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DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR
ALPINE HEIGHTS SUBDIVISON
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS ("Declaration"), dated February ____, 2024, by Alpine Heights, LLC, a Utah limited liability company (hereinafter
called the “Declarant”).
R E C I T A L S
WHEREAS, Declarant is the owner of certain land located in Madison County, Idaho (the “County”), as shown on the plats entitled, “Alpine Heights Subdivision”, and recorded among the
Official Records of Madison County (Official Records”), as Entry No. ________ in Book _____ at Page __, as amended from time to time (the “Plat”).
WHEREAS, Declarant desires to subject the Property (defined below) and the lots located therein (the "Lots"), to the covenants, conditions, restrictions, and easements set forth below,
which are for the purpose of protecting the value and desirability of the Property and the Lots.
WHEREAS, Declarant hereby declares that the Property shall be held, sold and conveyed subject to the Covenants, Conditions, Restrictions, and Easements set forth below.
ARTICLE I
DEFINITIONS
The following words when used in this Declaration (unless the context otherwise requires) shall have the following meanings:
1.1 “Builder” shall mean and refer to Hamlet Homes, Inc, which shall, in the ordinary course of business, construct a dwelling on a Lot and sell or lease it to another person to occupy
as such person’s residence.
1.2 "Community" shall mean and refer to the community known as “Alpine Heights” located in Madison County, Idaho.
1.3 "Declarant" shall mean and refer to Alpine Heights, LLC, and any successor or assign thereof to whom it shall expressly (a) convey or otherwise transfer all of its right, title and
interest in the Property as an entirety, without reservation of any kind; or (b) transfer, set over and assign all of its right, title and interest under this Declaration, or any amendment
or modification thereof.
1.4 "Development Period" shall mean a period ending on the sooner to occur of the following: (a) ten (10) years from the date this Declaration is recorded among the Official Records,
or (b) the date Declarant or Builder no longer own any Lots in the Community.
1.5 "Property" shall mean and refer to all of the real property described in Exhibit “A” attached hereto.
1.6 "Record Owner" or "Owner" shall mean, refer to and include the person, firm, corporation, trustee, or legal entity, or the combination thereof, including contract sellers, holding
the fee simple record title to a Lot, as said Lot is now or may from time to time hereafter be created or established, either in his, her, or its own name, as joint tenants, tenants
in common, tenants by the entireties, or tenants in copartnership, if the Lot is held in such real property tenancy or partnership relationship. If more than one (1) person, firm,
corporation, trustee, or other legal entity, or any combination thereof, hold the record title to any one (1) Lot, whether it is in a real property tenancy, or partnership relationship,
or otherwise, all of the same, as a unit, shall be deemed a single Record Owner. The term "Record Owner," however, shall not mean, refer to or include any contract purchaser, nor the
owner of any redeemable ground rent issuing out of any Lot nor shall it include a Mortgagee.
1.7 "Structure" means anything or device the placement of which upon the Property (or any part thereof) may affect the appearance of the Property (or any part thereof) including, by
way of illustration and not limitation, any building, trailer, garage, porch, shed, greenhouse, bathhouse, coop or cage, covered or uncovered patio, clothesline, radio, television or
other antenna or "dish", fence, sign, curbing, paving, wall, roadway, walkway, exterior light, landscape, hedge, trees, shrubbery, planting, signboard or any temporary or permanent
living quarters (including any house trailer), or any other temporary or permanent improvement made to the Property or any part thereof. "Structure" shall also mean (i) any excavation,
fill, ditch, diversion, dam or other thing or device which affects or alters the natural flow of surface waters from, upon or across the Property, or which affects or alters the flow
of any waters in any natural or artificial stream, wash or drainage channel from, upon or across the Property, and (ii) any change in the grade of the Property (or any part thereof)
of more than six (6) inches from that existing at the time of first ownership by a Record Owner hereunder other than the Declarant.
ARTICLE II
COVENANTS, CONDITIONS AND RESTRICTIONS
2.1 LAND USE. The Lots, except as hereinafter provided, shall be used for private and residential purposes only and in no event shall any dwelling be used at any time for any commercial
purpose, provided however, that the foregoing shall not preclude a home-based business, as more fully described below. None of the Lots shall at any time be used for apartments; it
being the intention of the Declarant that each and every one of the Lots be used solely for residential dwellings, and no other purposes, except such purposes as may be specifically
reserved
in the succeeding sections of this Declaration; and further, provided, that accessory dwellings may be permitted provided the same are allowable by applicable law (including, without
limitation, zoning laws) and the Architectural Review Committee has approved the same in accordance with the provisions below.
2.2 ADMINISTRATION; ARCHITECTURAL REVIEW COMMITTEE. The Architectural Review Committee shall consist of either one (1) or three (3) persons who shall be appointed by the Declarant during
the Development Period. Initially, Jon Southern, Travis Morris and Brent Bement shall serve as the members of the Architectural Review Committee. The Declarant shall retain the sole
right to appoint, augment or replace the entity or members of the Architectural Review Committee until the expiration of the Development Period; provided that Declarant may, at its
sole option, grant the power to appoint such members in accordance with the provisions below in Section 2.2. At any time during the Development Period, the initial members of the Architectural
Review Committee may be replaced for any reason (including death or resignation) with other individuals selected by the Declarant in its sole discretion. No members selected by Declarant
need be Owners to serve on the Committee. All questions shall be decided by a majority of the members of the Architectural Review Committee, and such majority shall be necessary and
sufficient to act in each instance and on all matters. Each member of the Architectural Review Committee now or hereafter appointed, shall act without compensation for services performed
pursuant to this Declaration.
In the event of the death or resignation of a member of the Architectural Review Committee during the Development Period, the Declarant shall select a new member. During the Development
Period, Declarant may, in his sole discretion, at any time, grant the powers and authority conferred upon the Declarant in this Section to Owners by notifying all Owners, in writing,
of this election to make such grant. Not later than thirty (30) days following said written notice, Owners, at a meeting duly called by Declarant upon at least ten (10) days prior written
notice, shall by majority vote (with each Lot allotted 1 vote), designate in writing three (3) members of the Architectural Review Committee, all of whom shall be at all times Owners.
Except as set forth above, within ninety (90) days after the Development Period has expired, Declarant shall send written notice to all Owners that the Development Period has expired
and that new members of the Architectural Review Committee should be elected. At such meeting, each Owner shall vote for three (3) members of the Architectural Review Committee, provided
that each Lot is allocated one (1) vote, irrespective of the number of Owners of such Lot. The three (3) persons receiving the highest number of votes at the meeting shall each receive
a term of two (2) years. Each year, at least thirty (30) and no more than ninety (90) days prior to the end of the two (2) year term, the current members of the Architectural Review
Committee shall send written notice of the meeting to elect new members to all Owners. At the meeting, the Owners shall elect the new members of the Architectural Review Committee in
accordance with the preceding procedure set forth above in this paragraph.
After the Development Period has expired, in the event of the death or resignation of a member of the Architectural Review Committee, or in the event a Committee member shall
cease to be an Owner, the remaining members of the Architectural Review Committee shall promptly name the new member in writing and in such event, all Owners shall be notified by the
Architectural Review Committee of the name of the new member.
2.3 ARCHITECTURAL REVIEW.
(a) No Structure (other than construction or development by, for or under contract with Declarant or Builder) shall be constructed on any Lot nor shall any addition (including awnings
and screens), change, or alteration therein or thereto (including any retreatment by painting or otherwise of any exterior part thereof unless the original color and material are used)
(collectively, "Alterations") be made to the exterior of any Structure and/or contour of any Lot, nor shall any work be commenced or performed which may result in a change of the exterior
appearance of any Structure until the plans and specifications, showing the nature, kind, shape, dimensions, material, floor plans, color scheme, location, proposed topographical changes,
the proposed construction schedule, and a designation of the party or parties to perform the work, have been submitted to and approved in writing by the Architectural Review Committee,
its successors and assigns, and until all necessary permits and any other governmental or quasi-governmental approvals have been obtained. The approval of the Architectural Review Committee
of any Structure or Alterations shall in no way be deemed to relieve the Record Owner of any Lot from its obligation to obtain any and all permits and approvals necessary for such Structure
or Alterations. Alpine Heights, LLC and Hamlet Homes, Inc have had their plans, elevations, and colors pre-approved and are not required to go through the ARC review process.
(b) The Architectural Review Committee shall consider applications for approval of plans and specifications upon the basis of conformity with this Declaration, applicable law and the
design guidelines, if any, and shall be guided by the extent to which such proposal will insure conformity and harmony in exterior design and appearance, based upon, among other things,
the following factors: the quality of workmanship; nature and durability of materials; harmony of external design with existing structures; choice of colors; changes in topography,
grade elevations and/or drainage; the ability of the party or parties designated by the Record Owner to complete the Structure or Alterations proposed in accordance with this Declaration,
including, without limiting the foregoing, factors of public health and safety; the effect of the proposed Structure or Alterations on the use, enjoyment and value of other neighboring
properties, and/or on the outlook or view from adjacent or neighboring properties; and the suitability of the proposed Structure or Alterations with the general aesthetic appearance
of the surrounding area.
(c) The Architectural Review Committee shall have the right to refuse to approve any such plans or specifications, including grading and location plans, which are not suitable or desirable
in its opinion, for aesthetic or other considerations. Written requests for approval, accompanied by the foregoing described plans and specifications or other specifications and information
as may be required by the Architectural Review Committee from time to time shall be submitted to the Architectural Review Committee by registered or certified mail or in person. The
Architectural Review Committee shall make best efforts to approve or disapprove any plans within sixty (60) days of receipt thereof. All approvals must be in writing; provided,
however, if requests are sent as provided herein, then if the Architectural Review Committee does not submit its decision within one hundred twenty (120) days from the date of receipt,
then approval shall be implied. Approval of any particular plans and specifications or design shall not be construed as a waiver of the right of the Architectural Review Committee
to disapprove such plans and specifications, or any elements or features thereof, in the event such plans and specifications are subsequently submitted for use in any other instance.
The Architectural Review Committee shall have the right to charge a reasonable processing fee for such requests, which shall be retained by the Architectural Review Committee.
(d) Construction of Alterations in accordance with plans and specifications approved by the Architectural Review Committee pursuant to the provisions of this Article II shall be commenced
within three (3) months following the date of approval and completed within six (6) months of commencement of the Alterations, or within such other period as the Architectural Review
Committee shall specify in its approval. In the event construction is not commenced within the period aforesaid, then approval of the plans and specifications by the Architectural
Review Committee shall be conclusively deemed to have lapsed and compliance with the provisions of this Article shall again be required. After construction, all Structures and Alterations
shall be maintained continuously in strict conformity with the plans and specifications so approved and all applicable laws.
(e) If any Structure is altered, erected, placed or maintained on any Lot other than in accordance with approved plans and specifications therefor and applicable law, such action shall
be deemed to be a violation of the provisions of this Declaration and, promptly after the Architectural Review Committee gives written notice thereof to its Record Owner, such Structure
shall be removed or restored to its condition prior to such action, and such use shall cease, so as to terminate such violation. If within thirty (30) days after having been given
such notice, such Record Owner has not taken reasonable steps to terminate such violation, the Architectural Review Committee, and its agents, may enter upon such Lot and take such
steps as are reasonably necessary to terminate such violation. Such Record Owner shall be personally liable for the cost thereof and, upon the failure of the Record Owner to pay such
cost within ten (10) days after such Record Owner's receipt of written demand therefor from the Architectural Review Committee, the Architectural Review Committee may establish a lien
therefor upon such Lot in accordance with and subject to the provisions of Idaho law and/or any other available legal proceeding.
(f) Any member of the Architectural Review Committee, upon the occurrence of a violation of the provisions of this Declaration, and after the Architectural Review Committee gives written
notice thereof to the Record Owner of the applicable Lot, at any reasonable time, may enter upon and inspect any Lot and the exterior of any Structure thereon to ascertain whether the
maintenance, construction or alteration of such Structure or Alteration are in accordance with the provisions hereof.
(g) Upon completion of construction of any Structure or Alteration in accordance with the provisions hereof, the Architectural Review Committee, upon request of the applicant shall issue
a Certificate of Compliance ("Certificate") identifying such Structure and the
Lot on which such Structure is placed and stating that the Structure has been completed pursuant to the terms hereof. The Certificate shall be retained in the records of the Architectural
Review Committee. Any Certificate issued pursuant hereto shall be prima facie evidence of the facts therein stated, and as to any title insurer, such Certificate shall be conclusive
evidence that all Structures on the Lot noted in the Certificate complies with the provisions hereof.
2.4 SWIMMING POOLS. In-ground pools, spas and Jacuzzi shall be permitted on any Lot if the same have been approved in advance by the Architectural Review Committee in its sole and absolute
discretion, in accordance with the provisions hereof.
2.5 TEMPORARY STRUCTURES; BUILDINGS; OUTSIDE STORAGE. No Structure of a temporary character, including, without limitation, a trailer, tent, shack, garage, children’s play equipment,
barn, pen, kennel, run, stable, outdoor clothes dryer or other building shall be erected, used (for any purpose whatsoever) or maintained on any Lot at any time, without the prior written
consent of the Architectural Review Committee, except that during the construction process of dwellings, a temporary building or structure may be erected, installed or maintained on
a Lot with the prior written approval of the Architectural Review Committee, including the approval of the Structure’s location and appearance and further, provided such temporary structures
shall be removed immediately after completion of such construction, and that portion of the Lot from which the same is removed shall be promptly placed in such condition as is otherwise
required by this Declaration. Except during construction, no materials, supplies, equipment, finished or semi-finished products or articles of any nature shall be stored on any area
outside of a building unless approved in advance in accordance with Section 2.3 above.
Any permitted outside storage shall be screened by a solid visual barrier so as not to be visible from neighboring property, provided, however, that during construction of improvements
on any Lot, necessary construction materials and supplies may be stored on the Lot without the need for a solid visual barrier providing such materials and supplies are kept in neat
order considering the construction activities. The Architectural Review Committee is authorized to designate the areas and manner in which supplies of building materials and construction
equipment shall be stored and the routes construction vehicles may use. All such designations shall be reasonable.
In addition, nothing herein shall preclude an Owner from placing upon its Lot reasonably sized garden sheds, greenhouses or other similar accessory structures approved in advance by
the Architectural Review Committee. All sheds shall be on the Lot and shall be of materials harmonious with the exterior of the dwelling. Permanent basketball apparatus shall be prohibited
on any Lot. Temporary basketball apparatus shall be prohibited on any Lot unless the Architectural Review Committee decides to permit the same, in its sole and absolute discretion.
2.6 ANIMALS. No animal, livestock, poultry or fowl of any kind other than a reasonable number of generally recognized house pets, shall be maintained on or in any Lot or
dwelling and then only if they are kept or raised thereon solely as domestic pets and not for commercial purposes. No house pets shall be permitted to make an unreasonable amount of
noise
or create a nuisance. No Structure for the care, housing or confinement of any permitted pet shall be visible from neighboring property. The Architectural Review Committee shall have
the right by Rules and Regulations or otherwise to determine what shall constitute a generally recognized house pet and shall limit the number of house pets to four (4) per Lot.
2.7 NUISANCES. No noxious or offensive trade or activity shall be carried on upon any Lot, nor shall anything be done or placed thereon which may become an annoyance or nuisance to
the neighborhood or any adjoining property owners. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except
such properly maintained and operated devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any dwelling or upon the
exterior of any other Structure constructed upon any Lot. No snowmobiles, go-carts, motorbikes, trail bikes, other loud-engine recreational vehicles or skateboard ramps shall be run
or operated upon any Lot or upon any roadways serving the Property, which create an annoyance or nuisance to the Community.
2.8 NEAT APPEARANCE. Owners shall, at all times, maintain their Lots and all appurtenances thereto in good repair and in a state of neat appearance, including but not limited to, the
seeding, watering and mowing of all lawns and yards, keeping all sidewalks, if any, neat, clean and in good repair, and free of ice and snow, the pruning and cutting of all trees and
shrubbery and the painting (or other appropriate external care) of all Structures on the Lot, all in a manner and with such frequency as is consistent with good property management
and maintenance. If, in the opinion of the Architectural Review Committee, any Owner fails to perform the duties imposed hereunder, the Architectural Review Committee, on affirmative
action of a majority of the Owners, after fifteen (15) days written notice to such Owner to remedy the condition in question, and upon failure of the Owner to remedy the condition,
the Architectural Review Committee or its duly authorized representatives shall have the right (but not the obligation), to enter upon the Lot in question and to repair, maintain, repaint
and restore the Lot and the improvements or Structures thereon, and the cost thereof shall be a binding, personal obligation of such Owner, and may be enforced under applicable law.
2.9 VEHICLES. As used in this Section: (a) “Motor Vehicle” means a car, van, sport utility vehicle, bus, truck, recreational vehicle, motor home, motorcycle, all-terrain vehicle, utility
vehicle, pickup truck or other motor vehicle; (b) "Recreational Vehicle" means any (1) boat, boat trailer, camp truck, camp trailer, golf cart, house trailer, personal watercraft, snowmobile,
recreational bus or similar vehicle, motor home, camper van or all-terrain vehicle, or (2) other powered or unpowered vehicle designed primarily for use for sports or recreational purposes;
and (c) and “Streets” means the streets shown on any Plat of the Property.
No mobile home, travel trailer, tent trailer, trailer, camper shell, boat trailer or other similar equipment or vehicle may be parked, kept or stored on the Streets,
except that the Architectural Review Committee may adopt Rules and Regulations governing the subject matter and further restricting such parking or establishing limited exceptions thereto,
such as for loading and unloading, emergencies, and the like.
Recreational Vehicles may not be parked on any Street or sidewalk in the Community at any time.
Except for emergency repairs, no Motor Vehicle be constructed, restored or repaired on a Lot at a location visible from outside a garage or other building thereon or any neighboring
property, other than minor repairs such as oil, filter, battery, belt, wiper, light and tire changes, or emergency repairs which cannot reasonably be performed elsewhere, in each case
if performed (1) on a Motor Vehicle owned by an Owner or resident of, and customarily kept on, such Lot, (2) using all appropriate environmental safeguards, and (3) in a continuous
and timely manner. With respect to any Motor Vehicle parked on the Streets, any such Motor Vehicle shall be operable, current on registration and licensing and maintained in a first-class
condition and such Motor Vehicle may not be parked on the Streets for any longer than seventy-two (72) hours at a time.
The Architectural Review Committee shall have the right and power to adopt Rules and Regulations governing and further restricting the parking of Motor Vehicles
on Lots or the Streets and implementing the provisions of this Section and establishing certain exceptions that may in certain cases be warranted. In the event of any conflict or inconsistency
between the provisions of this Section and the rules and regulations adopted by the Architectural Review Committee, the provisions of this Section shall control.
Further, a Commercial Vehicle may be parked on a driveway if such Vehicle is located on the driveway for the purpose of rendering a service to the Owner or resident of the Lot and further,
provided, such Commercial Vehicle is not stored on the driveway any longer than six (6) hours on any particular day. The Architectural Review Committee may promulgate such additional
Rules and Regulations in this regard as it deems necessary or desirable.
The provisions of this Section 2.9 shall not be applicable to Declarant or Builder during the Development Period.
2.10 SIGNAGE. No advertising, for sale or display signs of any character shall be placed or maintained by Owners on any part of the Property or on any dwelling or Structure, except
for:
(a) Signage deemed necessary and appropriate by the Declarant or its successors and assigns (or any Builder if Declarant has consented in writing);
(b) signs required by legal proceedings;
(c) a maximum of 2 identification signs for dwellings, each with a maximum face area of 576 square inches (i.e., standard “For Rent” sign size) or less;
(d) such other signs as the Rules and Regulations may permit, including signs necessary for marketing, rentals, and sales by Declarant and Builder; and
(e) Any signs approved by Declarant during the Development Period.
Builders shall have permission to install “for sale” and marketing signs on their lots. The foregoing restrictions shall be subject to such limitations and
privileges as are established at law, including for the placement of political signs and signs pertaining to candidates for political office or to other such protected matters.
After providing notice to any Owner that a sign is in violation of the governing documents, the Architectural Review Committee has the right to remove such signs
from the Common Areas or the Lot and to dispose of such signs. The Architectural Review Committee has an easement over any Lot for this express purpose and in exercising its easement
rights is not guilty of trespassing.
2.11 LIGHTING AND WIRING. The exterior lighting on Lots shall be directed downward and shall not be directed outward from, or extend beyond, the boundaries of
any Lot. All wiring on any Lot shall be underground.
2.12 ANTENNAE AND DISHES; SOLAR DEVICES. No television, radio, or other electronic towers, aerials, antennae, satellite dishes or device of any type for the
reception or transmission of radio or television broadcasts or other means of communication shall hereafter be erected, constructed, placed or permitted to remain on any Lot, in any
dwelling, or upon any improvements thereon, except that this prohibition shall not apply to those antennae specifically covered by 47 CFR Part 1, Subpart S, Section 1.4000 (or any successor
provision) promulgated under the Telecommunications Act of 1996, as amended from time to time.
The Architectural Review Committee shall be empowered to adopt rules governing the types of antennae that are permissible hereunder, and to establish reasonable,
non-discriminatory restrictions relating to location and safety of antenna structures.
To the extent that reception of an acceptable signal would not be impaired, an antenna permissible pursuant to the provisions herein may only be installed in
a side or rear yard location, not visible from neighboring property, or integrated with the dwelling and surrounding landscaping to prevent or limit such visibility. Antennae shall
be installed in compliance with all applicable laws and regulations.
Notwithstanding the foregoing, nothing herein shall limit the placement of antennas, microwave reception or communication equipment, fiber optic facilities, or
other such equipment which Declarant may approve.
No solar heating or cooling equipment or other visible solar device may be installed or erected without approval of the Architectural Review Committee, which
shall give due regard to state law restricting the limitation of such devices. To the extent permitted by law, any such equipment installed on a dwelling or on a Lot shall be designed
to integrate into the architecture of the improvements upon the Lot or into the dwelling and shall not detract from the
aesthetics of the improvements.
2.13 CLOTHESLINES. No outside clotheslines or other facilities for drying or airing clothes shall be placed on any Lot, without the prior written consent of ARC, unless
they are not visible from neighboring property.
2.14 INTENTIONALLY OMITTED.
2.15 TRAFFIC VIEW, YARDS; FENCES AND WALLS; LANDSCAPING. No Structure, landscaping, shrubbery or any other obstruction shall be placed on any Lot so as to block the clear
view of traffic on any streets, nor shall any planting be done on any corner Lots closer than twenty feet (20') from either street line that will exceed three (3) feet in height (except
shade trees which shall be trimmed so that a clear view may be maintained to the height of eight (8) feet). No lawn ornaments or improvements of any kind shall be erected, placed or
planted without the prior approval of the Architectural Review Committee. No fence, wall or other similar enclosure may be built on any Lot, except a fence, which includes a side yard
fence on a corner Lot. The fence shall not extend past the front corner of the house and shall not exceed six (6) feet in height and shall not impede surface drainage. The height restriction
shall apply to enclosures of patios and open gardens, privacy screens and work area screens or to any required height of fences surrounding any approved in-ground pools, but shall not
apply to retaining walls required by topography, where such enclosures are approved in advance by the Architectural Review Committee; provided they do not extend beyond the minimum
building lines to any Lot line, and further, provided, that they are located to the rear of the front face of the Structure. Under no circumstances, however, may such enclosures exceed
a height of six (6) feet. No fences, walls or hedges shall be erected or placed nearer to any street Lot line than the minimum building line. Such enclosures may extend beyond the
minimum building line to a Lot line, provided any such enclosure is fifty percent (50%) "see-through." All gates must open inward onto a Lot and shall not open onto another Lot. All
fences and walls (except such fences and walls as may be installed and/or constructed by Declarant or Builder simultaneously with the initial construction of a dwelling on a Lot by
Declarant or Builder in accordance with plans and specifications approved by Declarant) must receive the prior written approval of the Architectural Review Committee. Any such fence
or wall shall be decorative in character (rail, picket, etc.), and not of chain link or chicken wire, except for wire mesh behind a vinyl fence. The foregoing restriction shall not
be construed to prohibit the growth of an ornamental hedge fence, which shall be kept neatly trimmed, and shall be trimmed to a hedge of not more than three (3) feet in the front yard
of any Lot and the side yard of corner Lots.
In addition to any other provisions herein, no later than twelve (12) months after settlement of a Lot, each Owner shall be responsible to fully landscape the front yard of such Lots
(which is deemed to include the area between the front façade of the dwelling to the back of the curb) and in particular, each Owner shall install a minimum of sod and landscaping (i.e.,
trees and shrubs) in the front yard. Further, each front yard must have a minimum of forty percent (40%) live plant material, which includes sod, and contain a minimum of one (1) deciduous
tree in addition to the trees located in the park strip. Plant material shall be placed in a manner which
highlights home entrances, and screen utilities and the foundation of the dwelling. In addition, a functioning irrigation system shall be required for all landscaped areas.
2.16 SUBDIVISION. No Lot shall be divided or subdivided and no portion of any Lot (other than the entire Lot) shall be transferred or conveyed for any purpose; provided, however, this
shall not prohibit transfers of parts of Lots between adjoining Lot Owners where the transfer is not for the purpose of creating a new building Lot. The provisions of this subsection
shall not apply to the Declarant and, further, the provisions hereof shall not be construed to prohibit the granting of any easement or right-of-way to any person for any purpose.
2.17 TRASH AND OTHER MATERIALS. No garbage or trash shall be allowed, stored or placed on a Lot, except in sanitary, covered containers. In no event shall such containers be visible
from neighboring property, except for a reasonable time immediately prior to and after collection. All trash and garbage shall be regularly removed from each Lot and shall not be allowed
to accumulate thereon. The Architectural Review Committee may establish Rules and Regulations as to the times and duration that waste containers may be visible from neighboring property
or pick-up and may determine and regulate the type and appearance of waste containers.
2.18 MACHINERY AND EQUIPMENT. No machinery or equipment of any kind shall be placed, operated, stored or maintained upon any Lot, except:
during the period of construction, such machinery or equipment as is usual and customary in connection with the use, maintenance or construction of a building, appurtenant structures
or improvements thereon; or
(b) that which Declarant, Builder or the Architectural Review Committee may require for the development, operation and maintenance of the Property or other portions of the
Property.
2.19 NON-INTERFERENCE WITH UTILITIES. No Structure, planting or other material shall be placed or permitted to remain upon any Lot which may damage or interfere with any easement for
the installation or maintenance of utilities, or which may unreasonably change, obstruct or retard direction or flow of any drainage channels. No poles and wires for the transmission
of electricity, telephone and the like shall be placed or maintained above the surface of the ground on any Lot.
2.20 NO HUNTING. No hunting or discharge of firearms or weapons of any nature whatsoever shall be permitted on the Property or any Lot.
2.21 NO EXCAVATION. No excavation shall be made on any Lot except for the purpose of building thereon at the time when the building operations are commenced, and no earth or sand shall
be removed from any Lot except as a part of such operations.
2.22 TREE REMOVAL. No Owner shall have the right to remove any of the
healthy growing trees located on any of the Lots within the subdivision except upon Architectural Review Committee approval.
2.23 INTENTIONALLY OMITTED.
2.24 HOME OCCUPATIONS. No gainful occupation, profession, trade, or other nonresidential use shall be conducted on or in any Lot, Declarant and Builder may maintain sales offices,
construction offices and sales models on the Property and an Owner or resident may carry on a “Home Occupation” as provided below.
A “Home Occupation” as permitted hereby means work within the dwelling (such as the performance of accounting work, creation of artwork, etc.), provided that:
(a) the existence or operation of the business activity is not apparent from the outside of the dwelling and no sound or smell from the outside of the dwelling indicating
the conduct of business is detectable;
(b) the business activity conforms to all zoning requirements for the Lot; and
(c) the business activity does not involve traffic by persons who do not reside therein, nor regular arrival of employees of the Owner or any resident; and
(d) the business activity is lawful and consistent with the residential character of the neighborhood and does not constitute a nuisance or hazard or offensive use within
the Property, as determined in the discretion of the Architectural Review Committee.
If the Architectural Review Committee determines that the Home Occupation violates the provisions hereof, then the Architectural Review Committee shall have the authority
to require that the Home Occupation in question cease immediately. In no event shall any form of detention house, reform school, rooming or boarding house, sanatorium, or any form of
group home whether or not providing services to occupants, be permitted within the Property, except that this prohibition shall not apply to group homes or similar living or care arrangements
which by state or federal law may not be prohibited by enforcement of private restrictive covenants.
2.25 ENVIRONMENTAL COVENANT. Owners are advised that the Property is subject to that certain Environmental Covenant recorded or intended to be recorded among the Official
Records. Among other things, the Environmental Covenant contains the following: (a) certain activity and use limitations affecting the Property; (b) compliance enforcement provisions;
(c) right of access; (d) compliance reporting; and (e) a requirement that each instrument conveying any interest in any portion of the Property (including any individual Lot) described
in the Environmental Covenant must: (i) contain a notice that the Property is subject to the Environmental Covenant; (ii) provide the recorded location of the Environmental Covenant
among the Official Records; and (iii) notification within twenty (20) days after conveyance of any
interest in the Property with the information specified in the Environmental Covenant. A copy of the Environmental Covenant is attached hereto as Exhibit “B”.
2.26 MINERAL EXPLORATION; PROHIBITION OF WELLS. No Lot shall be used in any manner to explore for, quarry, mine, remove or transport any water, oil or other hydrocarbons,
minerals, gravel, gas, earth or any earth substance of any kind, by well, derrick or otherwise, except in each case as Declarant shall specifically approve.
2.27 DISEASES AND INSECTS. No Owner or resident shall permit anything or condition to exist upon any Lot or dwelling, which may induce, breed or harbor infectious plant
or animal diseases or noxious insects.
2.28 USE OF GARAGES. Vehicles shall be kept in garages where adequate space exists, or in other designated parking areas. No garage doors shall be permitted to remain
open except for a temporary purpose.
The Architectural Review Committee may adopt additional parking restrictions as part of the Rules and Regulations, including the establishment of fines and assessments
for their violation, enforceable as all other Assessments and in the same manner as other provisions of this Declaration.
2.29 ENFORCEMENT. The covenants, conditions, and restrictions contained herein (the "Covenants") shall run with and bind the Property and shall be enforceable by the Declarant and
by the Owners of all or any portion of the Property during the term of this Declaration. All or any part of the rights and powers (including discretionary powers and rights) reserved
by or conferred upon the Declarant by this Declaration may be assigned or transferred by the Declarant to any successor developer of all or any part of the Property, or to the Architectural
Review Committee or any other party. Any such assignment or transfer shall be evidenced by an appropriate instrument recorded among the Official Records and upon recordation thereof
the grantee or grantees of such rights and powers shall thereafter have the right to exercise and perform all of the rights and powers reserved by or conferred upon the Declarant by
this Declaration.
Enforcement of the Covenants shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, either to restrain
the violation or to recover damages, including court costs and attorney's fees.
2.30 DECLARANT AND BUILDER EXEMPTION. The provisions of Article II concerning architectural control or use restrictions shall in no event apply to any aspect
of the Declarant's or Builder’s activities and, notwithstanding any provisions of this Declaration, none of the Declarant's or Builder’s construction activities or any other activities
associated with the development, marketing, construction, sales management or administration of the Community shall be deemed noxious, offensive or a nuisance.
2.31 RULES AND REGULATIONS.
(a) The Architectural Review Committee shall have the power to adopt and amend rules and regulations (“Rules and Regulations”) regarding the use of the Lots or other matters as to
which the Architectural Review Committee is expressly granted such power by this Declaration, which shall be binding on each Owner and resident, provided such Rules and Regulations
are mailed to each Owner, provided in no event may any Rules and Regulations be adopted and/or amended by the Architectural Review Committee without Declarant’s prior written consent
during the Development Period. In furtherance of the foregoing, (i) the Architectural Review Committee, to the extent of its functions hereunder and rights specifically provided herein,
may, adopt and promulgate, amend, modify or repeal Rules and Regulations regarding the administration, interpretation and enforcement of the provisions of this Declaration, and (ii)
Declarant grants to the Architectural Review Committee, its successors and assigns, the right to waive as to any Lot or all Lots, such portion or portions of covenants and restrictions
set forth in this Declaration as the Architectural Review Committee, in its sole discretion, may deem advisable in the reasonable interests of the subdivision without impairing the
validity or enforceability of these covenants and restrictions in any manner whatsoever.
ARTICLE III
RESERVED RIGHTS AND EASEMENTS
3.1 RESERVED RIGHTS OF THE DECLARANT.
(a) DEVELOPMENT EASEMENTS.
(i) Easement to Facilitate Development. The Declarant hereby reserves to itself and its designees a non-exclusive blanket easement over and through the Property for all purposes
reasonably related to the development and completion of improvements on the Property, including without limitation: (a) temporary slope and construction easements; (b) drainage, erosion
control and storm and sanitary sewer easements including the right to cut or remove trees, bushes or shrubbery, to regrade the soil and to take any similar actions reasonably necessary;
provided, however, that thereafter the Declarant shall restore the affected area as near as practicable to its original condition; and (c) easements for the construction, installation
and upkeep of improvements (e.g., buildings, landscaping, street lights, signage, etc.) on the Property or reasonably necessary to serve the Property.
(ii) Easement to Facilitate Sales. The Declarant hereby reserves to itself and its designees and to the Builder, the right to: (a) use any Lots owned or leased by the Declarant or
Builder, and any other Lot with the written consent of the Owner thereof, as models, management offices, customer service offices or sales office parking areas; and (b) place and maintain
in any location on within any storm water management area, and on any Lot, street and directional signs, temporary promotional signs, temporary construction and sales offices, plantings,
street lights, entrance features, "theme area" signs, lighting, stone, wood or masonry walls or fences and other related signs and landscaping features; provided however, that all signs
shall comply with applicable governmental regulations and the Declarant or Builder, as applicable, shall obtain the consent of the Owner of any affected Lot or of the Architectural Review
Committee if the Owner does not consent.
(iii) Landscaping Easement. The Declarant hereby reserves to itself and its successors and assigns, an easement and the right to grant and reserve easements over and through the
Property for the purpose of construction, installation, irrigation and maintenance of landscaping features, including without limitation, plants, trees and earth berms and other earth
contouring and signs which shall include access as necessary to perform such tasks. The Owner of a Lot burdened by such an easement shall not construct any improvements within the
easement without the permission of the Declarant during the Development Period.
(iv) Storm Water Management and Sanitary Sewer Easement. The Declarant hereby reserves to itself and its successors and assigns an easement and the right to grant and reserve easements
over and through the Property for the construction and upkeep of any storm water management facilities, including storm water retention areas and sanitary sewer facilities. Declarant
reserves unto itself and its successors and assigns the right to enter into agreements for the use and sharing of expenses relating to any off-site storm water management facilities.
(v) Relocation Easements. The Declarant hereby reserves unto itself the right to relocate, change or modify, from time to time, any and all streets, roadways and utility easements,
which may be located within the Property, and to create new streets, roadways and utility easements therein.
(vi) Completion Easements and Rights of Declarant and Builder. Declarant further reserves unto itself, for itself and its successors and assigns, and to the Builder, the right, notwithstanding
any other provision of the Declaration, to use any and all portions of the Property, for all purposes necessary or appropriate to the full and final completion of construction of the
Community. Specifically, none of the provisions of Article II concerning architectural control or use restrictions shall in any way apply to any aspect of the Declarant's or Builder’s
development or construction activities and notwithstanding any provisions of this Declaration, none of the Declarant's or Builder’s construction activities or any other activities associated
with the development, marketing, construction, sales management or administration of the Community shall be deemed noxious, offensive or a nuisance. The Declarant reserves the right
for itself, and its respective successors and assigns, and Builder to store materials, construction debris and trash during the construction period on the Property without keeping same
in containers.
(vii) Other Declarant Easements. Declarant reserves for itself, its successors and assigns a non-exclusive easement and right-of way on any Lot which it holds record title to
for the purpose of storage of building supplies, materials and equipment.
The designation of streets, avenues, roads, courts and places upon the Plat is for the purpose of description only and not dedication, and the rights of the Declarant
in and to the same
are specifically reserved, and the Declarant hereby reserves unto itself, and its successors and assigns, the right to grade, regrade and improve the streets, avenues, roads, courts
and places as the same may be located on the Plat, including the creation or extension of slopes, banks, or excavation in connection therewith and in the construction of and installation
of drainage structures therein. The Declarant further reserves unto itself, and its successors and assigns, the bed, in fee, of all streets, avenues and public highways in the Community,
as shown on the Plat.
Declarant further reserves unto itself, and its successors and assigns, the right to grant easements, rights-of-way and licenses to any person, individual, corporate
body or municipality, to install and maintain pipelines, underground or above-ground lines, with the appurtenances necessary thereto for public utilities, or quasi-public utilities
or to grant such other licenses or permits as the Declarant may deem necessary for the improvement of the Community in, over, through, upon and across any and all of the roads, streets,
avenues, alleys, and open space and in, over, through, upon and across each and every Lot in any easement area set forth in this Declaration or as shown on the Plat.
Declarant further reserves unto itself and its successors and assigns, the right to dedicate all of said roads, streets, alleys, rights of way or easements, including easements
in the areas designated as "open space" and stormwater management reservation, to public use all as shown on the Plat. No road, street, avenue, alley, right of way or easement shall
be laid out or constructed through or across any Lot or Lots in the Community except as set forth in this Declaration, or as laid down and shown on the Plat, without the prior written
approval of the Architectural Review Committee.
Declarant further reserves unto itself and its successors and assigns, the right at or after the time of grading of any street or any part thereof for any purpose,
to enter upon any abutting Lot and grade a portion of such Lot adjacent to such street, provided such grading does not materially interfere with the use or occupancy of any Structure
built on such Lot, but Declarant shall not be under any obligation or duty to do such grading or to maintain any slope. Similarly, Declarant reserves the right unto itself, and its
successors and assigns, and, without limitation, the Architectural Review Committee, to enter on any Lot during normal business hours for the purpose of mowing the lawn thereon and
trimming such greenery as Declarant deems appropriate, but Declarant shall be under no obligation to do so. No right shall be conferred upon any Owner by the recording of any plat
relating to the development of the Property in accordance with such plat, Declarant expressly reserving unto itself the right to make such amendments to any such plat or plats as shall
be advisable in its best judgment and as shall be acceptable to public authorities having the right to approval thereof.
ARTICLE IV
PROPERTY SUBJECT TO THIS DECLARATION;
DEANNEXATION
4.1 PROPERTY. The real property which is, and shall be, transferred, held,
sold, conveyed and occupied subject to this Declaration is located in the Community, and is described on Exhibit "A" attached hereto, all of which real property is referred to herein
as the "Property".
4.2 DEANNEXATION. Declarant may de-annex any land from the Property for a period of five (5) years from the date of recordation of this Declaration. Such deannexed property shall
no longer be subject to the covenants and restrictions of this Declaration except for any easements, rights, reservations, exemptions, power or privileges reserved to the Declarant
pursuant to this Declaration which burden the deannexed property for the benefit of any property, which is subject to the Declaration. Such deannexation shall be made by recording
a supplementary declaration among the Official Records of the County, withdrawing the effect of the covenants and restrictions of this Declaration from the deannexed property. Such
deannexed property may be utilized by the Declarant, or any successor, assign or transferee thereof, for any lawful purpose or use.
ARTICLE V
MISCELLANEOUS
5.1 TERM. This Declaration shall run with the land and shall be binding for a period of forty (40) years from the date this Declaration is recorded, after which
time this Declaration shall automatically be extended for successive periods of ten (10) years each unless and until an instrument has been recorded, by which this Declaration, in whole
or in part, is amended, modified or revoked pursuant to the provisions of hereof. The Declaration may be terminated after the Development Period by a written instrument executed by
the Owners of seventy percent (70%) of the Lots which are then subject to the Covenants and recorded among the Official Records, stating that the Covenants shall expire at the end of
the then current term.
5.2 ENFORCEMENT.
(a) Enforcement of this Declaration shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, either to restrain the
violation or to recover damages, or both. In acquiring title to any Lot in the Community, the purchaser or purchasers violating or attempting to violate any covenant, agree to reimburse
the Record Owners for all costs and expenses for which it or they may incur as a result of the said violation or attempted violation, including but not limited to, court costs and attorneys'
fees.
(b) These Covenants shall inure to the benefit of and be enforceable by the Architectural Review Committee and Record Owner(s) of any land included in the Community and their respective
legal representatives, successors and assigns, and all persons claiming by, through or under them.
5.3 NO WAIVER. The failure or forbearance by any Owner or the Architectural Review Committee to enforce any covenant or restriction herein contained shall in no event be deemed a waiver
of the right to do so thereafter.
5.4 INCORPORATION BY REFERENCE ON RESALE. In the event any Record Owner sells or otherwise transfers any Lot, any deed purporting to affect such transfer shall be deemed to contain
a provision incorporating by reference the covenants, restrictions, servitudes, easements, charges and liens set forth in this Declaration, whether or not the deed actually so states.
5.5 NOTICES. Any notice required to be sent to any member or Record Owner under the provisions of this Declaration shall be deemed to have been properly sent when mailed, by ordinary
mail, postage paid, to the last known address of the person who appears as member or Record Owner.
5.6 SEVERABILITY. Invalidation of any one of these covenants or restrictions by judgment, decree or order shall in no way affect any other provisions hereof, each of which shall remain
in full force and effect.
5.7 CAPTIONS AND GENDERS. The captions contained in this Declaration are for convenience only and are not a part of this Declaration and are not intended in any way to limit or enlarge
the terms and provisions of this Declaration. Whenever the context so requires, the male shall include all genders and the singular shall include the plural.
5.8 AMENDMENT.
(a) Until the expiration of the Development Period, this Declaration may be amended by Declarant unilaterally. In order to accomplish any such amendment, each Owner appoints Declarant
as his/her power of attorney to execute and record in Official Records any such amendment. THIS SPECIAL POWER OF ATTORNEY SHALL BE IRREVOCABLE AND COUPLED WITH AN INTEREST.
(b) After the conclusion of the Development Period, this Declaration may be amended by an instrument in writing, signed and acknowledged by at least ninety percent (90%) of the Owners.
The amendment shall be recorded in the Official Records of the County. Unless a later date is specified in any such instrument, any amendment to this Declaration shall become effective
on the date of recording.
(Signature Pages Follow)
WITNESS the hand and seal of the Declarant hereto on the day herein above first written.
DECLARANT:
ALPINE HEIGHTS, LLC
By: Hamlet Homes Corp.
Its Manager
By:__________________________________
Jon Southern, COO
STATE OF UTAH, COUNTY OF SALT LAKE, TO WIT:
I HEREBY CERTIFY that on this _________ day of _______________________ 2020 before, me, the subscriber, a Notary Public of the State of Utah, personally appeared Jon Southern, known
to me or suitably proven, who acknowledged himself to be the President of Hamlet Homes Corporation, the Manager of Alpine Heights, LLC, the Declarant named in the foregoing Declaration
of Covenants, Conditions and Restrictions, and who, being authorized to do so, in my presence, signed and sealed the same and acknowledged the same to be the act and deed of the Declarant.
AS WITNESS my hand and seal.
_____________________________________________
Notary Public
My Commission Expires: _______________________
Exhibit "A"
DESCRIPTION OF THE PROPERTY SUBJECTED TO THE DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS
LOCATED IN THE SOUTHWEST QUARTER OF SECTION 29 AND THE NORTHWEST QUARTER OF SECTION 32 OF TOWNSHIP 6 NORTH, RANGE 40 EAST OF THE BOISE MERIDIAN, MADISON COUNTY, STATE OF IDAHO MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTH QUARTER CORNER OF SECTION 32 OF T. 6 N., R. 40 E., B.M. POINT ALSO BEING THE POINT OF BEGINNING (FROM WHICH THE CENTER QUARTER CORNER OF SAID SECTION 32 BEARS
S 00°07'10” E 2644.34');
THENCE S 00°07'10" E 390.46' ALONG THE LONGITUDINAL CENTERLINE OF SAID SECTION 32, BEING THE COMMON LINE BETWEEN HARVEST HEIGHTS DIVISION No. 1 FILED UNDER INSTRUMENT No. 304335 TO THE
NORTH RIGHT-OF-WAY LINE OF E 7TH SOUTH BEING A NON-TANGENT CURVE TO THE RIGHT;
THENCE ALONG SAID NORTH RIGHT-OF-WAY LINE AND NON-TANGENT CURVE TO THE RIGHT 183.64' (CURVE DATA: RADIUS= 650.00' DELTA= 16°11'15" CHORD= N 55°05'31” W 183.03');
THENCE ALONG THE NORTH RIGHT-OF-WAY LINE OF E 7TH SOUTH FOR THE FOLLOWING SIX (6) COURSES:
1) N 47°01'43” W 191.97' TO A TANGENT CURVE TO THE LEFT;
2) ALONG SAID TANGENT CURVE TO THE LEFT 0.31' (CURVE DATA: RADIUS= 750.00' DELTA= 00°01'26” CHORD= N 47°02'06” W 0.31') TO A TANGENT CURVE TO THE LEFT;
3) ALONG SAID TANGENT CURVE TO THE LEFT 290.22' (CURVE DATA: RADIUS= 750.00' DELTA= 22°10'17” CHORD= N 58°07'57” W 288.41') TO A TANGENT CURVE TO THE LEFT;
4) ALONG SAID TANGENT CURVE TO THE LEFT 275.43' (CURVE DATA: RADIUS= 750.00' DELTA= 21°02'28” CHORD= N 79°44'20” W 273.88');
5) N 89°59'13” W 97.34' TO THE EAST BOUNDARY LINE OF EAGLEWOOD ADDITION DIVISION No. 1 FILED UNDER INSTRUMENT No. 297889;
THENCE N 00°15'15” W 777.90' ALONG THE EAST BOUNDARY LINE OF SAID EAGLEWOOD ADDITION DIVISION No. 1;
THENCE N 14°51'03" W 179.27' ALONG THE EAST BOUNDARY LINE OF SAID EAGLEWOOD ADDITION DIVISION No. 1;
THENCE N 09°30'40" W 121.54' ALONG THE EAST BOUNDARY LINE OF THE LANDS DESCRIBED IN DEED INSTRUMENT No. 349407 TO THE SOUTH BOUNDARY LINE OF ROLLING HILLS ESTATES DIVISION 2 FILED UNDER
INSTRUMENT No. 186192;
THENCE N 89°44'12" E 963.87' ALONG THE SAID SOUTH BOUNDARY LINE OF ROLLING HILLS ESTATES DIVISION 2 TO THE LONGITUDINAL CENTERLINE OF SECTION 29, LINE ALSO BEING THE WEST BOUNDARY LINE
OF HARVEST HEIGHTS DIVISION No. 1 FILED UNDER INSTRUMENT No. 304335;
THENCE S 00°22'37" E 1121.93' ALONG THE SAID THE LONGITUDINAL CENTERLINE OF SECTION 29 AND THE WEST BOUNDARY LINE OF SAID HARVEST HEIGHTS DIVISION No. 1 TO THE NORTH QUARTER CORNER OF
SECTION 32 BEING THE POINT OF BEGINNING.
SAID PROPERTY CONTAINS 25.427 ACRES MORE OR LESS