Section 7.1. Architectural Approval.
Complete plans and specifications for all “Improvements’’ (defined below) shall be approved in writing in accordance with this Article 7 prior to the commencement of any construction or development activities for such Improvements within the Property. “Improvements” shall mean, collectively, the following items and activities within the Property:
(a) staking, clearing, landscaping, excavation, grading or other site work;
(b) buildings, structures and other improvements of any kind;
(c ) exterior additions, changes or alterations of any nature to the Living Units, buildings or other existing improvements, including, without limitation, changes in color, changes or additions to driveway or walkway surfaces and landscaping modifications.
Section 7.2. Initial Construction.
No construction of the initial Improvements within the Property may be commenced, erected or maintained until complete plans and specifications for such Improvements have been approved, in writing, by the Declarant. To the extent that the Declarant has entered into any written agreement with a Participating Builder or others regarding architectural review, approval or control for the construction of initial Improvements, the provisions of such agreement shall control and supersede any conflicting provisions of the Governing Documents, including this Article 7. The Declarant may, in its sole discretion, disapprove any plans and specifications, in whole or in part, and approval of any plan or specification does not constitute a waiver of the right to disapprove the same or similar plans and specifications subsequently submitted. Notwithstanding any provision of the Governing Documents to the contrary, the approval of the Declarant pursuant to this Section 7.2 shall be the only approval required with respect to the construction of initial Improvements.
Section 7.3. Changes and Modifications to Living Units.
Except for initial Improvements which shall be approved by the Declarant in accordance with Section 7.2 above, no Owner or any other person or entity shall commence, erect or maintain any Improvements within the Property until complete plans and specifications for such Improvements have been approved, in writing, by the appropriate Design Review Entity in accordance with Sections 7.4 through 7.18 below.
Section 7.4. Design Review Entity.
As used in this Declaration, the term “Design Review Entity” means one or more of the following entities having jurisdiction at any particular time with respect to the matters described in this Article 7:
(a) The Declarant, with respect to all architectural review and approval authority under this Article 7 for the Property, except to the extent any such rights and powers are assigned or terminated in accordance with Section 7.5. All rights and powers of the Declarant under this Article 7 may be exercised on behalf of the Declarant by such members, officers, directors, employees, agents, representatives, or other designees of the Declarant as the Declarant may designate from time to time; and
(b) The Design Review Committee, but only upon the assignment of such rights and powers from the Declarant in accordance with Section 7.5. If a Design Review Committee is not appointed, the Board of Directors shall exercise all rights and powers that could be exercised by the Design Review Committee.
Section 7.5. The Declarant as a Design Review Entity.
The Declarant shall be exclusively entitled to exercise all rights and powers of the Design Review Entity under this Declaration for the Property, except to the extent such rights and powers are expressly assigned in writing by the Declarant. The Declarant may assign all or part of its rights and powers under this Article 7 to the Design Review Committee. Notwithstanding the foregoing, upon the termination of the Declarant’s Rights and Obligations Period, all rights and powers reserved to the Declarant under this Article 7 not previously assigned to the Design Review Committee shall automatically terminate and shall be deemed assigned to, and thereafter exercised by, the Design Review Committee. Each Owner of a Living Unit shall be deemed to covenant and agree that (i) neither initial contraction of Improvements nor any exterior addition, change or alteration to existing Improvements shall be commenced within the Owner’s Living Unit until approval for such construction, addition, change or alteration is approved in accordance with this Article 7, and (ii) as the developer and initial owner of the Property, the Declarant has a significant and substantial interest in ensuring that all Improvements are consistent with the Community Plan and that the Improvements do not have an adverse impact upon the Declarant’s ongoing ability to market, sell, and/or lease all or any portion of the Property. Accordingly, in its exercise of the rights and powers of the Design Review Entity under this Declaration, the Declarant shall have the right to approve or disapprove any plans and specifications for Improvements in the Declarant’s sole discretion, and all Owners acknowledge that in reviewing and acting upon any such plans and specifications, the Declarant shall be acting in its own interest and shall owe no duty whatsoever to any other individual or entity, including, without limitation, the Association and the Owners.
Section 7.6. Design Review Committee as a Design Review Entity.
The Design Review Committee shall exercise such rights and powers of the Design Review Entity as may from time to time be assigned to the Design Review Committee pursuant to Section 7.5 above. The Design Review Committee shall consist of an uneven number of at least three (3) but not more than five (5) members who shall serve at the pleasure of and may be removed and replaced at the discretion of the Declarant, during the Declarant’s Rights and Obligations Period, and at the discretion of the Board of Directors thereafter. The members of the Design Review Committee need not be members of the Association and may, but need not, include architects, engineers and similar design professionals. A good faith effort shall be made to employ an architect to serve on the Design Review Committee but an architect member of the Design Review Committee shall not be required. Compensation of the members of the Design Review Committee, if any, shall be established from time to time by the Board of Directors.
Section 7.7. Revocation of Assigned Rights.
Until termination of the Declarant’s Rights and Obligations Period, the Declarant may, in its sole discretion, revoke any prior assignment of all or part of the rights and powers under this Article 7 that the Declarant may have assigned to the Design Review Committee or other designee. Upon such time that the Declarant may revoke any previously assigned rights and powers under this Article 7, the Declarant shall automatically have the authority to exercise such rights and powers.
Section 7.8. Application Review.
(a) No Improvement of any kind shall be commenced, erected or maintained upon the Property until a design review application (“Application”) is submitted to and approved by the Design Review Entity. The Application shall include detailed plans showing the site layout, exterior elevations, exterior materials and colors, landscaping, drainage, lighting, irrigation, and other relevant features of the Improvements, as required by the Design Review Entity and any Design Guidelines applicable to the applicant’s Living Unit. The Design Review Entity may also require the submission of such additional information as it deems necessary to consider any Application. The Design Review Entity may consider, but shall not be restricted to consideration of visual and environmental impact, ecological compatibility, natural platforms and finish grade elevation, harmony of external design with surrounding structures and environment, location in relation to the Golf Course, surrounding structures and plant life, compliance with the general intent of applicable Design Guidelines and architectural merit. In many instances, decisions will be based solely on aesthetic considerations and each applicant acknowledges that determinations as to such matters may be highly subjective and opinions may vary as to the desirability and/or attractiveness of particular Improvements.
(b) The Design Review Entity shall, within thirty (30) calendar days after receipt of a complete Application, advise the applicant in writing of the approval or disapproval of the Application. The Design Review Entity shall provide a reasonable explanation of the objectionable segments or features of any disapproved Application and suggestions for addressing such objections. If the Design Review Entity fails to advise the applicant by written notice within thirty (30) calendar days of receipt of a complete Application of either the approval or disapproval of the Application, the applicant shall give the Design Review Entity written notice of the Design Review Entity’s failure to respond. The applicant’s notice shall include a statement that unless the Design Review Entity responds within fifteen (15) calendar days of receipt of such applicant’s notice, approval of the Application shall be deemed granted. Upon such further failure of the Design Review Entity to grant an approval or disapproval, approval shall be deemed to have been given, subject to the Declarant’s veto rights under Section 7.9. Notwithstanding the foregoing, no approval, whether expressly granted or deemed granted pursuant to this Section 7.8, shall be materially inconsistent with the Design Guidelines, unless a variance has been granted in writing in accordance with Section 7.14 below. Notices from an applicant to the Design Review Entity under this Section 7.8 shall be deemed to have been given at the time the envelope containing such notice, properly addressed and postage prepaid, is delivered by the U.S. Postal Service by registered or certified mail, return receipt requested, or by any other delivery or courier service, such as Federal Express or UPS, which can provide tracking information regarding the delivery of such notice. Personal verified delivery of such written notice by any other means shall also be sufficient and shall be deemed to have been given at the time of delivery.
(c ) (added October 8, 2015) Any other provision of this Declaration to the contrary notwithstanding, and regardless of the architectural or aesthetic merits of any Application submitted pursuant to this Article with respect to any Lot or Living Unit in the Association, no such Application shall be reviewed and/or approved by any Architectural Control Committee responsible for such review so long as there remains any amount or past due balance owed to the Association by the Owner(s) of said Lot or Living Unit for the payment of assessments, late fees, interest, costs, attorneys’ fees, fines or other duly levied charge of any type whatsoever. This provision may be waived in the sole discretion of the Board of Directors for: (1) those Owners) that have previously negotiated a plan with the Association to bring any past due balance current and are complying in all respects with the terms of said plan; or, (2) circumstances in which the Board determines it is in the best interest of the Association or an Owner to allow a modification or alteration on a Lot or Living Unit.
Section 7.9. Declarant’s Veto Rights.
Until termination of the Declarant’s Rights and Obligations Period, the Declarant may, in its sole discretion, veto any decision made pursuant to this Article 7 by the Design Review Committee. The Design Review Committee shall give the Declarant written notice of each Application it approves within three (3) business days after such approval. The Declarant shall have ten (10) calendar days after receipt of such notice to veto the approved Application by written notice to the applicant and/or to the Design Review Committee, as applicable.
Section 7.10. Application Fees and Reimbursements.
The Design Review Entity may (i) establish and charge reasonable fees for review of Applications hereunder; (ii) retain architects, engineers or other design professionals as reasonably necessary to assist in its review of Applications; and (iii) require reimbursement by the applicant of fees charged by any architect, engineers or other design professionals.
Section 7.11. Design Guidelines and Procedures.
(a) The Design Review Entity may, but shall not be required to, establish Design Guidelines to provide guidance to Owners, builders and contractors regarding matters deemed to be of relevance or importance to the Design Review Entity in considering Applications for architectural approval. Such Design Guidelines shall not be the exclusive basis for decisions hereunder and compliance with the Design Guidelines shall not guarantee approval of an Application. Design Guidelines may contain general provisions applicable to all Living Units, as well as specific provisions which vary from one Living Unit to another, depending upon the location, type of construction or use, and unique characteristics of the Living Units.
(b) Any Design Guidelines adopted pursuant to this Article 7 shall be subject to modification and amendment from time to time in the sole discretion of the Design Review Entity. Modifications and amendments to Design Guidelines shall not apply to or require modifications to or removal of Improvements previously approved once such Improvements have commenced. However, modifications and amendments to Design Guidelines may prohibit an exact replacement of a previously approved Improvement. Any subsequent removal or alteration of any previously approved Improvements shall be subject to the Design Guidelines in existence at the time of such subsequent removal or alteration. There shall be no limitation on the scope of modifications or amendments to any Design Guidelines. All modifications and amendments to Design Guidelines shall be published in Association newsletters, electronic bulletin boards, by email, community website or by other means calculated to give reasonable notice to the Owners covered by such Design Guidelines; provided, however, that the failure of any Owner to actually receive any Design Guideline or modification or amendment to any Design Guideline shall not affect the validity or enforceability against such Owner of any such Design Guideline or modification or amendment thereto. The Design Review Entity shall make copies of Design Guidelines available to Owners, builders and contractors and may charge a reasonable fee to cover the costs of providing the Design Guidelines.
(c ) The Design Review Entity may from time to time adopt and promulgate procedures and requirements for the submission of Applications to the Design Review Entity, including, without limitation, requirements regarding the number of copies, the content, scale and detail of the plans and specifications to be included with such Applications, and the identification of any required supporting materials; provided, however, that such application procedures shall not contravene any specific requirement established by this Declaration. Any application procedures adopted pursuant to this Article 7 shall be subject to modification and amendment from time to time in the sole discretion of the Design Review Entity. Such application procedures shall not be construed as a waiver of the provisions of this Article 7 or any other provision or requirement of this Declaration.
(d) Any Design Guidelines or application procedures promulgated by a Design Review Committee shall be subject to the Declarant’s prior approval during the Declarant’s Rights and Obligations Period.
Section 7.12. Completion of Improvements.
Unless another period of time is specified by the Design Review Entity in its approval, (I) construction of any initial Improvements in accordance with an approved Application shall be completed within twenty-four (24) months following approval of the Application, and (ii) changes or modifications to existing Improvements in accordance with an approved Application shall be completed within twelve (12) months following approval of the Application. In the event such work is not completed within the periods aforesaid, then approval of the plans and specifications shall be conclusively deemed withdrawn and the applicant must re-submit an Application and otherwise comply with the requirements of this Article 7. There shall be no deviations from plans and specifications approved by the Design Review Entity without the prior consent in writing of the Design Review Entity.
Section 7.13. Non-Precedential Nature of Approvals.
Each applicant acknowledges that the composition of the Design Review Entity will change from time to time and that decisions regarding aesthetic matters and interpretation and application of the Design Guidelines applicable to the applicant’s Living Unit may vary from time to time. In addition, each applicant acknowledges that it may not always be possible to identify objectionable features of proposed Improvements until the Improvements are completed, in which case it may be unreasonable to require changes to the Improvements previously approved; however, the Design Review Entity may refuse to approve similar Improvements in the future. Approval of Improvements for any particular applicant or Living Unit shall not be deemed a waiver of the right to withhold approval as to any similar Improvements subsequently submitted for approval.
7.14. Waivers and Variances.
The Design Review Entity in its sole discretion may, but shall not be required to, authorize waivers or variances from compliance with any Design Guidelines or for nonconforming Improvements when circumstances such as topography, natural obstructions, aesthetic or environmental considerations, architectural merit, or other reasonable considerations warrant such a waiver or variance. Such waivers and variances shall be granted only if and when the Design Review Entity determines that some or all of the foregoing circumstances warrant a waiver or variance. No applicant shall have any right to demand or obtain a waiver or variance. Except for a waiver or variance authorized by the Declarant, no waiver or variance may (i) be effective unless in writing, (ii) be contrary to this Declaration, or (iii) be inconsistent with the goals or objectives of the Declarant. In no event shall any waiver or variance estop the Design Review Entity from denying a waiver or variance in other circumstances.
Section 7.15. Limited Scope of Approval.
The standards and procedures established by this Article 7 are intended to provide a mechanism for maintaining and enhancing the overall aesthetics of the Community. Approval of an Application by a Design Review Entity shall in no way be construed as to pass judgment on the correctness of the location, structural design, suitability of water flow or drainage, location of utilities, or other qualities of the item being reviewed. No Design Review Entity, nor any of its members, officers, directors, employees, agents, or representatives, shall hear any responsibility for ensuring structural integrity, soundness or compliance with building codes and other governmental approvals or requirements, or that any Improvements are located so as to avoid negative impacts on other Living Units including, without limitation, impaired views. No representation is made by any Design Review Entity with respect to the quality, size, value or design of future Improvements. Approval by any Design Review Entity shall not be construed as a representation or warranty of any type regarding the design or construction of any Improvement and no Design Review Entity, nor any of its members, officers, directors, employees, agents, or representatives, shall be liable for (i) soil conditions, drainage or other site work problems, (ii) defects or errors in any plans or specifications submitted as part of an Application, (iii) any structural or other defects in Improvements constructed according to an approved Application, or (iv) any injury, damages, or loss arising out of the design, quality or manner of construction of any approved Improvements. Approvals by the Design Review Entity shall in no way be deemed to constitute a determination as to compliance with local zoning ordinances, governmental guidelines or restrictions, or be substituted in lieu of applicable governmental approvals and permits and no construction may commence until all such approvals and permits have been obtained.
Section 7.16. Enforcement.
(a) Any Improvements constructed in violation of this Article 7 or in a manner inconsistent with an approved Application shall be deemed to be nonconforming. Upon written request from the Design Review Entity, the defaulting Owner shall, at its own cost and expense, promptly either remove any nonconforming Improvement and restore the Living Unit to substantially the same condition that existed prior to the installation of the nonconforming Improvement or bring the nonconforming Improvement into compliance with the approved Application, as applicable. If an Owner fails to remove any nonconforming Improvement and restore its Living Unit or bring the nonconforming Improvement into compliance with the approved Application, as applicable, the Design Review Entity shall have the right to enforce this Article 7 in accordance with Section 18.2 of this Declaration, assess fines in accordance with the Governing Documents, and remove the violation and restore the Living Unit to substantially the same condition as previously existed. If the Design Review Entity undertakes the foregoing self-help remedy, such action shall not be deemed a trespass. Upon demand by the Design Review Entity, the Owner of the Living Unit shall promptly reimburse all costs incurred in connect ton with enforcement under this Section 7.16 and such costs shall be collectable in the same manner as Assessments and may become a lien upon such Living Unit, provided the requirements of the Maryland Contract Lien Act have been satisfied. The Design Review Entity may preclude any contractor, subcontractor, agent, employee or other invitee of any Owner who fails to comply with the terms and provisions of this Article 7 and the applicable Design Guidelines from continuing any further activities on the Living Unit or any other portion of the Property. Neither the Design Review Entity, nor any of its members, officers, directors, employees, agents, or representatives shall be held liable to any Owner or any other person or entity for exercising the rights granted by this Article 7.
(b) Upon assignment or termination of any or all of the rights of the Declarant under this Article 7, if the Design Review Committee fails to take enforcement action within thirty (30) calendar days after receipt of a written demand from the Declarant identifying the violator and/or specifying the nature of the violation, then the Declarant may undertake any appropriate enforcement action and the Association shall reimburse the Declarant for all costs reasonably incurred by the Declarant in taking such enforcement action with respect to such violation, but only to the extent the Declarant prevails in such action.
Section 7.17. Certificate of Compliance.
Upon satisfactory completion of the Improvements on a Living Unit in accordance with plans and specifications approved by the Design Review Entity in accordance with the provisions of this Article 7, the Design Review Entity shall, at the written request of the Owner of the Living Unit, issue a certificate of compliance, provided such request is made within one (1) year after completion of the Improvements. A certificate of compliance shall be prima facie evidence that the Improvements referenced in such certificate have been approval by the Design Review Entity in full compliance with the provisions of this Article 7 and with such other provisions and requirements of the Governing Documents as may be applicable. The Association may charge the Owner of the applicable Living Unit a reasonable administrative fee for issuing a certificate of compliance.
Section 7.18. Appeal.
Any decisions made by the Design Review Committee may be appealed to the Board of Directors by the Owner whose Application or other request was the subject of the Design Review Committee’s decision. Upon written request, such Owner shall be entitled to a hearing before the Board of Directors. A vote of two thirds (2/3) of all members of the Board of Directors shall be required to reverse or modify a decision of the Design Review Committee. Notwithstanding the foregoing, when acting as the Design Review Entity, the decisions of the Declarant and the Board of Directors shall be final and shall not be subject to appeal.
Section 7.19. Declarant Exemption.
Notwithstanding any provision of this Declaration to the contrary, the provisions of this Article 7 shall not be applicable to any Improvements installed or constructed by the Declarant or to any part of the Property owned by the Declarant.
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