FIRST AMENDED DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS FOR LA TIERRA NUEVA SUBDIVISION
(For reference only. Use actual documents for legal matters.)
THIS FIRST AMENDED DECLARATION (the “Declaration”), made as of the Effective Date (as defined below), by LA TIERRA NUEVA HOMEOWNERS’ ASSOCIATION, a not-for-profit corporation organized under the laws of the State of New Mexico, hereinafter referred to as the “Association,” witnesseth
WHEREAS, the Association and its members are the owners of certain real estate in the County of Santa Fe, New Mexico, described as La Tierra Nueva Subdivision (formerly Tierra Grande Subdivision), as shown by the Plat (as defined below), and
WHEREAS, the original developer of the properties (as defined below) no longer has any interest therein as a developer, and
WHEREAS, in order to reflect the withdrawal of the developer, and to implement certain other changes to the Declaration of Covenants, Conditions and Restrictions for Tierra Grande Subdivision, filed in the records of Santa Fe County on August 30, 1979, at Book 386, Page 283 (the “Old Declaration”), the Association and the Owners (as defined below), desire to impose the provisions of this Declaration on and subject all of the Properties to the following covenants, conditions and restrictions, including easements, for the purpose of protecting the value and standards of the Properties, the terms of which shall run with the land and be binding upon, and inure to the benefit of all parties having any right, title or interest in or to the aforesaid Properties or any part thereof, together with their heirs, successors, and assigns, and
WHEREAS, in order to clarify certain other terms and conditions of the old Declaration as a result of events occurring during the past seventeen (17) years, the Association desires to amend the Declaration as set forth below, it is therefore declared as follows:
ARTICLE 1: DEFINITIONS Section 1.01. “Articles” means the Articles of Incorporation of the Association as the same may
be duly amended, altered, or modified from time to time.
Section 1.02. “Association” means LA TIERRA NUEVA HOMEOWNERS’ ASSOCIATION, a New Mexico nonprofit corporation, its successors and assigns.
Section 1.03. “Board” or “Board of Directors” means the Board of Directors of the Association, as duly elected and constituted from time to time in accordance with the governing corporate documents of the Association.
Section 1.04, “Bylaws” means the Bylaws of the Association, as the same may be duly amended, altered or modified from time to time.
Section 1.05. “Committee” means the Architectural Control Committee, which, subject to the powers of the Board, has authority over the improvement of easements across, construction and
building upon, and all other development of all Lots and Properties within the Subdivision, as constituted and authorized to act by this Declaration.
Section 1.06. “Common Area” means all real property which is part of the Properties now or hereafter owned by the Association for the common use and enjoyment of the Owners, including, without limitation, all streets within the Subdivision, all recreational facilities owned and operated within the Subdivision by the Association that are not located on a Lot, all parcels within the Subdivision that are hereafter designated by the Board or by the Association as Common Area, and all parcels that are hereafter annexed to the Subdivision and designated by the Board as Common Area.
Section 1.07. “Lot” means any plot of land shown upon the Plat of the Properties. Ownership of a Lot shall include membership in the Association and rights appurtenant thereto.
Section 1.08. “Member” means any and every Owner of a Lot and each Member shall have such rights as are provided in the Association’s Articles, Bylaws and this Declaration.
Section 1.09. “Owner” means any contract purchaser or record owner, whether one or more persons or entities, of a fee simple title to any Lot that is part of the Properties but excluding those having such interest merely as security for the performance of an obligation,
Section 1.10. “Plat” means the plat of survey of the Properties filed in the office of the Clerk of Santa Fe County, New Mexico, on the 16th day of August, 1979, as Instrument No. 444,242, and all duly recorded amendments thereto.
Section 1.11. “Properties” means all parcels and Lots governed by this Declaration within the Subdivision, and such additions thereto as may hereafter be brought within the jurisdiction of the Association.
Section 1.12. “Structure” means any permitted improvement for which permission has been obtained under Article VI hereof, which is not prohibited under any other provision of this Declaration.
Section 1.13. “Subdivision” means all of the legal subdivision of record known as the LA TERRA NUEVA SUBDIVISION, as set forth on the Plat, as the same may be amended from time to time, which is governed by this Declaration and includes the Properties, including the Lots and the Common Area.
ARTICLE II: PROPERTY RIGHTS
Section 2.01. Owners’ Easements of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:
(a) The right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the Common Area or any portion thereof.
(b) The right of the Association to suspend voting rights and the right to use the recreational facilities on the Common Area or any portion thereof by an Owner for any period
during which any assessment against his Lot remains delinquent; and for any infraction of this Declaration, or any published rules and regulations of the Association or the Committee.
(c) The right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority, or utility for public purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument causing or improving such dedication or transfer is executed by Members entitled to cast two-thirds (2/3) of the vote of the Members and is recorded in the real property records of the county in which the Subdivision is located at the time of the dedication and unless such dedication or transfer is approved by appropriate governmental authorities. Easements for maintenance of utilities and emergency vehicle access to the Common Area may be granted by the Board of Directors without the need for approval of the Members, and shall be effective upon the recordation of the instrument evidencing the grant of easement in the real property records for Santa Fe County.
(d) If additional properties are annexed to the Subdivision in accordance with provisions hereof, the Owners of additional Lots created shall share in the use and easement of the Common Area; and the use and easement of any additional Common Area created shall be shared by the Owners of all Lots that existed before such annexation.
(e) The right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of improving the Common Area, but the Association shall have no power to mortgage said Common Area in aid thereof.
(f) The right of the Association to adopt and publish reasonable rules and regulations governing the use of the Common Area or any portion thereof.
Section 2.02. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, his right of enjoyment to the Common Area to members of (he his family, his tenants, invitees, licensees, or contract purchasers who reside on the Owner’s Lot.
ARTICLE III: MEMBERSHIP AND VOTING RIGHTS
Section 3.01. Membership and Voting. Upon acquiring title to a Lot, every Owner shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot. When more than one person holds an interest in any Lot, all such persons shall be Members. The vote in Association matters of Members who share ownership of a single Lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot, and all such co-owners shall be counted as one (1) Member for the purposes of establishing a quorum of Members.
ARTICLE IV: ASSESSMENTS AND LIENS
Section 4.01. Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees, and is deemed to have covenanted and agreed to pay to the Association annual assessments or charges, and special assessments for capital improvements, such assessments and charges to be established and collected as herein provided. The annual and special assessments, together with interest, costs and reasonable attorney’s fees, shall be a charge
on the land and a continuing lien upon the Lot against which such assessment is made. Each such assessment, together with interest, costs, and reasonable attorney’s fees, shall be the personal obligation of the person who was the Owner of the relevant Lot at the time when the assessment fell due.
Section 4.02. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents in the Properties and for the improvement and maintenance of the Common Area, and for utilities to the Common Area and to the Lots if contracted for by the Board, such as water, natural gas, television or other, for maintenance of the Common Area, including private streets, utility lines, and a security system, including facilities and operation, and for services such as snow removal from private streets within the Subdivision.
Section 4.03. Assessment The annual assessment for each Lot shall be set prior to the year to which the annual assessment relates by the Board of Directors of the Association.
(a) The annual assessment for any calendar year for any Lot shall not exceed the prior calendar year’s assessment for such Lot plus the greater of (x) ten percent (10%) of the prior year’s assessment on such Lot; and (y) the percentage of the prior year’s assessment equal to the percentage change in the applicable Consumer Price Index as published by the United States Department of Labor selected by the Board, or successor indices as adjusted, set forth on or about the first day of December of the year before the prior year and that set forth on or about the first day of December of the prior year, not to exceed fifteen percent (15%).
(b) The maximum annual assessment may be increased above the limits stated above by a vote of the Members entitled to cast fifty-one percent (51%) of the votes of the Association in person or by proxy at a meeting called for such purpose at which a quorum is present or by the written assent of Members entitled to cast fifty-one percent (51%) of the votes of the Association. Notice of such meeting shall be given at least sixty (60) days prior to the meeting and a reminder notice shall be sent at least thirty (30) days prior to such meeting.
(c) On or before December 31 of any calendar year, the Board will set the annual assessment for the subsequent calendar year in accordance with the provisions of this Section. If the Board fails to set an annual assessment for any year, the assessment for the prior calendar year shall apply until changed by the Board.
Section 4.04. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy a special assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair, or replacement of a capital improvement upon the Common Area, including fixtures and personal property relating thereto, provided that any such assessment must first be approved by a vote of the Members entitled to cast fifty-one percent (51%) of the votes of the Association in person or by proxy at a meeting called for such purpose at which a quorum is present or by written assent of Members entitled to cast fifty-one percent (51%) of the votes of the Association. Notwith- standing the foregoing, the Board may make any necessary expenditures to alleviate any health or safety problem, and may later charge the costs thereof as an assessment to applicable and appropriate Lots on a proportional basis.
Section 4.05. Notice and Quorum for any Action Authorized Under Sections 4.03 and 4.04.
Any action of the Members authorized under Section 4.03 or 4.04 of this Article shall be taken at a meeting of Members called for that purpose, written notice of which shall be sent to all Members not less than thirty (30) nor more than sixty (60) days in advance of the meeting. If the proposed action is favored by a majority of the votes cast at such meeting, but such vote is less than the requisite percentage of votes of Members required by the foregoing sections. Members who were not present at the meeting of Members in person or by proxy may give their assent in writing, provided such written assent is obtained by the appropriate officers of the Association not later than thirty (30) days after such meeting.
Section 4.06. Uniform Rate of Assessment. Both annual and special assessments, except insurance per Article IV, Section 4.02, must be fixed as a uniform rate for all Lots.
Section 4.07. Due Dates. Written notice of each annual and special assessment shall be sent to every Owner whose Lot is subject thereto at the address provided to the Board and it shall be the responsibility of every Owner to notify the Board of any change of Ownership or address of any Owner. The due dates for each assessment shall be established by the Board and set forth in the relevant notice relating to same. The Board, in its discretion, may allow for payment of assessments in installments and shall designate the nature and timing of permitted installment payments in the relevant notice of assessment sent to the Owners. The Association shall, upon written authorization from the Owner, and for a reasonable charge, furnish a statement signed by an officer of the Association setting forth whether assessments on a specified Lot have been paid.
Section 4.08. Effect of Nonpayment of Assessments; Remedies of the Association. If any assessment against a Lot or permitted installment payment thereof is not paid within thirty (30) days of the due date, then the entire assessment will become immediately delinquent and due. Upon such delinquency, the unpaid assessment, all related interest, costs and fees shall become a continuing lien on the Lot which shall run with the land and bind then Owner, his successors, heirs, devisees, personal representatives and assigns. The personal obligation of then Owner to pay such assessment, interest, costs and fees, however, shall remain despite any transfer of the Lot. All delinquent amounts shall bear interest at the rate of ten percent (10%) per annum from the delinquency date until paid. Upon the occurrence of the Delinquency Date, the Lot Owner shall be liable to the Association for an additional service fee of fifty dollars ($50). From and after the Delinquency Date, the Association may bring an action at law or in equity against the Owner personally obligated to pay the assessment, interest, costs, and fees, and/or may commence an action to foreclose the lien against the relevant Lot, and there shall be added to the amount of the assessment and related interest, costs and fees, the cost of preparing and filing the complaint in such action, prosecuting such action, and in the event a judgment is obtained by the Association, such judgment shall include the assessment, interest, costs, including the costs of commencing and prosecuting the action, and fees, including reasonable attorney’s fees. No Owner may waive or otherwise escape liability for the assessments provided for herein by non- use of the Common Area or abandonment of the Lot .
ARTICLE V: ARCHITECTURAL CONTROL COMMITTEE
Section 5.01. Committee. Each year, the Board shall appoint an Architectural Control Committee (the “Committee”), which Committee shall be comprised of not less than four (4), persons, who shall be Association Members. The Board shall have the authority to remove any member of the Committee with or without cause. A majority of the Committee, but not less than four (4) persons, shall constitute a quorum at all Committee meetings, and the vote of a majority of those Committee members present at a meeting at which there is a quorum shall be required in order to approve any act of the Committee.
Section 5.02. Duties; Approval of Plans.
(a) The Committee shall exercise its best judgment to see that all improvements, construction, easements, landscaping and other movements of land, and alteration, including burial of gas or other utility or service lines, on lands within the Properties conform to this Declaration.
(b) The Committee shall approve or disapprove all plans and requests submitted to it within thirty (30) days after submission to the Committee, except for multiple substantial requests relating to the same Lot made within two weeks of any prior submission, in which case, the thirty (30) day period shall commence after the submission of the latest request
Section 5.03. Rules of the Committee. Subject to the approval of the Board, from time to time, the Committee may adopt reasonable rules and regulations governing the requests and submissions to be made to the Committee under this Declaration, and the standards to be met by any person seeking Committee approval. Such rules and regulations shall be applied to each Owner and Lot equally and consistently, and shall be consistent with, in addition to, and not in lieu of the provisions of this Declaration; and the provisions of this Declaration shall supersede any inconsistent provisions of any rule or regulation adopted by the Committee. The Committee shall provide copies of all current rules and regulations to any Owner or Member of the Association who requests the same in writing.
Section 5.04. Written Records. The Committee shall maintain written records of all applications submitted to it and of all action taken by the Committee, such records to be made available to any Member not in default within ten days after written request therefor.
ARTICLE VI: STRUCTURES AND IMPROVEMENTS Section 6.01. Committee approval required. Committee approval shall be required prior to
any construction of any kind or nature on any of the Properties, including, but not limited to:
(a) Installation, construction or fabrication of any improvements on any Properties, including, without limitation, the placement on any Properties of pens, stockades, corrals, satellite dishes, fences, walls, or structures, and the construction or installation of addition or alteration to the exterior of existing buildings, structures or improvements.
NOTE 6.01(a) has been deleted with the language of the Third Amendment
(b) The movement of earth on any Properties that relates in any way to subsections (a) or (b), including the movement of earth to install underground utilities or services, the adjustment of the height of the ground level, the installation of a driveway, and the provision of drainage.
Section 6.02. Single-Family Dwelling. No structure shall be erected, altered, placed or permitted to remain on any lot or building site subject to this Declaration other than (a) one detached single-family dwelling for private use; (b) a private garage; (c) recreational facilities such as a pool or a tennis court; (d) solar heating devices; (e) no more than two of any of the following: (i) a non-rental studio and workshop not to exceed two thousand five hundred (2.500) square feet of interior space, (ii) non-rental servant’s quarters not to exceed two thousand five hundred (2.500) square feet of interior heated space, (iii) non-rental guest house not to exceed two thousand five hundred (2,500) square feet of interior heated space; (iv) a barn or stables; and (f) evaporative cooler or coolers not within the view of any other Lot Subject to obtaining the approval of relevant state, local, or other public authorities, a swimming pool may be constructed on each Lot Plans and specification for each of the foregoing permitted structures and improvements shall be submitted to the Committee for approval in accordance with this Declaration before commencement of construction thereof,
Section 6.03. Prohibited Structures. No modular homes, prefabricated structures, storage sheds, or mobile homes may be placed or kept at any building site without the prior written approval of the Committee. No temporary house, dwelling, garage, outbuilding, trailer or other structure shall be placed or erected upon any Lot subject to this Declaration without prior written approval of the Committee.
Section 6.04. Height Restriction. No improvement on any Lot may exceed fifteen (15) feet in height, measured from the point of the highest natural and undisturbed ground level at the improvement’s perimeter. This standard shall apply separately and independently to each improvement, including each detached structure on any Lot.
Section 6.05. Conformity with Existing Topography. Any structure located on a Lot should blend, in the reasonable opinion of the Committee, unobtrusively and naturally with the existing topography of the Lot on which the structure is to be situated, and of all adjacent Properties.
Section 6.06. Exterior Colors and Materials; Style. The colors of the exterior (including the roof and roof gutters and canales) of any improvement on any Lot (either due to the use of materials having such colors or the application of a paint or color coat) shall be earth tones acceptable to the Committee which blend with the surrounding area, shall be non-reflective, and shall not be white, except that window frames and recessed doors may be white, if approved by the Committee. Nothing on the exterior of any improvement on any Lot shall be such as, in the opinion of the Committee, to unduly impair the view of or cause significant glare for, the persons residing at any nearby Lot. All structures or other improvements thereto (to the extent applicable) shall be of a traditional southwestern (pueblo or territorial) or of a contemporary southwestern style.
Section 6.07. Variance Procedure. Any Owner or the agent of any Owner seeking a variance from any provision of this Declaration or from any rule or regulation of the Committee, shall submit a written request for variance (the “Request”) to the Committee at the time of submission of plans to the Committee relating to the underlying improvement for which the variance is requested. The Request for variance shall contain a legal description of the relevant Lot, and a detailed description of the nature of the variance sought and the reason why it should be granted. On or before the date the Request is submitted to the Committee, the Owner making the Request shall provide a copy of the Request to each Owner of each Lot that is adjacent to and/or within
view of the Lot of the Owner making the Request. Any Owner may submit written information to the Committee or, as permitted by the Committee, may appear before the Committee, in support or opposition to any Request, and, in considering any Request, the Committee shall take into account all submissions and presentations made to the Committee in connection with the Request. As part of approving or disapproving related plans, the Committee shall provide written notice of its approval and a list of each Owner who made a submission or presentation to the Committee relating to such Request (an “Interested Owner”) to the Board and to each Interested Owner. The Board will ratify or disapprove the Committee action within thirty (30) days after its receipt of the notice of Committee action- The Committee shall provide all information submitted to the Committee in connection with the request to the Board. If a variance is approved, the Owner making the Request shall submit a written variance form setting forth the legal description of the relevant Lot and the nature of the variance for signature. The variance shall thereafter be recorded in the real property records for Santa Fe County.
Section 6.08. Appeals of Committee Decisions. Any Owner may appeal any decision of the Committee by submitting a written notice of appeal to the Board within fifteen (15) days after the Committee action being appealed. Upon receipt of the appeal notice, the Board shall proceed to schedule a meeting and shall determine the appeal by a majority vote of the Board, which decision shall be binding on all parties. The written decision relating to the appeal shall be maintained in the records of the Association.
ARTICLE VII: ARCHITECTURAL REVIEW Section 7.01. Submissions to the Committee.
(a) With respect to submission of plans and specifications to the Committee, Lot Owners are encouraged to submit preliminary plans and specifications to the Committee for consultation and study prior to the submission of final plans and specifications in order to facilitate approval and to avoid misunderstandings and duplication.
(b) Two complete sets of final building plans and specifications for any building, fence, coping, wall structure or other improvement to be erected or installed on any Lot or building site shall be submitted to the Committee for written approval. The following shall be included in such plans:
(1) Plat plans showing location of all improvements on the Lot.
(2) Exterior elevation drawings of all sides of all improvements.
(3) Detailed floor plan of each structure, including garage, guest house, barn, stable or any other detached structure.
(4) Exterior color scheme, exterior lighting plan, and exterior materials plan.
(5) Description of roofing and roof and other materials treatment (6) Location and plans for driveway.
(7) Copy of applications for all governmental approval or permits relating to the improvements (e.g. copy of the New Mexico State Environment Department application for wastewater disposal system).
(8) Such other and further information as may be requested from time to time by the Committee by rule, regulation, or otherwise in writing.
(c) Any changes, remodeling, reconstruction, alterations or additions to any building structure or other improvements on a Lot, including fencing and walls, shall also be subject to the prior approval in writing by the Committee, and plans therefor shall be submitted to the Committee at least thirty (30) days before the commencement of construction or installation is scheduled.
(d) The location of buildings or improvements shall be staked on the Lot on or before the date plans for such building or improvement are submitted to the Committee for approval.
(e) Approval of plans and specifications shall be evidenced by the written endorsement of the Committee made on said plans and specifications, and a copy of the endorsed plans and specifications shall be delivered by the Committee to the Owner of the Lot or building site, or to his agent or representative, prior to the commencement of construction. One set of plans and specifications shall be retained by the Committee.
Section 7.02. Disapproval of Plans. The Committee shall have right to disapprove any plans and specifications submitted to it for any one or more of the following reasons:
(a) the plans and specifications are not in sufficient detail or are incomplete;
(b) in the reasonable opinion of the Committee, the architectural design of the proposed building, structure or improvement as shown by said plans, including exterior color scheme or materials, or the location of any structure on the Lot is not in harmony with the general surroundings, or with the building or structures, or proposed building or structures, adjacent to the location at which said proposed building or structure is intended to be erected;
(c) the roof on any improvement is of either a material or style different from that specified by this Declaration or the Committee rules and regulations;
(d) the location and arrangement of any sewage disposal system would endanger or interfere with any public, private or utility facilities or improvements, or otherwise would fail to comply with applicable governmental standards, laws, rules or regulations, including relevant New Mexico Environment Department regulations. The decision of the Committee in such cases shall be final;
(e) if the proposed building, structure or other improvement as shown by said plans and specification, does not conform to this Declaration or to the rules and regulations of the Committee;
(f) if the proposed building, structure or other improvement is not in compliance with the Santa Fe County Land Development Code or other applicable governmental rules or regulations. In the event any Code or other rule or regulation is more restrictive than the provisions of this
Declaration, then the more restrictive provisions shall apply.
Section 7.03. Timing of Approval and Construction; Occupation of Structures. The Committee shall approve or disapprove plans and specifications within thirty (30) days after receipt thereof Dwelling house construction shall commence not later than one (1) year after approval of plans and specifications. The exterior construction of any structure or improvement on any Lot, including the final color coat or paint, shall be fully completed within one (1) year after commencement of construction. No residence placed or erected on any Lot or building site shall be occupied in any manner while in the course of construction, or at any time prior to the time when the exterior is fully finished as herein required, and is fully functional for residential purposes. Nor shall any residence be occupied until made to comply with the approved plans, and all other conditions and restrictions herein set forth. Upon completion of improvements for which plans and specifications have been approved, the Owner shall notify the Architectural Committee in writing that the work is complete. The Architectural Committee will, within fifteen (15) days of receipt of the Completion Notice, inspect the complete work and take one of the following actions:
(a) Send the Owner a written Notice of Approval of Work, if the work is in conformity and compliance with the approved plans and specifications.
(b) Send the Owner a written Notice of Disapproval of Work, if the work is not in conformity and compliance with the approved plans and specifications, stating the particular grounds for such disapproval; and the Owner shall be obligated to take such action as may be necessary to effect compliance and conformity, without delay.
(c) At the completion of any necessary corrections, the Architectural Committee will then reinspect the work within thirty (30) days to approve or disapprove the correction.
Section 7.04. Committee’s Right to Payment of Expenses. An Owner shall pay the reasonable expenses set by the Committee to the Committee for the examination, and approval or disapproval of plans and specifications submitted for structures or improvements to be erected or installed or changes or alterations to existing structures or improvements. The Committee may at its option, waive its right to such expenses in any particular instance.
Section 7.05. Non-liability of Board and Committee. Neither the Board nor the Committee shall be responsible for defects in any plans or specifications, or in any building, structure or improvement built in conformity to any plans and specifications, whether or not such plans and specifications are approved by the Committee, and whether or not such defect arises in connection with any change or alteration recommended by the Committee. The Committee shall not be liable in damages or otherwise to anyone submitting plans for approval, or to any Owner or Owners of real property covered by this instrument by reason of mistake in judgment or negligence of itself, its agents or employees, arising out of or in connection with the approval or disapproval, or failure to approve any such plans. Any person or entity submitting plans to the Committee for approval shall for himself, and his successors and assigns, by the submitting of such plans, waive all such claims for damages or other relief resulting from any acts or omissions of the Committee, its agents, employees and representatives.
Section 7.06. No Resubdivison. No resubdivision of any Lot in the Subdivision shall be
permitted during the period in which the covenants and restrictions stated in this Declaration are in effect. An adjustment to a Lot line shall not be deemed a resubdivision for purposes of this Section.
Section 7.07. Noncompliance. If any Owner or any agent, employee or representative of any Owner causes or suffers the existence on such Owner’s Lot of any building, structure or improvement that does not comply with the terms and provisions of the Declaration, then upon such noncompliance, the Owner and the Owner’s Lot shall be deemed in default under this Declaration.
ARTICLE VIII: COMMON SCHEME RESTRICTIONS
Section 8.01. Trees and Landscaping. Native growth on a Lot, including but not limited to cacti, piñon and juniper trees, shall not be destroyed or removed, except such native growth as it may be necessary to remove for any Committee approved installation or construction.
(NOTE: Section 8.02 entitled Driveways has been revoked in its entirety and replaced with new Section 8.02 as a result of the 2nd Amendment approved by a majority of Members on 12/20/08 and set forth below at the end of this document – Filed January 8, 2009, Document 1548683)
Section 8.03. Utilities.
(a) All electrical service and telephone lines shall be placed underground and installed in or adjacent to the driveway.
(b) An easement over and upon the fifteen (15) foot perimeter of each Lot is hereby reserved to the Association for the purposes of installing, maintaining, repairing and replacing any equipment or facility that serves utilities, including, without limitation, water, sewers, gas, electricity, telephone, and cable television.
(c) Additional utility easements as shown and stated on the recorded Plat of the Subdivision are imposed on the Lots and Common Area of the Subdivision.”
Section 8.04. Set-backs from Property Line. Any building, structure or improvement shall be constructed or installed on a Lot so that the same is at least one hundred (100) feet from the nearest boundary of the Lot.
NOTE the language in Section 8.04 is deleted in its entirety and the language of the Third Amendment substituted in its place
st (NOTE: Section 8.04 is deleted in its entirety and replaced with the 1 Amendment dated
12/28/03 and set forth below at the end of this document – Filed August 8, 2001, Document 486593, Book 1955, Pages 34 and 35)
Section 8.05. Private Roads; Speed Limit. All roads in the Subdivision are private and are part of the Common Area. No mini-bikes, motorcycles, off-road vehicles or unlicensed vehicles of any kind shall be driven or permitted on any Subdivision road. No person who is not licensed to operate motor vehicles by the State of New Mexico, or other state, shall be permitted to operate any motor-driven vehicle on the roads of the Subdivision. No motor-driven vehicle shall be driven or permitted in the Subdivision other than on the road system within the Subdivision, except for construction equipment The speed limit on all Subdivision roads shall be set and
posted by the Board from time to time, and it shall constitute a violation of this Declaration to drive a vehicle in excess of the posted speed or to otherwise operate a vehicle in an unsafe or unlawful manner. Owners of Lots shall be responsible for enforcing the speed limit with respect to any contractor or invitee of the Lot Owner. The Board shall have the power to levy a fine on any party violating the provisions of this Section.
Section 8.06. Trash; Disrepair.
(a) No Lot shall be used in any manner for the storage or dumping of rubbish or debris of any kind, or for the storage of any property or thing that will cause such Lot to appear in an unclean or untidy condition, or that will be visually offensive or obnoxious, and no substance, thing or material may be kept upon any Lot that will emit foul or obnoxious odors, or that will cause any noise that will disturb the peace, quiet, comfort or serenity of any occupants or Owners of Lots in the Subdivision.
(b) Before, during, and after any construction, the storage of construction material, supplies and equipment shall be placed out of view of other Lot Owners in the Subdivision.
(c) All clothes lines, clothes drying facilities, mechanical and other equipment, including satellite dishes, solar devices, evaporative coolers, wood piles, storage piles, campers, horse trailers, boats, boat trailers, trailer homes, motor coaches, and similar vehicles, shall be walled in and/or concealed at all times so that they may not be seen by any other Lot within the subdivision from any point beyond the building site on which they are located.
(d) No building, object or structure on any Lot shall be permitted to fall into disrepair, and each such building, object or structure shall at all times be kept and maintained by the Owner of the Lot on which the same is situated in good condition and repair and adequately painted or otherwise finished. If any building, object or structure on any Lot is damaged or destroyed, then, subject to Committee approval, such building, object or structure shall be promptly repaired or rebuilt or shall be demolished, and the portion of the Lot on which such building, object or structure was located shall be cleared, restored, and reseeded (if applicable) to presentable and safe condition.
Section 8.07. Garages.
(a) An enclosed garage of sufficient size to accommodate at least two (2) automobiles shall be constructed with each house.
(b) The garage shall be used primarily for vehicles and not storage. Any storage areas shall be constructed in addition to garages.
(c) Extra automobiles shall be blocked from view by means of a coyote fence, wall or similar treatment.
Section 8.08. Storage Tanks. No elevated tanks of any kind shall be erected, placed or permitted. Any tanks for use in connection with any residence, including tanks for the storage of liquefied petroleum gas and fuel oil, gasoline or oil, must be buried or concealed by walls or fences so as to conceal them from view of other Lots, roads and streets.
Section 8.09. Towers. No derrick or other structure designed for use in boring for oil or natural gas, no flagpole, and no radio or television transmission towers shall be erected, placed or permitted; and the production or extraction of oil, natural gas, petroleum, asphaltum or hydrocarbon product or substances shall not be permitted. This paragraph shall not prohibit home-type television antennas nor shall it prohibit water well drilling equipment when drilling is in process. No wind-driven machinery for the generation of power or other use or purpose shall be placed on any Lot without prior written approval of the Committee.
Section 8.10. Animals.
(a) No animals or poultry of any kind may be kept on any Lot for any commercial use or purpose. Each Lot may have a maximum of three dogs and/or cats more than sixteen (16) weeks old. Except as stated in Section 8.10(2) below, no more than four horses may be kept or maintained on any Lot. No animals or poultry may be kept or maintained on any Lot in any manner or number which is a nuisance or offensive to the neighboring Lots, whether by reason of noise, odors, or otherwise, anything to the contrary hereinabove notwithstanding. The Board and the Committee reserve the right to order the removal of any animals or poultry which may be objectionable to residents of other Lots in the Subdivision. If stud horses arc stabled on a Lot, special pens and stables will be required so as to adequately protect adjoining and other Lot Owners and their animals. Except for stables, paddocks, fencing and enclosures as approved by the Committee, no other enclosures for animals shall be permitted,
(b) A maximum of six (6) horses may be maintained on Lots 47, 49, 50, 51, 52, 60, 64, 66, 68, 69, 70, 71, 72, 73 and 74.
Section 8.11. Home occupations; commercial activity. No business or commercial activity of any nature shall be conducted upon or from any Lot, except for the following:
(a) The incidental use of telephone, telecommunication and facsimile lines and the United States Mail and document delivery services in conjunction with a commercial enterprise primarily located elsewhere; or
(b) The carrying on of an office-type commercial enterprise within the single-family structures (as defined in Section 6.02) provided that it is limited in the scope and use of the structures and remains unobtrusive and inoffensive to Owners of adjacent Lots, and provided that prior approval for such use is obtained from the Committee.
Section 8.12. Billboards and signs. Bach Lot shall display the Lot number sign issued by the Association at the driveway entrance or other clearly visible spot on the Lot. No billboards or advertising signs will be permitted on any Lot or on any building except for the name plate of the occupant of any residence, upon which a professional title may also be added, but no such sign or name plate shall exceed one square foot in size. All such signs must be of uniform shape as designated by the Committee, provided, however, one signboard not more than six square feet in area may be erected on each building site during the construction of a new single-family residence and after its completion pending the sale thereof. No signs shall be allowed with respect to resale of any improved or unimproved Lot
Section 8.13. Exterior Lights. All exterior lights must be located so as not to be directed
toward surrounding Lots, properties or roads. Bright, glaring lights on rooftops and patio walls or elsewhere are prohibited.
Section 8.14. Water Conservation. All Members are urged to practice indoor and outdoor water conservation measures at all times. Efforts should be made to limit green areas, gardens and lawns, as well as limited outdoor pool areas. When planting is anticipated, the use of drought resistant plantings should be considered. Lawns will be restricted to a maximum of two thousand (2,000) square feet.
Section 8.15. Drainage. Surface drainage courses within Lots are to remain in their natural state, except for diversion approved by the Committee. The County reserves the night to alter or maintain drainage systems so as to protect roadways.
Section 8.16. Conservation of Energy. As different types of energy conservation systems become effective, their use will be encouraged with respect to all structures. New solar systems, wind systems and other energy generating systems should be considered as they become feasible and efficient.
Section 8.17. Security System. A security system including a security gate at the entrance of La Tierra Nueva was installed by the developer of the Subdivision. The Association has adopted, and, from time to time will amend and adopt, rules and regulations for the security system and all Lot Owners shall be bound thereby.
Section 8.18. Hunting and Firearms. No hunting whatsoever is allowed within the Subdivision. No discharge of firearms is allowed except in self-defense.
Section 8.19. No Short-Term Rentals. An Owner may rent to any third party, for residential use only, his or her principal residence within the Subdivision; provided there shall be no rental of a guest house, workshop, or studio separate from the principal residence. However, with respect to rentals of less than three (3) months, the Board shall have the right to reasonably approve any such rentals. The Board shall notify the Owner in writing of any violations of this Declaration of which it is aware which would cause the disapproval of the rental. All tenants shall be responsible for compliance with this Declaration; however, the Owner shall be liable as and to the extent any tenant of such Owner violates this Declaration.
Section 8.20. Noise; Nuisance. Excessive or unreasonable noise from any Lot or roadway within the Subdivision is prohibited. No Lot Owner shall permit or suffer to exist any condition on the Owner’s Lot that constitutes an unreasonable nuisance as to any other Owner or occupant of a Lot. The Board has the authority and discretion to determine whether a particular condition constitutes a nuisance within the Subdivision.
ARTICLE IX; GENERAL PROVISIONS
Section 9.01. Enforcement. The Association, or any Owner, shall have the right to enforce by any proceeding at law or in equity, any and all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure of the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. In the event the Association or an Owner prevails in any action for enforcement of any rights or obligations created hereunder, the
Association or Owner shall be entitled to recover all its reasonable costs and expenses, including attorney’s fees.
Section 9.02. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect.
Section 9.03. Effect of Covenants; Amendment. The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be automatically extended for a period of twenty (20) years; provided that the owners of fifty-one percent (51%) of the Lots within the Subdivision may, by executing and acknowledging an appropriate instrument not more than one year and not less than ninety (90) days prior to the initial twenty (20) year period or prior to the expiration of any extension period thereafter, release the land within the Subdivision from any or all of the restrictive covenants contained in this Declaration, or change, amend, modify or revise any of said restrictive covenants, except as hereafter prohibited. Provided, however, that the power to amend this Declaration shall not authorize any amendment: (a) permitting the sale, conveyance, lease, transfer, mortgage, pledge, granting of any deed of trust or hypothecation of the Common Area; (b) authorizing the alteration of the requirement that the Association may be dissolved only with the assent given in writing and signed by Members having the authority to cast eighty percent (80%) of the votes of the Association; or (c) altering the right of each Lot Owner to membership in the Association with rights appurtenant thereto.
Section 9.04. Annexation. Additional residential property and Common Area may be annexed to the Properties with the consent of the Members entitled to cast two-thirds (2/3) of the votes of the Association.
Section 9.05. Easements Generally. There is hereby created a blanket easement for the benefit of the Association and its Members upon, across, over and under all of the Common Area for ingress, egress, installation, replacing, repairing and maintaining all utilities, including but not limited to water, sewers, gas, telephones, cable television and electricity. No Owner may use such easement, or install, construct, repair or replace any facility or equipment on such casement without prior approval of the Committee. Any damage caused by or resulting from the use of such easement shall be repaired by the party causing such damage, so that the affected area is restored to its original condition. By virtue of this easement, and with prior Committee approval, it shall be expressly permissible for the company providing service to erect and maintain the necessary equipment on the Common Area and to affix and maintain electrical and/or telephone wires, circuits and conduits, on and under the Common Area. An easement is further granted to all police, fire protection, ambulance and all similar persons to enter upon the streets and Common Areas in the performance of their duties. Further, an easement is hereby granted to the Association to enter into or across or over the Common Area to perform the duties of maintenance and repair of the Common Area. Notwithstanding anything to the contrary contained in this paragraph, no sewers, electrical lines, waterlines, or other utilities may be installed or relocated on said Common Area except as approved by the Committee. Should any utility furnishing a service covered by the general easement herein provided request a specific easement, the Committee, with the approval of the Board, may grant the same by a separate recordable instrument The Committee, with the approval of the Board, shall have the right to
grant such easements on said Common Area without conflicting with the terms hereof or consent of the Owners being required. The easements provided for in this paragraph shall no way affect or restrict any other recorded casement on said Common Area.
Section 9.06. Non-liability. The Board, the Committee and their members, agents and employees shall not be responsible or liable in damages or otherwise to anyone, including any Owner, by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with this Declaration. Any Owner, for such Owner and the successors and assigns of such Owner, waives all claims for damages resulting from any acts and omissions of the Board, the Committee and the members, agents and employees of each.
FIRST AND SECOND AMENDMENTS
FIRST AMENDMENT TO FIRST AMENDED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR LA TIERRA NUEVA SUBDIVISION
The First Amended Declaration of Covenants, Conditions and Restrictions For La Tierra Nueva Subdivision (“Declaration”), recorded on August 10, 1998 in Book 1526 pages 366-384, Records of Santa Fe County, New Mexico, are hereby amended as set forth below;
1. Paragraph 8.04 is deleted in its entirety and replaced as follows:
Section 8.04. Set-backs from Property Line.
a. Limitation on Placement of Improvements. Any building, structure or improvement shall be constructed or installed on a Lot so that the same is (i) at least one hundred (100) feet from the nearest boundary of the Lot, provided, (ii) that no building shall be constructed or installed closer than one hundred (100) feet from the nearest defining line or edge, as shown on the Plat, of any interior roadway adjacent to the Lot, which roadway constitutes a Common Area as defined in Section 1.06.
b. Grandfathering of Existing Improvements. The provisions of Section 8.04 a(ii),above, shall not apply to any building constructed, or as to any Lot wherein plans for the construction of a building have been approved by the Architectural Control Committee, as of the date of adoption of this amendment to Section 8.04. All such buildings and/or Lots shall be deemed “Grandfathered” as respects their not being required to comply with Section 8.04a(ii).
c. Entitlement to Variance. Upon an Owner’s reasonable claim of undue hardship or the inability to reasonably or economically improve a given Lot by reason of the requirements of Section 8.04a(ii), supported by the written confirmation of the architect employed to design the improvements or the County of Santa Fe, as applicable, the Architectural Control Committee will grant a variance in accordance with the provisions of Section 6.07, supra, provided such variance shall not permit the placement of any structure less than one hundred (100) feet from any Lot line on the subject Lot. In granting such variance, the Architectural Control Committee may impose any reasonable conditions it deems necessary or desirable to ensure that the proposed improvement otherwise complies with this Declaration, including, but not limited to, requiring the construction of berms, the placement of mature landscaping, and the realignment of outdoor lighting.
IN WITNESS WHEREOF, the undersigned has executed and delivered this First Amendment to First Amended Declaration of Covenants Conditions and Restrictions for La Tierra Nueva Subdivision, approved by the Members as effective August 4, 2001.
SECOND AMENDMENT TO FIRST AMENDED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR LA TIERRA NUEVA SUBDIVISION
The First Amended Declaration of Covenants, Conditions and Restrictions For La Tierra Nueva Subdivision (“Declaration”), recorded on August 10, 1998 in Book 1526 pages 366-384, Records of Santa Fe County, New Mexico, as previously amended by First Amendment to First Amended Declaration of Covenants Conditions and Restrictions for La Tierra Nueva Subdivision, recorded on August 8, 2001 in Book 1955 pages 34 – 35, are hereby amended again as set forth below:
“Section 8.02. Driveways.
Section 8.02.01. Single Driveway; Minimizing Impact on Terrain and Other Lots
(a) Only one driveway entrance is permitted for each Lot. All driveway turnarounds, parking areas, islands and driveway spurs to guesthouses, stables, pools, tennis courts and other areas of the Lot shall be located on the interior of each Lot so as to minimize visual impact on other Lots and to minimize visual impact on important features of the Lot and on views from other Lots.
(b) Once a driveway enters a Lot from the private road system, it shall not go back out of the Lot in a different place to that road or to any other road in the private road system.
(c) A driveway is an “improvement” for purposes of application of the 100 foot setback requirements of Section 8.04, as amended, and Section 6.07 relating to the Variance Procedure.
(d) The location of any portion of a driveway or the entrance thereto within the 100 foot setback from a neighboring Lot will not be permitted.
(e) To the extent possible, driveways and driveway entrances should minimize disruption to existing significant plants and trees, as well as arroyos or drainage ways.
(f) Grandfathering of Existing Improvements. The provisions of Section 8.02.01 (d), above, shall not apply when a rough or finished driveway exists on a Lot as of the date of adoption of this amendment to Section 8.02, which driveway shall be deemed “Grandfathered.” A Grandfathered driveway will not be required to comply with Section 8.04 (a), as amended, that is the 100 foot setback, and so long as such is the sole driveway as provided in Section 8.02.01 (a) above.
(g) Entitlement to Variance. Upon an Owner’s reasonable claim of undue hardship or the inability to reasonably or economically improve a given Lot by reason of the driveway requirements of Section 8.02, supported by the written confirmation of the architect employed to design the improvements or the County of Santa Fe, as applicable, the Architectural Control Committee may grant a variance in accordance with the provisions of Section 6.07, supra. In granting such variance, the Architectural Control Committee may impose any reasonable
conditions it deems necessary or desirable to ensure that the proposed driveway improvement otherwise complies with this Declaration, including, but not limited to, requiring the construction of berms, the placement of mature landscaping, and the realignment of outdoor lighting.
Section 8.02.02 Additional Requirements
(a) Two sets of plans and specifications shall be submitted to the Committee for any proposed private road, driveway or access road on any Lot, and the plans and specifications shall show the location, course and width of said private road or driveway
(b) All driveways and private roads shall be surfaced by Lot Owners with base course or other surface treatments so as to prevent dust, and shall be maintained so as to reduce erosion and eliminate unsightly conditions.
(c) All driveways should be graded and sloped for proper drainage.
(d) All driveways should have culverts large enough for proper drainage. A minimum 18” diameter culvert shall be installed where the driveway crosses the roadside ditch adjacent to the private access road system for the Subdivision.
(e) All driveway access to Lots must be via the private road system. No driveway access is permitted directly to Buckman Road or Camino La Tierra, where Lots are adjacent to such roads.
(f) No security gate or other improvement shall be placed on any driveway access route to any Lot if the same would prevent or unduly hinder access to such Lot from a Subdivision road by emergency vehicles.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Second Amendment to said First Amended Declaration of Covenants Conditions and Restrictions for La Tierra Nueva Subdivision, amended by First Amendment as aforesaid, which amendment was approved by the Members on and effective as of December 20, 2008.
￼Third AMENDMENT TO FIRST AMENDED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR LA TIERRA NUEVA SUBDIVISION
The First Amended Declaration of Covenants, Conditions and Restrictions for La Tierra Nueva Subdivision, a comprehensive amendment and restatement of the said Declaration (the “First Amended Declaration”) recorded on August 10, 1998 in Book 1526, pages 366-384, as amended by First Amendment recorded on March 16, 1999 in Book 1615, pages 289-290, as amended by another First Amendment recorded on August 8, 2001 in Book 1955, pages 34-35, and as amended by Second Amendment recorded on January 8, 2009 as Instrument #1548683, all in the Records of Santa Fe County, New Mexico, are further amended as set forth below:
Section 6.011(a) shall be deleted in its entirety and the following substituted in place therefor:
Installation, construction or fabrication of any improvements on any Properties, including, without limitation, the placement on any Properties of pens, stockades, corrals, satellite dishes, fences, walls or structures, including, without limitation, driveway structures (“Entryway Structures”), and the construction or installation of additional or alteration to the exterior of existing buildings, structures or improvements.”
A new subparagraph (g) shall be added to Section 6.02 at the end of subparagraph (f) as follows:
“: and (g) an Entryway Structure”
The word “and” immediately before subparagraph (f) shall be deleted in a conforming change.
Section 8.04 a. shall be deleted in its entirety and the following substituted in place therefor:
“ a. Limitation on Placement of Improvements. Any building, structure or improvement (except for an Entryway Structure approved by the Architectural Control Committee) shall be constructed or installed on a Lot so that the same is (i) at least one hundred (100) feet from the nearest boundary of the Lot, provided, (ii) that no building shall be constructed or installed closer than one hundred (100) feet from the nearest defining line or edge, as shown on the Plat, of any interior roadway adjacent to the Lot, which roadway constitutes a Common Area as defined in Section 1.06. All entryway Structures in existence on October 1, 2011, or the plans for the construction of which have been approved by the Architectural Control Committee by the date of adoption of this amendment to Section 8.04 a., shall be deemed approved by the Architectural Control Committee and shall, therefore, be in compliance with Section 8.04 a. (i).”
IN WITNESS WHEREOF, the undersigned has executed and delivered this Third Amendment to the First Amended Declaration of Covenants, Conditions and Restrictions for La Tierra Nueva Subdivision, approved by the Members on and effective as of December 17, 2011.
La Tierra Nueva Homeowners’ Association, a New Mexico nonprofit corporation.