shall have the duty to maintain any additional Common Area
located within such annexed property, if so specified in any Supplemental
Declaration.
11.5 De-annexation. Grantor may delete all or a portion of the Property,
including other previously annexed property, from the Property and from
coverage of this Declaration and the jurisdiction of the Association so long as
Grantor is the owner of all such property and provided that a Supplemental
Declaration of Deletion of Property is recorded in the Office of the Madison
County, Idaho Recorder in the same manner as a Supplemental Declaration of
annexation. The Association shall not be entitled to de-annex all or any portion of
any other annexed property, except on the favorable vote of seventy-five percent
(75%) of all voting power of the Association and written approval of Grantor so
long as Grantor owns any portion of the Property.”
35. Paragraph 12.2 of Article 12 of the Declaration is hereby amended by deleting it
in its entirety and replacing it with the following new paragraph 12.2:
“12.2 Easements of Access. All Owners of Building Lots will have a perpetual
easement for access, ingress and egress over the Common Area, including but not
limited to any private streets, cul-de-sacs and walkways. Such easements shall
run with the land, and may be used by Grantor, and by all Owners, their guests,
FIRST AMENDMENT TO DECLARATION – Page 14
tenants and invitees, residing on or temporarily visiting the Property, for
pedestrian walkways, vehicular access and such other purposes reasonably
necessary for the use and enjoyment of a Building Lot or Common Area.”
36. Paragraph 12.3 and subparagraph 12.3.1 of Article 12 of the Declaration are
hereby amended by deleting them in their entirety and replacing them with the following new
paragraph 12.3 and subparagraph 12.3.1:
“12.3 Drainage and Utility Easements. Grantor expressly reserves for the
benefit of all the Property reciprocal easements of access, ingress and egress for
all Owners to and from their respective Building Lots for installation and repair of
utility services, for drainage of water over, across and upon adjacent Building
Lots, and Common Area, resulting from the normal use of adjoining Building
Lots or Common Area, and for necessary maintenance and repair for any
improvement including fencing, retaining walls, lighting facilities, mailboxes and
sidewalk abutments, trees, and landscaping. Notwithstanding anything expressly
or impliedly contained herein to the contrary, this Declaration shall be subject to
all easements heretofore or hereafter granted by Grantor for the installation and
maintenance of utilities and drainage facilities that are required for the
development of the Property. In addition, Grantor hereby reserves the right to
grant additional easements and rights-of-way over the Property and/or to the
Property until the close of escrow for the sale of the last Building Lot owned by
Grantor.
12.3.1 Improvement of Drainage and Utility Easement Areas.
The Owners of Building Lots are hereby restricted and enjoined
from constructing any Improvements upon any drainage or utility
easement areas as shown on the Plat or otherwise designated in any
recorded document which would interfere with or prevent the
easement from being used for such purpose; provided, however,
that the Owner of a Building Lot and the Grantor, Association or
designated entity with regard to the Landscaping Easement
described in this Article 12, shall be entitled to install and maintain
landscaping on such easement areas and also shall be entitled to
build and maintain fencing on such easement areas subject to
approval by the Association or the Architectural Committee, so
long as the same shall not interfere with or prevent the easement
areas from being used for their intended purposes; provided, that
any damage sustained to improvements on the easement areas as a
result of legitimate use of the easement areas shall be the sole and
exclusive obligation of the Owner whose improvements were so
damaged.”
37. Subparagraph 12.11.3 of Article 12 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new subparagraph 12.11.3:
FIRST AMENDMENT TO DECLARATION – Page 15
“12.11.3 The Grantor shall have the right and power to bring all actions
against the Owner of the Building Lot for the collection of any charges herein
required and to enforce the conditions herein stated. This covenant shall run with
the land.”
38. Paragraph 13.2 of Article 13 of the Declaration is hereby amended by deleting it
in its entirety and replacing it with the following new paragraph 13.2:
“13.2 Amendment.
13.2.1 By Grantor. Except as provided in paragraph 13.3 below, until
the recordation of the first deed for the transfer by Grantor of a Building Lot in
the Subdivision, the provisions of this Declaration may be amended, modified,
clarified, supplemented, added to (collectively, ‘amendment’) or terminated by
Grantor by recordation of a written instrument setting forth such amendment or
termination.
13.2.2 By Owners. Except where a greater percentage is required by
express provisions of this Declaration or by law, the provisions of this
Declaration, other than this Article 13, may be amended prior to the organization
of the Association by an instrument in writing signed and acknowledged by the
Grantor and at least a majority of the other Owners. After the organization of th e
Association, this Declaration may be amended by an instrument in writing signed
and acknowledged by the Grantor, so long as the Grantor is an Owner of any
Building Lot, and the president and secretary of the Association certifying and
attesting that such amendment has been approved by the vote or written consent
of Owners representing more than fifty percent (50%) of the votes in the
Association. An amendment to this declaration properly adopted as set forth
above shall be effective upon its recordation with the Madison County, Idaho
Recorder. Any amendment to this Article 13 shall require the vote or written
consent of the Grantor, so long as the Grantor is an Owner of any Building Lot,
and Owners owning at least ninety-five percent (95%) of the Building Lots within
the Subdivision.
13.2.3 Effect of Amendment. Any amendment to this Declaration
approved in a manner specified above shall be binding on and effective as to all
Owners and their respective Building Lots notwithstanding that such Owners may
not have voted for or consented to such amendment. Such amendments may add
to and increase the covenants, conditions, restrictions, and easements applicable
to the Property but shall not prohibit or unreasonably interfere with the allowed
uses of a Building Lot which existed prior to the amendment.”
39. Paragraph 13.3 of Article 13 of the Declaration is hereby amended by deleting it
in its entirety and replacing it with the following new paragraph 13.3:
FIRST AMENDMENT TO DECLARATION – Page 16
“13.3 Notices. Any notices permitted or required to be delivered as provided
herein shall be in writing and may be delivered personally, by mail, or by
electronic or facsimile transmission. If delivery is made by mail, it shall be
deemed to have been delivered seventy-two (72) hours after the same has been
deposited in the United States mail, postage prepaid, addressed to any person at
the last known address of such person. Delivery in person or by electronic or
facsimile transmission shall be deemed delivered upon receipt by the recipient of
the notice. Such address may be changed from time to time by notice in writing
to the Grantor so long as the Grantor owns at least one (1) Building Lot and, after
organized, the Association, as provided in this paragraph 13.3.”
40. Subparagraph 13.4.2 of Article 13 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new subparagraph 13.4.2:
“13.4.2 Violations and Nuisances. The failure of an Owner of a Building Lot to
comply with any provision hereof, or with any provision of the Articles, Bylaws
or Association Rules, is hereby declared a nuisance and will give rise to a cause of
action in the Grantor, the Association or any other Owner of a Building Lot for
recovery of damages, negative or affirmative injunctive relief, or both. However,
any other provision to the contrary notwithstanding, only Grantor, the
Association, the Board, or a duly authorized agent of any of them, may enforce by
self-help any of the provisions hereof and only if such self-help is preceded by
reasonable notice to the applicable Owner.”
41. Subparagraph 13.5.2 of Article 13 of the Declaration is hereby amended by
deleting it in its entirety and replacing it with the following new subparagraph 13.5.2:
“13.5.2 Restrictions Severable. Notwithstanding the provisions of the foregoing
paragraph 13.5.1, each of the provisions of this Declaration shall be deemed
independent and severable, and the invalidity or partial invalidity of any provision
or portion thereof shall not affect the validity or enforceability of any other
provision herein.”
42. The Declaration, as amended by this Amendment, shall continue in full force and
effect. Hereafter, any references to the “Declaration,” in the Declaration or this Amendment
shall mean the Declaration as amended by this Amendment, unless the context otherwise
requires.
43. This Amendment may be executed and acknowledged in counterparts, each of
which shall be deemed an original but all of which shall constitute one and the same instrument .
The signature and acknowledgment pages may be detached from each counterpart and combined
into one instrument for recording in Madison County, Idaho.
FIRST AMENDMENT TO DECLARATION – Page 17
IN WITNESS WHEREOF, the undersigned, being the Grantor and all Owners of
Building Lots in Pine Brook Estates Division #2 Subdivision have executed this Amendment.
[SIGNATURES ARE ON SEPARATE
SIGNATURE PAGES ATTACHED HERETO]
FIRST AMENDMENT TO DECLARATION – Page 18
GRANTOR:
4-U Development LLC, an
Idaho limited liability company
By: ______________________________
Curtis Ferney, Managing Member
STATE OF IDAHO )
:ss
County of ____________ )
On this ____ day of ______________________, in the year 2013, before me,
_____________________________, a Notary Public in and for said State, personally appeared
Curtis Ferney, known or identified to me (or proved to me on the oath of
____________________), to be the Managing Member of the Corporation that executed the
instrument or the person who executed the instrument on behalf of said corporation, and
acknowledged to me that such corporation executed the same.
________________________________
Notary Public for Idaho
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 19
OWNERS:
Lot 5, Block 5
______________________________ ______________________________
Kendell Fuller Diana Fuller
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Kendell
Fuller, known or identified to me (or proved to me on the oath of _________________), to be
the person whose name is subscribed to the within instrument, and acknowledged to me that he
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Diana
Fuller, known or identified to me (or proved to me on the oath of _________________), to be
the person whose name is subscribed to the within instrument, and acknowledged to me that she
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 20
OWNERS:
Lot 11, Block 1
Douglas and Earlene Smith Living Trust Douglas and Earlene Smith Living Trust
By: ______________________________ By: ______________________________
Douglas J. Smith, Trustee G. Earlene Smith, Trustee
STATE OF IDAHO )
:ss
County of ___________ )
On this ____ day of ______________________, in the year 2015, before me,
________________________, a Notary Public in and for said State, personally appeared
Douglas J. Smith and G. Earlene Smith, known or identified to me (or proved to me on the oath
of _________________), to be a trustees of the trust that executed the instrument or the persons
who executed the instrument on behalf of such trust, and acknowledged to me that such trust
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
Lot 10, Block 1
______________________________ ______________________________
Douglas J. Smith G. Earlene Smith
STATE OF IDAHO )
:ss
County of ___________ )
On this ____ day of ______________________, in the year 2015, before me,
________________________, a Notary Public in and for said State, personally appeared
Douglas J. Smith and G. Earlene Smith, husband and wife, known or identified to me (or proved
to me on the oath of _________________), to be the persons whose names are subscribed to the
within instrument, and acknowledged to me that they executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 21
OWNERS:
Lot 9, Block 1
Lot 10, Block 1
______________________________ ______________________________
Nicholas R. Leishman Tina J. Leishman
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Nicholas R.
Leishman, known or identified to me (or proved to me on the oath of _________________), to
be the person whose name is subscribed to the within instrument, and acknowledged to me that
he executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Tina J.
Leishman, known or identified to me (or proved to me on the oath of _________________), to
be the person whose name is subscribed to the within instrument, and acknowledged to me that
she executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 22
OWNERS:
Lots 6 and 9, Block 5
Robert Dale Price Living Trust Tressia C. Price Living Trust
By: ______________________________ By: ______________________________
Robert Dale Price, Trustee Tressia C. Price, Trustee
STATE OF IDAHO )
:ss
County of ___________ )
On this ____ day of ______________________, in the year 2015, before me,
________________________, a Notary Public in and for said State, personally appeared Robert
Dale Price, known or identified to me (or proved to me on the oath of _________________), to
be a trustee of the trust that executed the instrument or the person who executed the instrument
on behalf of such trust, and acknowledged to me that such trust executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
STATE OF IDAHO )
:ss
County of ___________ )
On this ____ day of ______________________, in the year 2015, before me,
________________________, a Notary Public in and for said State, personally appeared Tressia
C. Price, known or identified to me (or proved to me on the oath of _________________), to be
a trustee of the trust that executed the instrument or the person who executed the instrument on
behalf of such trust, and acknowledged to me that such trust executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 23
OWNERS:
Lot 13, Block 1
______________________________ ______________________________
James Duffy McFarland Connie McFarland
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared James Duffy
McFarland, known or identified to me (or proved to me on the oath of _________________), to
be the person whose name is subscribed to the within instrument, and acknowledged to me that
he executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Connie
McFarland, known or identified to me (or proved to me on the oath of _________________), to
be the person whose name is subscribed to the within instrument, and acknowledged to me that
she executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 24
OWNERS:
Lot 8, Block 4
______________________________ ______________________________
George Wood Carrie Wood
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared George
Wood, known or identified to me (or proved to me on the oath of _________________), to be
the person whose name is subscribed to the within instrument, and acknowledged to me that he
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Carrie
Wood, known or identified to me (or proved to me on the oath of _________________), to be
the person whose name is subscribed to the within instrument, and acknowledged to me that she
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 25
OWNERS:
Lot 7, Block 5
______________________________ ______________________________
Phillip Tyler Garn Melanie Garn
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Phillip Tyler
Garn, known or identified to me (or proved to me on the oath of _________________), to be the
person whose name is subscribed to the within instrument, and acknowledged to me that he
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Melanie
Garn, known or identified to me (or proved to me on the oath of _________________), to be the
person whose name is subscribed to the within instrument, and acknowledged to me that she
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 26
OWNERS:
Lot 3, Block 6
SDH Construction, LLC
By: ______________________________
Its: _____________________________
STATE OF IDAHO )
:ss
County of ___________ )
On this ____ day of ______________________, in the year 2015, before me,
________________________, a Notary Public in and for said State, personally appeared
__________________________, known or identified to me (or proved to me on the oath of
_________________), to be a member or manager of the limited liability company that executed
the instrument or the person who executed the instrument on behalf of such limited liability
company, and acknowledged to me that such limited liability company executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 27
OWNERS:
Lot 7, Block 1
______________________________ ______________________________
Brian Glenn Page Kathryn L. Page
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Brian Glenn
Page, known or identified to me (or proved to me on the oath of _________________), to be the
person whose name is subscribed to the within instrument, and acknowledged to me that he
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Kathryn L.
Page, known or identified to me (or proved to me on the oath of _________________), to be the
person whose name is subscribed to the within instrument, and acknowledged to me that she
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires:
FIRST AMENDMENT TO DECLARATION – Page 28
OWNERS:
Lot 2, Block 5
______________________________
Melanee Sutton
STATE OF IDAHO )
:ss
County of _____________ )
On this ____ day of _____________, in the year 2015, before me, __________________
____________________, a Notary Public in and for said State, personally appeared Melanee
Sutton, known or identified to me (or proved to me on the oath of _________________), to be
the person whose name is subscribed to the within instrument, and acknowledged to me that she
executed the same.
________________________________
Notary Public
Residing at:
My Commission Expires: