WQ0043279_Application (FTSE)_20220314

mcgdl .
Shaping Communities Together
March 10, 2022
Mr. Alex Lowe, Environmental Specialist II
NCDEQ, DWR
450 W. Hanes Mill Road
Suite 300
Winston-Salem, North Carolina 27105
RE: Fast Track Permit Application
The Bluffs at Blowing Rock
City of Hickory, Catawba County, North Carolina
Dear Mr. Lowe:
On behalf of Carolina Water Service, Inc. of North Carolina please find enclosed one (1) original
and one (1) copy of the following for the above referenced project:
• Executed Fast Track application form FTA 06-21
• Flow Tracking/Acceptance Form FTSE 10-18
• Check in the amount of $480 for the application fee
• An 8.5 by 11-inch portion of a USGS map showing the project area
• A street/location map showing the project area
• A copy of executed Operational Agreement (FORM-HOA)
• A copy of the Articles of Declarations.
The project generally consists of the installation of approximately 2,075 LF of 8" gravity sewer line
and appurtenances to convey the wastewater to the Buckeye Creek WWTP (NC0087963). The
Bluffs at Blowing Rock Property Owner's Association, Inc. will own and maintain the proposed
gravity sewer lines.
Thank you in advance for your review of this critical project. Please let us know if you have any
questions.
Sincerely,
MCGILL ASSOCIATES, P.A.
MJ Chen, PE, PhD
Senior Project Manager
Enclosures
Cc: Jay Harrill, Foscoe Realty and Development (email)
Matt Oetting, PE, McGiII Associates, P.A. (email)
J Meliski, PE, McGill Associates, P.A. (email)
P:\2020\20.00149-FoscoeCo-BR 64Ac Due Diligence\Design\Permits\Fast Track\FTA Cover Letter
MCGILL ASSOCIATES 55 BROAD STREET, ASHEVILLE, NC 28801 / 828.252.0575 / MCGILLASSOCIATES.COM

DWR
Division of Water Resources
State of North Carolina
Department of Environmental Quality
Division of Water Resources
FAST TRACK SEWER SYSTEM EXTENSION APPLICATION
FTA 06-21 & SUPPORTING DOCUMENTATION
Application Number: (to be completed by DWR)
All items must be completed or the application will be returned
I. APPLICANT INFORMATION:
1. Applicant's name: The Bluffs at Blowing Rock Property Owner's Association(company, municipality, HOA, utility, etc.)
2. Applicant type: ❑ Individual ❑ Corporation ❑ General Partnership ® Privately -Owned Public Utility
❑ Federal ❑ State/County ❑ Municipal
3. Signature authority's name: James E. Harrill II per 15A NCAC 02T .0106(b)
Title: President
4. Applicant's mailing address: 133 Echota Parkway
City: Boone State: NC Zip: 28607
5. Applicant's contact information:
Phone number: [phone] Email Address: [e-mail]
❑ Other
II. PROJECT INFORMATION:
1. Project name: The Bluffs at Blowing Rock
2. Application/Project status: ® Proposed (New Permit) ❑ Existing Permit/Project
If a modification, provide the existing permit number: WQ00 and issued date:
For modifications, also attach a detailed narrative description as described in Item G of the checklist.
If new construction, but part of a master plan, provide the existing permit number: WQ00
3. County where project is located: Wataugua
4. Approximate Coordinates (Decimal Degrees): Latitude: 36.1258°N Longitude:-81.7139°W
5. Parcel ID (if applicable): 18978421460000 (or Parcel ID to closest downstream sewer)
III. CONSULTANT INFORMATION:
1. Professional Engineer: Manjiang Chen License Number: 039025
Firm: McGill Associates, PA
Mailing address: 55 Broad Street,
City: Asheville, State: NC Zip: 28801-
Phone number: [phone] Email Address: [e-mail]
IV. WASTEWATER TREATMENT FACILITY (WWTF) INFORMATION:
1. Facility Name: Buckeye Creek WWTP Permit Number: NC0087963
Owner Name: The Bluffs at Blowing Rock Property Owner's Association, Inc.
V. RECEIVING DOWNSTREAM SEWER INFORMATION:
1. Permit Number(s): WQ
2. Downstream (Receiving) Sewer Information: inch
E Gravity E Force Main
3. System Wide Collection System Permit Number(s) (if applicable): WQCS
Owner Name(s):
FORM: FTA 06-21
Page 1 of 5

VI. GENERAL REQUIREMENTS
1. If the Applicant is a Privately -Owned Public Utility, has a Certificate of Public Convenience and Necessity been attached?
❑ Yes ❑ No ® N/A
2. If the Applicant is a Developer of lots to be sold, has a Developer's Operational Agreement (FORM: DEV) been attached?
❑ Yes ❑ No ® N/A
3. If the Applicant is a Home/Property Owners' Association, has an HOA/POA Operational Agreement (FORM: HOA) and
supplementary documentation as required by 15A NCAC 02T.0115(c) been attached?
❑ Yes ❑ No ❑ N/A
4. Origin of wastewater: (check all that apply):
® Residential (Individually Owned) ❑ Retail (stores, centers, malls)
❑ Residential (Leased) ❑ Retail with food preparation/service
❑ School / preschool / day care ❑ Medical / dental / veterinary facilities
❑ Food and drink facilities ❑ Church
❑ Businesses / offices / factories ❑ Nursing Home
❑ Car Wash
❑ Hotel and/or Motels
❑ Swimming Pool/Clubhouse
❑ Swimming Pool/Filter Backwash
❑ Other (Explain in Attachment)
5. Nature of wastewater : 100 % Domestic % Commercial % Industrial (See 15A NCAC 02T .0103(20))
If Industrial, is there a Pretreatment Program in effect? ❑ Yes ❑ No
6. Has a flow reduction been approved under 15A NCAC 02T .0114(f)? ❑ Yes ® No
➢ If ves, provide a copy of flow reduction approval letter with this application
7. Summarize wastewater generated by project:
Establishment Type (see 02T.0114(f)) p Daily Design Flow a,b
No. of Units
Flow
4-bedroom
480 gal/day
7
3360 GPD
3-bedroom
360 gal/day
21
7560 GPD
2-bedroom
240 gal/day
14
3360 GPD
4-bedroom townhome
480 gal/day
14
6720 GPD
Single Family
360 gal/day
3
1080 GPD
gal/
GPD
Total
22,080 GPD
a See 15A NCAC 02T .0114(b), (d), (e)(1) and (e)(2) for caveats to wastewater design flow rates (i e , minimum flow per
dwelling; proposed unknown non-residential development uses; public access facilities located near high public use areas;
and residential property located south or east of the Atlantic Intracoastal Waterway to be used as vacation rentals as defined
in G.S. 42A-4).
b Per 15A NCAC 02T .0114(c), design flow rates for establishments not identified [in table 15A NCAC 02T.0114] shall be
determined using available flow data, water using fixtures, occupancy or operation patterns, and other measured data.
8. Wastewater generated by project: 22,080 GPD (per 15A NCAC 02T .0114)
➢ Do not include future flows or previously permitted allocations
If permitted flow is zero, please indicate why:
❑ Pump Station/Force Main or Gravity Sewer where flow will be permitted in subsequent permits that connect to this line.
Please provide supplementary information indicating the approximate timeframe for permitting upstream sewers with flow.
❑ Flow has already been allocated in Permit Number: Issuance Date:
❑ Rehabilitation or replacement of existing sewers with no new flow expected
❑ Other (Explain):
FORM: FTA 06-21
Page 2 of 5

VII. GRAVITY SEWER DESIGN CRITERIA (If Applicable) - 02T .0305 & MDC (Gravity Sewers):
1. Summarize gravity sewer to be permitted:
Size (inches)
Length (feet)
Material
8
1,970
DIP
➢ Section II & III of the MDC for Permitting of Gravity Sewers contains information related to design criteria
➢ Section III contains information related to minimum slopes for gravity sewer(s)
➢ Oversizing lines to meet minimum slope requirements is not allowed and a violation of the MDC
VIII. PUMP STATION DESIGN CRITERIA (If Applicable) — 02T .0305 & MDC (Pump Stations/Force Mains):
PROVIDE A SEPARATE COPY OF THIS PAGE FOR EACH PUMP STATION INCLUDED IN THIS PROJECT
1. Pump station number or name:
2. Approximate Coordinates (Decimal Degrees): Latitude: . Longitude: -
3. Total number of pumps at the pump station:
3. Design flow of the pump station: millions gallons per day (firm capacity)
➢ This should reflect the total GPM for the pump station with the largest pump out of service.
4. Operational point(s) per pump(s): gallons per minute (GPM) at feet total dynamic head (TDH)
5. Summarize the force main to be permitted (for this Pump Station):
Size (inches)
Length (feet)
Material
If any portion of the force main is less than 4-inches in diameter, please identify the method of solids reduction per
MDCPSFM Section 2.01C.1.b. ❑ Grinder Pump ❑ Mechanical Bar Screen ❑ Other (please specify)
6. Power reliability in accordance with 15A NCAC 02T .0305(h)(1):
❑ Standby power source or ❑ Standby pump
➢ Must have automatic activation and telemetry - 15A NCAC 02T.0305(h)(1)(B):
➢ Required for all pump stations with an average daily flow greater than or equal to 15,000 gallons per day
➢ Must be permanent to facility and may not be portable
Or if the pump station has an average daily flow less than 15,000 gallons per day 15A NCACO2T.0305(h)(1)(C):
❑ Portable power source with manual activation, quick -connection receptacle and telemetry -
or
❑ Portable pumping unit with plugged emergency pump connection and telemetry:
➢ Include documentation that the portable source is owned or contracted by the applicant and is compatible with the station.
➢ If the portable power source or pump is dedicated to multiple pump stations, an evaluation of all the pump stations' storage
capacities and the rotation schedule of the portable power source or pump, including travel timeframes, shall be provided
as part of this permit application in the case of a multiple station power outage.
FORM: FTA 06-21 Page 3 of 5

IX. SETBACKS & SEPARATIONS — (02B .0200 & 15A NCAC 02T .0305(f)):
1. Does the project comply with all separations/alternatives found in 15A NCAC 02T .0305(f) & (g)?
15A NCAC 02T.0305(fl contains minimum separations that shall be provided for sewer systems:
® Yes ❑ No
Setback Parameter*
Separation Required
Storm sewers and other utilities not listed below (vertical)
18 inches
2Water mains (vertical - water over sewer preferred, including in benched trenches)
18 inches
2Water mains (horizontal)
10 feet
Reclaimed water lines (vertical - reclaimed over sewer)
18 inches
Reclaimed water lines (horizontal - reclaimed over sewer)
2 feet
**Any private or public water supply source, including any wells, WS-I waters of Class I or
Class II impounded reservoirs used as a source of drinking water, and associated wetlands.
100 feet
**Waters classified WS (except WS-I or WS-V), B, SA, ORW, HQW, or SB from normal
high water (or tide elevation) and wetlands associated with these waters (see item IX.2)
50 feet
**Any other stream, lake, impoundment, or ground water lowering and surface drainage
ditches, as well as wetlands associated with these waters or classified as WL.
10 feet
Any building foundation (horizontal)
5 feet
Any basement (horizontal)
10 feet
Top slope of embankment or cuts of 2 feet or more vertical height
10 feet
Drainage systems and interceptor drains
5 feet
Any swimming pools
10 feet
Final earth grade (vertical)
36 inches
➢ If noncompliance with 02T.0305(f) or (g), see Section X.1 of this application
*15A NCAC 02T.0305(g) contains alternatives where separations in 02T.0305(f) cannot be achieved. Please check "yes"
above if these alternatives are used and provide narrative information to explain.
**Stream classifications can be identified using the Division's NC Surface Water Classifications webpage
2. Does this project comply with the minimum separation requirements for water mains? ® Yes ❑ No ❑ N/A
➢ If no, please refer to 15A NCAC 18C.0906(f) for documentation requirements and submit a separate document,
signed/sealed by an NC licensed PE, verifying the criteria outlined in that Rule.
3. Does the project comply with separation requirements for wetlands? ® Yes ❑ No ❑ N/A
➢ Please provide supplementary information identifying the areas of non-conformance.
➢ See the Division's draft separation requirements for situations where separation cannot be met.
➢ No variance is required if the alternative design criteria specified is utilized in design and construction.
4. Is the project located in a river basin subject to any State buffer rules? ❑ Yes Basin name: ® No
If yes, does the project comply with setbacks found in the river basin rules per 15A NCAC 02B .0200? ❑ Yes ❑ No
➢ This includes Trout Buffered Streams per 15A NCAC 2B.0202
5. Does the project require coverage/authorization under a 404 Nationwide/individual permits ❑ Yes ® No
or 401 Water Quality Certifications?
➢ Please provide the permit number/permitting status in the cover letter if coverage/authorization is required.
6. Does project comply with 15A NCAC 02T.0105(c)(6) (additional permits/certifications)? ® Yes ❑ No
Per 15A NCAC 02T.0105(c)(6), directly related environmental permits or certification applications must be being prepared,
have been applied for, or have been obtained. Issuance of this permit is contingent on issuance of dependent permits (erosion
and sedimentation control plans, stormwater management plans, etc.).
7. Does this project include any sewer collection lines that are deemed "high -priority?" ❑ Yes ® No
Per 15A NCAC 02T.0402, "high -priority sewer" means any aerial sewer, sewer contacting surface waters,
siphon, or sewers positioned parallel to streambanks that are subject to erosion that undermines or deteriorates the sewer.
Siphons and sewers suspended through interference/conflict boxes require a variance approval.
➢ If yes, include an attachment with details for each line, including type (aerial line, size, material, and location).
High priority lines shall be inspected by the permittee or its representative at least once every six -months and
inspections documented per 15A NCAC 02T.0403(a)(5) or the permittee's individual System -Wide Collection permit.
FORM: FTA 06-21 Page 4 of 5

X. CERTIFICATIONS:
1. Does the submitted system comply with 1 SA NCAC 02T, the Minimum Design Criteria for the Permitting of Pump Stations
and Force Mains .latest version) and the Gravity Sewer Minimum Design Criteria (latest version) as applicable?
® Yes ❑ No
If no, for projects requiring a single variance, complete and submit the Vatiance!Alternative Design Request application
(VADC 10-14) and supporting documents for review to the Central Office. Approval of the request will be issued
concurrently with the approval of the permit, and projects requiring a variance approval may be subject to longer
review times. For proiects requiring two or more variances or where the variance is determined by the Division to be a
significant portion of the project, the full technical review is required.
2. Professional Engineer's Certification:
I, MJ Chen attest that this application for The Bluffs at Blowing Rock
(Professional Engineer's name from Application Item III, L) (Project Name from Application Item ILl)
has been reviewed by me and is accurate, complete and consistent with the information supplied in the plans,
specifications, engineering calculations, and all other supporting documentation to the best of my knowledge, I further
attest that to the best of my knowledge the proposed design has been prepared in accordance with the applicable regulations,
Minimum Design Criteria for Gravity Sewers (latest version), and the Minimum Design Criteria for the Fast -Track Permitting
of Pump Stations and Force Mains (latest version). Although other professionals may have developed certain portions of this
submittal package, inclusion of these materials undermy signature and seal signifies that I have reviewed this material and
have judged it to be consistent with the proposed design.
NOTE — In accordance with General Statutes 143-215.6A and L43-215,6B, any person who knowingly makes any false
statement, representation, or certification in any application package shall be guilty of a Class 2 misdemeanor, which may
include a fine not to exceed $10,000, as well as civil penalties up to $25,000 per violation. Misrepresentation of the application
information, including failure to disclose any design non-compliance with the applicable Rules and design criteria, may subject
the North Carolina -licensed Professional Engineer to referal to the licensing board. (21 NCAC 56.0701)
North Carolina Professional Engineer's seal, signature, and date:
3. Applicant's Certification per 15A NCAC 02T .0106(b):
I, "Scotts )-krd) i i , attest that this application for J b& 17l 5 Ff- / ilowict 0-ea
(Signature Authority Name from Application Item I.3,) (Project Name from Application Item IL'I4
attest that this application has been reviewed by me and is accurate and complete to the best of my knowledge.
I understand that if all required parts of this application are not completed and that if all required supporting doewnentation
and attachments are not included, this application package is subject to being returned as incomplete. I understand that any
discharge of wastewater from this non -discharge system to surface waters or the land will result in an immediate enforcement
action that may include civil penalties, injunctive relief, and/or criminal prosecution. I will make no claim against the Division
of Water Resources should a condition of this permit be violated. I also understand that if all required parts of this application
package are not completed and that if all required supporting information and attachments are not included, this application
package will be returned to me as incomplete.
NOTE — In accordance with General Statutes 143-215,6A and 143-215.6B, any person who knowingly makes any false
statement, representation, or certification in any application package shall be guilty of a Class 2 misdemeanor, which may
include a fine not to exceed $10,000 as well as civil penalties up to $25,000 per violation,
Signature:
FORM: FTA 06-21
Date:
Page 5 of 5

Q3&R
Division of Water Resources
State of North Carolina
Department of Environmental Quality
Division of Water Resources
Flow Tracking for Sewer Extension Applications
(FTSE 10-18)
Entity Requesting Allocation:
Project Name for which flow is being requested:
More than one FTSE may be required for a single project if the owner of the WWTP is not responsible for all pump
stations along the route of the proposed wastewater flow.
I. Complete this section only if you are the owner of the wastewater treatment plant.
a. WWTP Facility Name: Buckeye Creek WWTP
b. WWTP Facility Permit #: NC0087963
All flows are in MGD
c. WWTP facility's permitted flow 0.05
d. Estimated obligated flow not yet tributary to the WWTP 0
e. WWTP facility's actual avg. flow 0
f. Total flow for this specific request 0.022
g. Total actual and obligated flows to the facility 0
h. Percent of permitted flow used 44
II. Complete this section for each pump station you are responsible for along the route of this proposed
wastewater flow.
List pump stations located between the project connection point and the WWTP:
(A) (B) (C) (D)=(B+C) (E)=(A-D)
Design Obligated,
Pump Pump Average Approx. Not Yet Total Current
Station Station Firm Daily Flow** Current Tributary Flow Plus
(Name or Permit Capacity, * (Firm / p f), Avg. Daily Daily Flow, Obligated Available
Number) No. MGD MGD Flow, MGD MGD Flow Capacity***
* The Firm Capacity (design flow) of any pump station is defined as the maximum pumped flow
that can be achieved with the largest pump taken out of service.
** Design Average Daily Flow is the firm capacity of the pump station divided by a peaking factor
(pf) not less than 2.5, per Section 2.02(A)(4)(c) of the Minimum Design Criteria.
*** A Planning Assessment Addendum shall be attached for each pump station located
between the project connection point and the WWTP where the Available Capacity is < 0.
Downstream Facility Name (Sewer):
Downstream Permit Number:
Page 1 of 6
FTSE 10-18

III. Certification Statement:
I --seegli liS H&crit 1 certify to the best of my knowledge that the addition of
the volume of wastewater to be permitted in this project has been evaluated along the route to the receiving
wastewater treatment facility and that the flow from this project is not anticipated to cause any capacity
related sanitary sewer overflows or overburden any downstream pump station en route to the receiving
treatment plant under normal circumstances, given the implementation of the planned improvements
identified in the planning assessment where applicable. This analysis has been performed in accordance
with local established policies and procedures using the best available data. This certification applies to
those items listed above in Sections I and II plus all attached planning assessment addendums for which I
am the responsible party. Signature of this form certifies that the receiving collection system or treatment
works has adequate capacity to transport and treat the proposed new wastewater.
Sig g I fficial : gnature
Dcycloper
Title of Signing Official
3/2/ eA,042-
Date
Page 2 of 6
FTSE 10-18

STATE OF NORTH CAROLINA
COUNTY OF Permit No.
HOME/PROPERTY OWNERS' OPERATIONAL AGREEMENT
This AGREEMENT made pursuant to G.S. 143-215.1 (d1) and entered into this day of
, by and between the North Carolina Environmental Management
Commission, an agency of the State of North Carolina, hereinafter known as the COMMISSION; and
The Bluffs at Blowing Rock Property Owner's Association, Inc., a non-profit corporation organized
and existing under and by virtue of the laws of the State of North Carolina, hereinafter known as the
ASSOCIATION.
WITNESSETH:
1. The ASSOCIATION was formed for the purpose, among others, of handling the property, affairs and
business of the development known as The Bluffs at Blowing Rock Property Owner's Association, Inc.
(hereinafter the Development); of operating, maintaining, re -constructing and repairing the common
elements of the lands and improvements subject to unit ownership, including the wastewater collection
system with pumps, wastewater treatment works, and/or disposal facilities (hereinafter Disposal System);
and of collecting dues and assessment to provide funds for such operation, maintenance, re -construction and
repair.
2. The ASSOCIATION desires, to construct and/or operate a Disposal System to provide sanitary sewage
disposal to serve the Development on said lands.
3. The ASSOCIATION has applied to the COMMISSION for the issuance of a permit pursuant to G.S. 143-
215.1 to construct, maintain, and/or operate the Disposal System.
4. The Development was created subject to unit ownership in the dwellings units, other improvements and
lands through filing of a Declaration of Unit Ownership (hereinafter Declaration), pursuant to Chapter47C
or 47F of the North Carolina General Statutes.
5. The COMMISSION desires to assure that the Disposal System of the Development is properly constructed,
maintained and operated in accordance with law and permit provisions in order to protect the quality of the
waters of the State and the public interest therein.
NOW, THEREFORE, in consideration of the promises and the benefits to be derived by each of the parties hereto,
the COMMISSION and ASSOCIATION do hereby mutually agree as follows:
1. The ASSOCIATION shall construct the Disposal System and/or make any additions or modifications to the
Disposal System in accordance with the permit and plans and specifications hereafter issued and approved
by the COMMISSION, and shall thereafter properly operate and maintain such systems and facilities in
accordance with applicable permit provisions and law.
2. The ASSOCIATION shall provide in the Declaration and Association Bylaws that the Disposal System and
appurtenances thereto are part of the common elements and shall thereafter be properly maintained and
operated in conformity with law and the provisions of the permit for construction, operation, repair, and
maintenance of the system and facilities. The Declaration and Bylaws shall identify the entire wastewater
treatment, collection and disposal system as a common element which will receive the highest priority for
expenditures bythe Association except for Federal, State, and local taxes and insurance.
FORM: HOA 03-19 Page 1 of 2

3. The ASSOCIATION shall provide in the Declaration and Association Bylaws that the Disposal System will
be maintained out of the common expenses. In order to assure that there shall be funds readily available to
repair, maintain, or construct the Disposal System beyond the routine operation and maintenance expenses,
the Declaration and Association Bylaws shall provide that a fund be created out of the common expenses.
Such fund shall be separate from the routine maintenance fund allocated for the facility and shall be part of
the yearlybudget.
4. In the event the common expense allocation and separate fund(s) are not adequate for the construction,
repair, and maintenance of the Disposal System, the Declaration and Association Bylaws shall provide for
special assessments to cover such necessary costs. There shall be no limit on the amount of such
assessments, and the Declaration and Bylaws shall be provided such that special assessments can be made
as necessary at any time.
5. If a wastewater collection system and wastewater treatment and/or disposal facility provided by any city,
town, village, county, water and sewer authorities, or other unit of government shall hereinafter become
available to serve the Development, the ASSOCIATION shall take such action as is necessary to cause the
existing and future wastewater of the Development to be accepted and discharged into said governmental
system, and shall convey or transfer as much of the Disposal System and such necessary easements as the
governmental unit mayrequire as condition of accepting the Development's wastewater.
6. Recognizing that it would be contrary to the public interest and to the public health, safety and welfare for
the ASSOCIATION to enter into voluntary dissolution without having made adequate provision for the
continued proper maintenance, repair and operation of its Disposal System, the ASSOCIATION shall
provide in the ASSOCIATION Bylaws that the ASSOCIATION shall not enter into voluntary dissolution
without first having transferred its said system and facilities to some person, corporation or other entity
acceptable to and approved by the COMMISSION bythe issuance of a permit.
7. The ASSOCIATION shall not transfer, convey, assign or otherwise relinquish or release its responsibility
for the operation and maintenance of its Disposal System until a permit has been reissued to the
ASSOCIATION'S successor.
8. The agreements set forth in numbered paragraphs 1, 2, 3, 4, 5, 6, and 7 above shall be conditions of any
permit issued by the COMMISSION to the ASSOCIATION for the construction, maintenance, repair and
operation of the Disposal System.
9. A copy of this agreement shall be filed at the Register of Deeds in the County(ies) where the Declaration is
filed and in the offices of the Secretary of State of North Carolina with the Articles of Incorporation of the
Association.
IN WITNESS WHEREOF, this agreement was executed in duplicate originals by the duly authorized
representative of the parties hereto on the day and year written as indicated by each of the parties named below:
FOR THE
ENVIRONMENTAL The Bluffs at Blowing Rock Property Owner's Association, Inc.
MANAGEMENT COMMISSION
S. Daniel Smith
Director, Division of Water Resources
Name ofASSOCIA
By:
(Signatu
65 H&rr;fl
Print Name and Title
2/%
(Date) (Date)
ON,
Pres;ota'
FORM: HOA 03-19 Page 2 of 2

FILED Amy J Shook
Register of Deeds, Watauga Co, NC
Fee Amt $118 00
Bk 2261 Pg 7 (38)
Recorded 03/11/2022 at 08 37 06 AM
Doc No 717942 Ktnd DECL
11I0111lIIIII
7 7942
DECLARATION OF RESTRICTIONS
FOR
THE BLUFFS AT BLOWING ROCK
V Prepared by and Return to:
Alison R. Cayton
Manning, Fulton & Skinner, P.A.
PO Box 20389
Raleigh, NC 27619-0389
1111111111
III
I
3628133v1.ARC 31483 T29650

Bk 2261
Pg 8
Doo No 717942 Ktnd DELL
NORTH CAROLINA
WATAUGA COUNTY
DECLARATION OF RESTRICTIONS FOR
THE BLUFFS AT BLOWING ROCK
THIS DECLARATION OF RESTRICTIONS, made this (1) day ofCL, 20244 by
J3M, LLC, a North Carolina limited liability company (hereinafter referred to as 'Declarant");
WITNESSETH.
WHEREAS, Declarant is the owner of the real property described in Paragraph 1 of this
Declaration of Restrictions and is desirous of subjecting said real property to the protective covenants
hereinafter set forth, each of which is for the benefit of such property and for each owner thereof, and
each and every tract or parcel thereof, and shall apply to and bind the successors in interest and any
owner thereof.
NOW, THEREFORE, the Declarant hereby declares that the real property described in and
referred to in Paragraph I hereof is and shall be held, transferred sold and conveyed subject to the
protective covenants set forth below.
1. The real property which initially is and shall be held, transferred, sold and conveyed
subject to these protective covenants set forth in the paragraphs of this Declaration of Restrictions is
located in Watauga County, North Carolina, and is more particularly described as follows.
THAT CERTAIN TRACT OF LAND AS DESCRIBED IN EXHIBIT A ATTACHED
HERETO AND INCORPORATED HEREIN BY REFERENCE
2. The real property described in Paragraph 1 hereof is subjected to the protective
covenants arid restrictions hereby declared to insure the best use and the most appropriate development
and improvement of said property; to protect the owners of parcels against such improper use of
surrounding properties as would depreciate the value of their property; to preserve so far as practicable
the natural beauty of said property; to guard against the erection thereon of poorly designed or
proportioned structures, and structures built of improper or unsuitable materials, to obtain harmonious
color schemes, to insure the highest and best development of said property; to encourage and secure the
erection of attractive structures thereon with appropriate locations thereon; to prevent haphazard and
inharmonious improvement of said property; to secure and maintain a high type and quality of
improvement in said property, and thereby to enhance the values of investments made by purchasers of
parcels therein. This Declaration shall initially apply to the real property described in paragraph I.
Provided Declarant reserves for itself and its successors and assigns the right to subject additional
property to the provisions of this Declaration in the manner hereinafter provided. No property of the
Declarant presently owned or hereafter acquired shall be subject to these restrictions except that property
now or hereafter made subject hereto as provided in these restrictions.
ARTICLE I.
DEFINITIONS
The terms in this Declaration and the attached Exhibits shall generally be given their natural,
commonly accepted definitions except as otherwise specified. Terms shall be defined as set forth below.
1.1. Association. The Bluffs at Blowing Rock Property Owners Association, Inc., a North
Carolina Non -Profit Incorporated Association.
1.2. Board of Directors or Board. The elected body of the Association having its normal
meaning under North Carolina corporate law.
1.3 By -Laws. The By -Laws of The Bluffs at Blowing Rock Property Owners Association,
Inc., a copy of which is attached as Exhibit C to this Declaration, as they may be amended.
1.4. Common Area. All real and personal property, including easement rights, which the
Association owns, leases, or otherwise holds possessory or use rights in for the common use and
enjoyment of the Owners and which shall include the Water System and the Wastewater System, as more
fully defined herein. The term shall include Limited Common Area, as defined below. Said real property,
including improvements thereon, shall be labeled as "Common Area" or "Common Elements' on the
recorded maps and plats for The Bluffs at Blowing Rock and shall also include all roads and streets
shown thereon (except for public roads and streets).
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1.5. Common Expenses. The actual and estimated expenses of operating the Association,
including any reasonable reserve. Common expenses are all expenses which may be found to be
necessary and appropriate by the Board acting under the authority of this Declaration and the By -Laws.
Common expenses shall not include any expenses incurred for construction or installation of
infrastructure capital improvements, or other construction or development undertaken by the Declarant
unless approved by a majority of the total Class "A" votes in the Association. Notwithstanding the
foregoing expenses related to the operation, maintenance re -construction and repairing of the
Wastewater System and the Water System shall be Common Expenses.
1.6. Community -Wide Standard. The standard of conduct, maintenance, or other activity
generally prevailing throughout the Properties. Such standard may be more specifically determined by
the Board and by the Declarant.
1.7. Condominiums. All condominiums created pursuant to Chapter 47C of the North
Carolina General Statutes which may be developed by Declarant on the Properties.
1.8. Condominium Associations. Those certain incorporated Associations consisting of unit
owners in the Condominiums created pursuant to the Condominium Declarations.
1.9. Condominium Declarations. Those certain Declarations of Condominium made by
Declarant in order to create the Condominiums.
1.10. Declarant. J3M, LLC, a North Carolina limited liability company or any successor,
successor in title, or any assign who takes title to any portion of the property described on Exhibits A or
B of this Declaration for the purpose of development and/or sale and who is designated as the Declarant
in a recorded instrument executed by the immediately preceding Declarant; provided, there shall be only
one entity entitled to exercise the rights of the Declarant hereunder at any time.
1.11. Declarant Control Period. The period commencing on the date of recordation of this
Declaration and continuing until the later of (a) December 31, 2042; (b) 120 days after conveyance of 61
Units (as hereinafter defined) within the Properties to an Owner other than Declarant; or (c) the date
upon which Declarant voluntarily terminates the Declarant Control Period.
1.12. Detached Single Family. Those certain detached single-family stand-alone residences
constructed within the properties arranged in unit clusters with designated common areas for the
exclusive use and benefit of said planned unit clusters.
1.13. Development. The Bluffs at Blowing Rock, a residential development proposed to be
developed on the Properties of the Declarant.
1.14. General Assessment. Assessments levied on all Units subject to assessment under
Article V to fund Common Expenses for the general benefit of all Units and their Owners.
1.15. Governing Documents. This Declaration, the By -Laws, the Articles of Incorporation of
the Association, any applicable Supplemental Declaration, the Use Restrictions and Rules, and any
design guidelines which may be adopted by the Board, as they may be amended from time to time in.
accordance with their terms.
1.16. Limited Common Area. A portion of the Common Area intended for the primary use or
benefit of one or more, but less than all, Units. Limited common Area shall be designated as such, and
the Units which it is intended to benefit (the "Benefited Units') shall be identified, in the deed or other
instrument, granting the Association rights in such property. All costs of ownership, maintenance, repair,
replacement, insurance and operation of any Limited Common Area shall be assessed as a Specific
Assessment against only those Units identified as the Benefited Units in the instrument designating such
Limited Common Area.
1.17. Lot. Any plot of land, with established boundary lines, described in the deeds of
conveyance or appearing on the recorded plats for The Bluffs at Blowing Rock, but excluding all
common areas or any plots of land to be used or permitted by Declarant in developing any
Condominiums.
1.18. Majority. A simple majority (more than 50%) of the total number comprising the
subject class or group.
1.19. Maps or Plats. The maps of the Properties as recorded (either at this time or a later date)
in the Watauga County, North Carolina, Public Registry.
1.20. Member. A person or entity entitled to membership in the Association.
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1.21. Owner. The record owner, whether one or more persons or entities, of a fee simple title
interest in any Unit which is included within the Properties, including Declarant if it owns any Unit, but
excluding those having such interest merely as security for the performance of an obligation.
1.22.
entity.
Person. A natural person, a corporation, a partnership, a trustee, or any other legal
1.23. Planned Unit Detached Single Family and Townhouses. Those certain detached and
attached residences constructed within the Properties which shall be arranged in planned unit clusters
with designated Common Areas for the exclusive use and benefit of said planned unit clusters.
Townhouse residences may include duplexes constructed in the townhouse style with party walls.
1.24. Planned Unit Declarations. Those certain declarations of restrictions which may be
created or permitted by Declarant in order to create planned unit detached single family and townhouse
Associations.
1.25. Planned Unit Owners Associations. Those certain Associations of Detached Single
Family and Townhouse lot owners which are created pursuant to the provisions of the Planned Unit
Declarations.
1.26. Properties. The properties which are now or may hereafter be made subject to this
Declaration and brought within the jurisdiction of the Association.
1.27. Single Family Dwelling. A single-family stand-alone residence within the properties.
1.28. Special Assessment. Assessments levied in accordance with Section 5.4.
1.29 Special Declarant Rights. Rights reserved for the benefit of a declarant to complete
improvements indicated on plats and plans filed with the declaration of condominium (G.S. 47C-2-109);
to exercise any development right (G.S 47C-2-110)• to maintain sales offices, management offices, signs
advertising the condominium, and models (G S. 47C-2-115); to use easements through the common
elements for the purpose of making improvements within the condominium or within real estate which
may be added to the condominium (G.S. 47C-2-116); to make the condominium part of a larger
condominium (G.S. 47C-2-121) or to appoint or remove any officer of the association or any executive
board member during any period of declarant control (G.S. 47C-3-103(d).
As to portions of the Property not subject to a Condominium Declaration, this shall mean rights
reserved to the Declarant as provided in G.S. 47F-1-103(28) and other rights of Declarant provided in
G.S. 47F et seq.
1.30. Supplemental Declaration. An instrument filed in the Watauga County Public Registry
pursuant to Article VI which subjects additional property to this Declaration and/or imposes, expressly or
by reference, additional restrictions and obligations on the land described in such instrument.
1.31 Townhouse. Those certain attached residences constructed within the properties
arranged in unit clusters with designated common areas for the exclusive use and benefit of said planned
unit clusters. Said residences may include duplexes constructed in the townhouse style with party walls.
1.32. Townhouse Association. Those certain associations of Townhouse lot owners on the
properties.
1.33. Unit. A portion of the Properties, whether improved or unimproved, which may be
independently owned and conveyed, and which is intended for development, use, and occupancy as a
residence. For example, the term shall refer to each numbered lot shown on a subdivision plat filed in
the Watauga County Public Registry with respect to any portion of the Properties, together with the
structures, if any, constructed \thereon. The term shall also refer to each dwelling unit within a
condominium, vacant land intended for further subdivision, detached single-family residences and
townhouses. In the case of a structure containing multiple dwelling units held for rental purposes, each
unit shall be deemed a separate unit, regardless of the ownership of such property. With respect to any
portion of the Properties intended for subdivision into single family lots but as to which no subdivision
plat has been filed, such property shall be deemed to be a single Unit until such time as a subdivision
plat is filed for record in the Watauga County Public Registry with respect to all or a portion of said
property. Thereafter, the portion included on such plat as set forth above and any portion not platted
shall continue to be treated as a single Unit.
1.34. Use Restrictions and Rules. Those use restrictions and rules applicable to all or any
portion of the Properties which may be adopted, modified and repealed as set forth in Article VIII.
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1.35 Wastewater System. The wastewater collection system, including pumps, wastewater
treatment works and/or disposal facilities and any other related facilities for the Properties, which will
be owned by the Association.
1.36 Water System. The wells, water lines and related facilities for the Properties, which
will be owned by the Association
ARTICLE II
GOVERNANCE AND ADMINISTRATION
2.1. Function of Association.
(a) General. The Association shall manage, maintain, operate, insure and control the Common
Area and all improvements thereon (including, without limitation, landscaping, furnishings,
equipment, and other personal property of the Association used in connection with the Common
Area). In addition, the Association shall perform such maintenance and provide such services within
the Properties as specifically provided or authorized in the Governing Documents. The Association
shall be the primary entity responsible for enforcement of the Governing Documents. The Association
is specifically authorized, but not obligated, to employ such contractors, employees, professionals and
others as it deems necessary to assist in exercising its authority under this Declaration The
Association may transfer or assign any or all of its rights or responsibilities hereunder to other entities
and, in such event, references to the Association in this Declaration shall be deemed to refer to such
transferee or assignee, as applicable.
(b) Acceptance and Control of Common Area. The Association may acquire, hold and dispose
of tangible and intangible real and personal property. The Association shall accept any real or personal
property, or interests therein, which the Declarant may convey to it, and thereafter shall maintain and
operate such property as Common Area for the benefit of its Members and any other persons having
an interest therein, subject to any limitations and obligations contained in the deed or other instrument
granting the Association an interest in such property. Any property transferred to the Association as
Limited Common Area shall be maintained, operated and insured by the Association for the benefit of
the Units specified in the instrument granting the Association's interest in such property (the
' Benefited Units"), and all costs thereof shall be assessed equally among the Benefited Units as a
specific assessment.
There shall be no restriction on the rights of the Association to sell, lease, encumber, or convey all
or portions of the Common Area and to dedicate all or portions of the Common Area to any governmental
or quasi -governmental body, except that the Association shall not sell, lease, encumber, convey or
dedicate any portion of the Common Area upon which structures have been constructed unless (i)
approval has been provided by the Association pursuant to the requirements of North Carolina General
Statutes 47F, (ii) the Association has first offered the Common Area or portion of the Common Area for
sale, lease, encumbrance or conveyance to the Declarant on the same terms, and (iii) the sale, lease,
encumbrance or conveyance: (a) is made subject to the rights of the Association and its Members to
continue using such Common Area at no greater cost than a fair allocation of the reasonable costs of
maintenance, repair, replacement, operation and insurance of the property between the Association and
any other persons entitled to the use thereof; or (b) is approved by at least two-thirds of the total Class
"A" votes in. the Association.
(c) Implied Rights and Board Authority. The Association, acting through its Board, may exercise
any right or privilege given to it expressly by the Governing Documents or reasonably implied from,
or reasonably necessary to effectuate, any express right or privilege. The Board shall be authorized to
exercise all rights and powers of the Association except to the extent that the Governing Documents
specifically require approval of the Members.
(d) Enforcement. The Association, acting through the Board, shall have the right to enforce the
Governing Documents by suit, to recover monetary damages or obtain injunctive relief, or both In any
situation requiring immediate action to avoid endangering or inconveniencing other persons or their
property the Association acting through any director, officer, or Board designee, may enter upon a
Unit and take such action as may reasonably be necessary to abate or cure any violation of the
Governing Documents without such entry being deemed a trespass. The Association, acting through its
Board, shall be deemed to possess all powers and authority set forth in the North Carolina Planned
Community Act, set forth in Chapter 47F of the North Carolina General Statutes.
The Association, by board action, may take any of the following actions after notice to the alleged
violator in an opportunity for a hearing in accordance with the procedures set forth in the By -Laws or
in the North Carolina Planned Community Act. (i) impose reasonable monetary fines which shall
constitute a lien upon the Unit owned or occupied by the violator, if not paid within the time specified
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In the notice of such sanction; (ii) suspend an Owner's right to vote; (iii) suspend the right to use any
recreational facilities within the Common Area; (iv) suspend any services provided by the Association
to any Unit whose Owner is more than thirty (30) days delinquent in paying any assessment or other
charge owned to the Association; (v) Upon failure of the Owner to abate or cure any violation of the
Governing Documents, the Board or its designee may enter upon the Unit and take steps to abate or
cure the violation and any such action shall not be deemed to trespass; (vi) levy Specific Assessments
as provided in Section 5.5.
All remedies set forth in the Governing Documents shall be cumulative of any remedies available
at the law or in equity. In any action to enforce the Governing Documents, if the Association prevails, it
shall be entitled to recover all costs, including, without limitation, attorney's fees and court costs,
reasonably incurred in such action.
The Board shall use its reasonable discretion and business judgment in making a determination as
to whether to take enforcement action in a particular situation and the type of action to be taken, if any.
Any decision regarding enforcement of a violation in one instance shall not be construed as a waiver of
the Association to enforce the same provision of the Governing Documents at a later time or under other
circumstances, nor prevent the Association from enforcing any other provision of the Governing
Documents.
(e) Powers of the Association Relating to Other Associations. The Association shall have the
power to veto any action taken or contemplated to be taken by any condominium association or planned
unit owners association having jurisdiction over any portion of the Properties if the Board reasonably
determines such action to be adverse to the interests of the Association or its Members or inconsistent
with the Community -Wide Standard. The Association also shall have the power to require specific action
to be taken by any such condominium association or planned unit owners association in connection with
its obligations and responsibilities, such as requiring specific maintenance or repairs to be made. Upon
failure to comply, the Association shall have the right to take such action on behalf of said condominium
association or planned unit owner s association and to levy Specific Assessments against the Units
subject to such Association's jurisdiction to cover the costs incurred, as well as an administrative charge
and monetary fines
(f) Provision of Services. The Association shall be authorized, but not obligated, to enter into
and terminate, in the Board's discretion, contracts or agreements with other entities to provide services to
and facilities for the Members and their guests, lessees and invitees and to charge use and consumption
fees for such services and facilities as a part of the General Assessment, if provided to all Members or
Units, or as a Specific Assessment, if provided to less than all Members or Units. Such services and
facilities may include but shall not be limited to landscape maintenance security, fire protection, utilities
and similar services and facilities. Any agreement entered into by the Association with the Declarant or a
company with which Declarant or its principals is affiliated during the Declarant Control Period for the
provision of services or facilities shall be on commercially reasonable terns and at commercially
reasonable rates.
Section 2.2. Membership. Every Owner shall be a Member of the Association. There shall be only
one membership per Unit. If a unit is owned by more than one person, all co -owners shall share the
privileges of such membership, subject to reasonable Board Regulation and the restrictions on voting
set forth below and in the By -Laws, and all such co -owners shall be jointly and severally obligated to
perform the responsibilities of Owners. The membership rights of an Owner which is not a natural
person may be exercised by any officer, director, partner or trustee, or by the individual designated
from time to time by the Owner in a written instrument provided to the Secretary of the Association.
Section 2.3. Voting. The Association shall have two classes of membership, Class "A" and Class
(a) Class "A". Class "A" Members shall be all Owners except the Class "B" Member, if
any. Class "A" Members shall have one equal vote for each Unit in which they hold the interests
required for membership under Section 2.2, except that there shall be only one vote per Unit
(b)Class "B". The sole Class "B" Member shall be the Declarant. The Class "B" Member
may appoint a majority of the members of the Board of Directors during the Declarant Control Period.
Additional rights of the Class "B" Member, including the right to approve, or withhold approval of,
actions proposed under this Declaration, the By -Laws and the Articles of Incorporation, are specified in
the relevant sections of this Declaration, the By -Laws and the Articles.
The Class ' B" membership shall terminate upon the earlier of (i) expiration of the
Declarant Control Period as defined in Article I of this Declaration and in the By -Laws; or (u) when, m
its discretion, the Declarant so determines and declares in a recorded instrument.
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Upon termination of the Class "B" membership, the Declarant shall be a Class "A"
Member entitled to Class "A" votes for each Unit which it owns.
(c) Exercise of Voting Rights. In any situation where there is more than one Owner of a
Unit, the vote for such Unit shall be exercised as the co -owners determine among themselves and
advise the Secretary of the Association in writing prior to the vote being taken. Absent such advice, the
Units vote shall be suspended if more than one person seeks to exercise it.
ARTICLE Ill
MAINTENANCE
3.1. Maintenance Property.
(a) The Association shall maintain, operate and keep in good repair the Maintenance Property,
which shall include but need not be limited to.
(1) all roadways and rights of way, all landscaping, signage, lighting, irrigation
systems and equipment fences, walls and other structures and improvements, including any parking
areas, maintenance facilities, sidewalks, paths and trails, situated upon the Common Area;
(ii) landscaping and signage within any public rights -of -way running through or
adjacent to the Properties, except to the extent such responsibility is assigned to Owners under Section
3.2;
(iii) any ponds, streams, swales rip rap, wetlands and related devices and facilities
located within the Properties which serve as part of the drainage and storm water retention system for
the Properties, including any retaining walls, bulk heads or dams retaining water therein;
the Wastewater System;
the Water System;
(vi) the mail kiosk and entry gate, including any key pad or other device for
operation of the entry gate;
(vii) the common use dumpster or compactor located on the Properties for use by the
Owners;
(viii) such portions of any additional property included within the Maintenance
Property as may be dictated by this Declaration or any Supplemental Declaration; and
(ix) any property and facilities owned by the Declarant and made available, on a
temporary or permanent basis, for the primary use and enjoyment of the Owners or the primary benefit
of the Units, such property and facilities to be identified by written notice from the Declarant to the
Association and to remain a part of the Maintenance Property unless and until such time as the
Declarant revokes such privilege of use and enjoyment by written notice to the Association; provided,
nothing shall be included in the Maintenance Property hereunder which has no use or benefit to the
Owners or their Units.
The Association may maintain other property which it does not own, including, without
limitation, property dedicated to the public, if the Association determines that such maintenance is
necessary or desirable to maintain the Community -Wide Standard.
(b) Except as otherwise specifically provided herein, all costs associated with maintenance, repair
and replacement of the Maintenance Property shall be a Common Expense to be allocated among all
Units subject to assessment under Article V as part of the General Assessments, without prejudice to the
right of the Association to seek reimbursement for such expenses from the owners of, or other persons
responsible for, certain portions of the Maintenance Property pursuant to this Declaration.
(c) The Association shall own, maintain and operate the Wastewater System and the Water
System in conformity with all applicable permit provisions, laws and regulations of both Watauga
County and the State of North Carolina.
3.2. Owner's Responsibility. Each Owner shall be responsible for maintaining his or her
Unit and all structures, parking areas, and other improvements comprising the Unit in a manner
consistent with the Community -Wide Standard and all applicable covenants.
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3.3. Responsibility of Other Associations Any condominium association, townhouse
association, detached single family association, or planned unit owner's association which owns or
controls property for the benefit of more than one Unit shall be responsible for maintaining such
property and all structures, parking areas, and other improvements on such property in a manner
consistent with the Community -Wide Standard and all applicable covenants.
3.4. Standard of Performance. Unless otherwise specifically provided herein or in other
instruments creating and assigning such maintenance responsibility, responsibility for maintenance shall
include responsibility for repair and replacement, as necessary. All maintenance shall be performed in a
manner consistent with the Community -Wide Standard and all applicable covenants. The Association
shall not be liable for any damage or injury occurring on, or arising out of the condition of, property
which it does not own except to the extent that it has been negligent in the performance of its
maintenance responsibilities.
ARTICLE IV
INSURANCE
4.1. Association.
(a) Required Coverages. The Association shall obtain and continue in effect the following
types of insurance, if reasonably available, or if not reasonably available the most nearly
equivalent coverages as are reasonably available.
(i) Blanket property insurance covering "risks of direct physical loss" on a "special form"
basis (or comparable coverage by whatever name denominated) for all insurable improvements on the
Common Area and on other portions of the Maintenance Property (as described in Section 3.1) to the
extent that it is responsible for maintenance, repair and/or replacement in the event of a casualty. If such
coverage is not generally available at reasonable cost then "broad form" coverage may be substituted.
The Association shall have the authority to and interest in insuring any property for which it has
maintenance or repair responsibility, regardless of ownership. All property insurance policies obtained
by the Association shall have policy limits sufficient to cover the full replacement cost of the insured
improvements before application of deductibles;
(ii)Cominercial general liability insurance on the Maintenance Property, insuring the
Association and its members for damage or injury caused by the negligence of the Association or any
of its employees, agents, or contractors while acting on its behalf;
(iii) Workers compensation insurance and employer's liability insurance, if and to the
extent required by law;
(iv). Directors and officer's liability coverage,
(v) Fidelity insurance covering all Persons responsible for handling Association funds in an
amount determined in the Board's business judgment but not less than an amount equal to one -sixth of
the annual General Assessments on all Units plus reserves on hand. Fidelity insurance policies shall
contain a waiver of all defenses based upon the exclusion of Persons serving without compensation; and
(vi) Such additional insurance as the Board, in the exercise of its business judgment,
determines advisable.
(b) Policy Requirements. The Association shall arrange for an annual review of the
sufficiency of insurance coverage by one or more qualified Persons, at least one of whom must be
familiar with insurable replacement costs in the vicinity of the Properties.
The policies may contain a reasonable deductible and the amount thereof shall not be subtracted
from the face amount of the policy in determining whether the policy limits satisfy the requirements of
Section 4.1(a). In the event of an insured loss, the deductible shall be treated as a Common Expense;
provided if the Board reasonably determines, after notice and an opportunity to be heard in accordance
with Section 2.1, that the loss is the result of the negligence or willful misconduct of one or more
Owners, their guests, invitees, or lessees, then the Association may specifically assess the full amount of
such deductible against such Owner(s) and their Units pursuant to Section 5.5.
(c) Damage and Destruction. Immediately after damage or destruction to all or any part of
the Properties covered by insurance written in the name of the Association, the Association or its duly
authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the
cost of repair or reconstruction. Repair or reconstruction, as used in this paragraph means repairing or
restoring the property to substantially the condition in which it existed prior to the damage, allowing for
changes or improvements necessitated by changes in applicable building codes.
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Damaged improvements on the Common Area shall be repaired or reconstructed unless the
Members entitled to cast at least 75% of the Class "A" votes attributable to the Units which are subject to
assessment for maintenance of such portion of the Common Area (the "Benefited Units"), and the Class
"B" Member, if any, decide within 60 days after the loss not to repair or reconstruct. If either the
insurance proceeds or estimates of the loss, or both, are not available to the Association within such 60-
day period, then the period shall be extended until such funds or information are available. However,
such extension shall not exceed 60 additional days No Mortgagee shall have the right to participate in
the determination of whether the damage or destruction to the Common Area shall be repaired or
reconstructed.
If a decision is made not to restore the damaged improvements, and no alternative improvements
are authorized, the affected property shall be cleared of all debris and ruins and thereafter shall be
maintained by the Association in a neat and attractive, landscaped condition consistent with the
Community -Wide Standard.
Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such
settlement as is necessary and appropriate, shall be retained by the Association and either placed in a
capital improvements account for the benefit of the Benefited Units, or credited against future
assessments due from the Benefited Units This is a covenant for the benefit of Mortgagees and may be
enforced by the Mortgagees of any affected Unit.
If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the
Association may, without a vote of the Owners, levy a Special Assessment against the Benefited Units
to cover the shortfall.
4.2. Other Property. By virtue of taking title to a Unit, each Owner covenants and agrees
with all other Owners and with the Association to carry property insurance for the full replacement cost
of all insurable improvements on his or her Unit, less a reasonable deductible. Each Owner further
covenants and agrees that in the event of damage to or destruction of structures on or comprising his
Unit, the Owner shall proceed promptly to repair or to reconstruct in a mariner consistent with the
original construction or such other plans and specifications as are approved in accordance with Article
VII, such repair or reconstruction to be completed as soon as reasonably possible but in no event later
than 12 months after the event causing such damage or destruction. Alternatively, the Owner shall
promptly clear the Unit of all debris and ruins and maintain the Unit in a neat and attractive, landscaped
condition consistent with the Community -Wide Standard. The Owner shall pay any costs which are not
covered by insurance proceeds.
ARTICLE V
ASSESSMENTS
5.1. Creation of and Obligation for Assessments.
(a) Purposes and Types. There are hereby created, and the Association is hereby
authorized to levy, assessments for expenses incurred or anticipated to be incurred by the Association
in performing its responsibilities and exercising its rights and powers under this Declaration and any
Supplemental Declaration, specifically including but not limited to. expenses of maintaining repairing,
replacing, improving, operating and insuring the Maintenance Property, including amounts due to third
parties who performs such tasks on behalf of the Association and the costs of labor, equipment,
materials, management, supervision and utilities• taxes, if any, imposed on the Association or the
Maintenance Property (as defined in Section 3.1); the cost of insurance and Fidelity bond coverage
obtained pursuant to Article IV; expenses of monitoring and enforcing compliance with the provisions
of this Declaration and the Governing Documents; charges and expenses related to agreements with
internet providers, telecommunications providers, and providers of similar services which may be in
the nature of exclusive bulk service agreements, expenses arising out of any measure undertaken to
enhance the safety of the Owners and occupants of Units and the Properties; out-of-pocket expenses of
the Declarant and the Architectural Review Committee in exercising their responsibilities for
architectural control pursuant to Article VII; and such other expenses as the Board reasonably deems
necessary or desirable in connection with the exercise of its powers and performance of its obligations
under this Declaration.
There shall be three types of assessments. (a) General Assessments as described in Section 5.3; (b)
Special Assessments as described in Section 5.4; and (c) Specific Assessments as described in Section
5 5. Each Owner, by accepting a deed or entering into a recorded contract of sale for any portion of the
Properties; is deemed to covenant and agree to pay these assessments.
(b) Personal Obligation and Lien. All assessments, together with interest (computed from the
due date of such assessment at a rate of 12% per annum or such higher rate as the Board may establish,
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subject to limitations of North Carolina law), reasonable late charges in such amount as the Board may
establish by resolution (subject to the limitations of applicable North Carolina law), costs, and reasonable
attorney's fees, shall be a charge and continuing lien upon each Unit against which the assessment is made
until paid, as more particularly provided in Section 5.6. Each such assessment, together with interest, late
charges, costs, and reasonable attorney's fees, also shall be the personal obligation of the person who was
the Owner of such Unit at the time the assessment arose. Upon a transfer of title to a Unit, the grantee
shall be jointly and severally liable for any assessments and other charges due at the time of conveyance.
However, no first mortgagee who obtains title to a Unit by exercising the remedies provided in its
mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title.
The Association shall, upon request, furnish to any Owner liable for any type of assessment a
certificate in writing signed by an officer of the Association setting forth whether such assessment has
been paid, which certificate shall be binding on the Association as to any amounts stated in such
certificate to be due or paid as of the date of said certificate. The Association may require the advance
payment of a reasonable processing fee for issuance of such certificate.
Assessments shall be paid in such manner and on such dates as the Board may establish, which
may include discounts for early payment or similar time/price differentials. The General Assessment
shall be an annual assessment due and payable in advance on the first day of each fiscal year; provided,
the Board may by resolution provide for payment in two or more installments. If any Owner is
delinquent in paying any assessments or other charges levied on his Unit, the Association may require
any unpaid installments of all outstanding assessments to be paid in full immediately.
No Owner may exempt himself from liability for assessments by non-use of Common Area,
abandonment of his Unit, or any other means. The obligation to pay assessments is a separate and
independent covenant on the part of each Owner. No diminution or abatement of assessments or setoff
shall be claimed or allowed for any alleged failure of the Association to take some action or perform
such function required of it, or for inconvenience or discomfort arising from the making of repairs or
improvements, or from any other action it takes.
5.2. Declarant's Obligation for Assessments. During the Declarant Control Period, Declarant
shall be obligated to pay the difference between the amount of General Assessments levied on all Units
not owned by Declarant subject to assessment and the amount of actual Common Expenses incurred by
the Association during the fiscal year. Upon termination of the Declarant Control Period, Declarant
shall pay any assessments levied on units which it owns pursuant to Sections 53, 5.4, 5.5, and 5.7. The
Association shall have a lien against all Units owned by the Declarant to secure the Declarant's
obligations under this section, which lien shall have the same attributes and shall be enforceable in the
same manner as the Association's lien against each Unit under Section 5.6.
5.3 Computation of General Assessments. At least 30 days before the beginning of each
fiscal year, the Board shall prepare a budget covering the estimated Common Expenses for the coming
year, including any capital contribution to establish a reserve fund in accordance with a reserve budget
separately prepared by the Board The reserve budget shall take into account the number and nature of
replaceable assets within the Common Area the expected life of each asset, and the expected repair or
replacement costs. Further, the Association shall establish a separate reserve budget and reserve fund for
maintenance and operation of the Wastewater System and the Water System to cover expenses beyond
routine operation and maintenance expenses of the Wastewater System and the Water System. The Board
shall set the required capital contribution to the reserve funds in an amount sufficient to permit meeting
the project needs, with respect to both amount and timing, by General Assessments over the term of the
reserve budget. During the Declarant Control Period, the General Assessments may not be increased by
an amount greater than 15% per year. As provided for above in Section 5.2, during the Declarant Control
Period, Declarant shall be obligated to pay the difference between the amount of General Assessments
levied on all units subject to assessment and the amount of actual expenses incurred by the Association
during the fiscal year.
General Assessments shall be fixed at a uniform rate for all units. Such assessment rate shall be
set at a level which is reasonably expected to produce total income for the Association equal to the
total budgeted common expenses, including reserves. In detennining the total funds to be generated
through the levy of General Assessments, the Board in its discretion, may consider other sources of
funds available to the Association, including any surplus from prior years and any assessment income
expected to be generated from any additional Units reasonably anticipated to become subject to partial
or full assessment during the fiscal year.
Within 30 days after adoption of any proposed budget for the Association, the Board shall
provide to all Owners a summary of the budget and a notice of a meeting to consider ratification of the
budget, including a statement that the budget may be ratified without a quorum. The Boaid shall set a
date for a meeting of the Owners to consider ratification of the budget, such meeting to be held not less
than 10 nor more than 60 days after mailing of the summary and notice. There shall be no requirement
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that a quorum be present at the meeting. The budget shall be ratified unless at that meeting a majority of
the Owners rejects the budget. In the event the proposed budget is rejected, the budget last ratified by
the Owners or established by the Board shall be continued until such time as the Owners ratify a
subsequent budget proposed by the Board.
5.4. Special Assessments. In addition to other authorized assessments, the Association may
levy Special Assessments from time to time to cover Common Expenses which were not anticipated in
the current budget or which exceed those budgeted. During the Declarant Control Period unless
otherwise required by G.S. 47F, no Special Assessment shall be valid unless approved by the Board
and by the Declarant. Following termination of the Declarant Control Period, any Special Assessment
levied by the Board shall automatically become valid and effective unless vetoed at a meeting by
Members entitled to cast at least two-thirds of the total Class "A" votes in the Association and by the
Class "B" Member, if any. Special assessments shall be payable in such manner and at such tunes as
the Board may determine, and may be payable in installments extending beyond the fiscal year in
which the Special Assessment is levied. Special Assessments shall be levied equally on all units.
Notwithstanding the foregoing, the Board, in its reasonable discretion, may levy Special Assessments,
in any amount and as reasonably necessary at any time in order to maintain operate, repair or replace
the Wastewater System and the Water System without approval by Members in the event the General
Assessments and any reserves are insufficient for the repair and maintenance of the Wastewater
System and the Water System.
5.5. Specific Assessments. The Association shall have the power to levy Specific
Assessments against a particular Unit or group of Units as follows.
(a) Against a particular Unit to cover the costs, including overhead and administrative
costs, of providing benefits, items, or services to the Unit or occupants thereof upon request of the
Owner pursuant to a menu of special services which Board may from time to time authorize to be
offered to Owners and occupants (which might include, without limitation, landscape maintenance,
pest control, etc.), which assessments may be levied in advance of the provision of the requested
benefit, item or service as a deposit against charges to be incurred by the Owner;
(b) Against a particular Unit to cover costs incurred in bringing the Unit into compliance
with the terms of the Governing Documents, or costs incurred as a consequence of the conduct of the
Owner or occupants of the Unit, their agents, contractors, employees, licensees, invitees, or guests;
provided, the Board shall give the Unit Owner prior written notice and an opportunity for a hearing in
accordance with Chapter 47F of the North Carolina General Statutes, before levying any Specific
Assessment under this subsection (b);
(c) Against all Units subject to the jurisdiction of any condominium or planned unit owners
association to reimburse the Association for costs incurred in bringing any property subject to the
jurisdiction of such condominium or planned unit owners association into compliance with the terms of
the Governing Documents, or upon failure of the condominium or planned unit owners association to
perform its responsibilities under Section 3.3 or comply with any demand of the Association pursuant
to Section 2.1(e); and
(d) Against any group of Units for the costs incurred or anticipated to be incurred by the
Association in.
(i) Maintaining, repairing, replacing, insuring, or operating any Limited Common
Area designed for the benefit of such Units (including contributions to reserves for capital repairs and
replacements related to such Limited Common Areas), or
(ii) Providing any service to such Units which the Association does not provide to all
Units within the Properties, pursuant to the authority granted in any Supplemental Declaration
applicable to such Units or upon request of the Owners of a majority of the Units within the area
requesting such service.
The Board shall prepare a budget for any expenses to be levied as a Specific Assessment pursuant to this
subsection (d) and provide a copy of such budget, together with notice of the Specific Assessment to be
levied thereunder to each owner of a Unit subject to such assessment at least 30 days prior to the due
date thereof. Such budget shall become effective unless vetoed by owners of a majority of the Units
subject to assessment thereunder except that such owners shall no right to veto any expenses relating to
Limited Common Areas or which are authorized by applicable Supplemental Declaration if, in the
opinion of the Board, the budget and its expenditures are necessary to maintain the Community -Wide
Standard.
5.6. Lien for Assessments. The Association shall have a lien against each Unit to secure
payment of delinquent assessments, as well as interest, late charges (subject to the limitations of North
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Carolina law), and costs of collection, including attorney's fees). Such lien shall be superior to all other
liens except (a) the liens of all taxes bonds, assessments, and other levies which by law would be
superior, and (b) the lien or charge of any first mortgage of record (meaning any recorded mortgage
with first priority over other mortgages) made in good faith and for value. Such lien, when delinquent,
may be enforced by suet judgment, and foreclosure in the same manner as mortgages are foreclosed
under North Carolina law.
The Association may bid for the Unit at the foreclosure sale and acquire, hold, lease, mortgage,
and convey the Unit. While a Unit is owned by the Association following foreclosure, no assessment
shall be levied on it and each other Unit shall be charged, in addition to its usual assessment, its pro-
rata share of the assessment that would have been charged such Unit had it not been acquired by the
Association. The Association may sue for unpaid assessments and other charges authorized hereunder
without foreclosing or waiving the liens securing the same.
Except as specifically provided herein, the sale or transfer of any Unit shall not affect the
assessment lien or relieve such Unit from the lien of any subsequent assessments. The sale or transfer
of any Unit pursuant to foreclosure of the first mortgage shall extinguish the lien as to any assessments
or installments thereof due prior to such sale or transfer. A mortgagee or other purchaser of a Unit who
obtains title pursuant to foreclosure of the mortgage shall not be personally liable for assessments on
such Unit due prior to such acquisition of title. Such unpaid assessment shall be deemed to be Common
Expenses collectible from Owners of all Units subject to assessment under Section 5.7 including such
acquirer, its successois and assigns.
5.7. Date of Commencement of Assessments. With respect to all owners other than the
Declarant, the obligation to pay assessments shall commence as to each Unit on:
(a) The month in which the Unit is transferred to an owner other than Declarant, or
(b) The month in which the Association first determines a budget and levies assessments
pursuant to this Article, whichever is later. The first General Assessment levied on each Unit shall be
adjusted according to the number of months remaining in the fiscal year at the time assessments
commence on a Unit. With respect to Declarant, during the Declarant Control Period, Declarant shall not
be obligated to pay assessments but rather shall be obligated to pay the difference between the amount of
General Assessments levied on all Units not owned by Declarant subject to assessment and the amount
of actual Common Expenses incurred by the Association during the fiscal year. Upon termination of the
Declarant Control Period, Declarant s obligation to pay assessments shall commence as to each Unit
owned by Declarant on the first day of the month following the issuance of a Certificate of Occupancy
for a dwelling for said Unit.
(c) Commencement of Assessments shall be prorated for the month or quarter, depending
on the frequency of the assessment, in which the assessment commences as to a Unit.
5.8. Failure to Assess. Failure on the part of the Association to fix assessment amounts or
rates or to deliver or mail each Owner an assessment notice shall not be deemed a waiver, modification,
or a release of any Owner from the obligation to pay assessments. In such event, each Owner shall
continue to pay assessments on the same basis as during the last year for which an assessment was made
if any, until new assessments are levied, at which time the Association may retroactively assess any short
falls.
5.9. Exempt Property. The following property shall be exempt from payment of assessments.
(a) All Common Areas and such portions of the property owned by Developer as are
included in the Maintenance Property pursuant to Section 3.1; and
(b) Any property dedicated to and accepted by any governmental authority or public utility,
or maintained by a condominium or planned unit owner's association for the benefit of the Unit subject
to its jurisdiction.
5.6 Budget Deficits During Declarant Control Period.
During the Declarant Control Period, Declarant may (but shall not be required to):
(a) advance funds to the Association sufficient to satisfy the deficit, if any, between
the Association's actual operating expenses and the sum of the Regular and Special Assessments
collected by the Association in any Fiscal Year. Such advances shall, upon request of Declarant, be
evidenced by promissory notes from the Association in favor of Declarant. Declarants failure to obtain a
promissory note shall not invalidate the debt.
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(b) cause the Association to borrow any amount from a third party at the then
prevailing rates for such a loan in the local area of the Property. Declarant, in its sole discretion, may
guarantee repayment of such loan, if required by the lending institution, but no Mortgage secured by the
Common Areas or any of the improvements maintained by the Association shall be given in connection
with such loan.
(c) acquire property for, or provide services to, the Association or the Common
Areas. Declarant shall designate the value of the property or the services provided, and such amounts, at
Declarant's request, shall be evidenced by a promissory note. Pailure to obtain a promissory note shall not
invalidate the obligation referred to in this Section.
ARTICLE VI
ANNEXATION OF PROPERTY / EXERCISE OF SPECIAL DECLARANT RIGHTS
6.1. Annexation Without Approval of Ownership. Until all property described on Exhibit B
has been submitted to the provisions of this Declaration, or 25 years after the recording of this
Declaration in the Watauga County Public Registry, whichever is earlier, Declarant may from time to
time, but shall not be obligated to, submit to the provisions of this Declaration (i.e., annex) all or any
portion of the rehl property described in Exhibit B. The Declarant may transfer or assign this right to
annex property, provided that the transferee or assignee is the Owner of at least a portion of the real
property described in Exhibits A or B and that such transfer is memorialized in a written recorded
instrument executed by the Declarant.
Such annexation shall be accomplished by filing a Supplemental Declaration in the Watauga
County Public Registry describing the property being annexed and designating it as part of the
Properties. Such Supplemental Declaration shall not require the consent of Owners, but shall require the
consent of the Owner of the property to be annexed, if other than the Declarant. Any such annexation
shall be effective upon the filing for record of such Supplemental Declaration unless otherwise provided
therein.
NOTHING IN THIS DECLARATION SHALL BE CONSTRUED TO REQUIRE THE
DECLARANT OR ANY SUCCESSOR TO ANNEX OR DEVELOP ANY OF THE PROPERTY
DESCRIBED IN EXHIBIT B IN ANY MANNER WHATSOEVER THE DECLARANT MAKES
NO REPRESENTATION THAT THE PROPERTY DESCRIBED IN EXHIBIT B WILL EVER
BECOME A PART OF THE PROPER HES OR SUBJECT TO THE JURISDICTION OF THE
ASSOCIATION OR THAT IT WILL BE SUBJECTED TO THE SAME OR SIMILAR
COVENANTS, EASEMENTS AND RESTRIC PIONS AS THE PROPERTIES.
6.2. Annexation With Approval of Ownership. The Association may annex any real property
to the provisions of this Declaration upon approval of Owners entitled to cast a majority of the total Class
"A' votes in the Association, the consent of the Owner of such property, and the consent of the Declarant
so long as the Declarant owns property subject to this Declaration or which may become subject to this
Declaration in accordance with Section 6.1. Such annexation shall be accomplished by filing in the
Watauga County Public Registry a Supplemental Declaration describing the property being annexed and
designating it as part of the Properties Any such Supplemental Declaration shall be signed by an officer
of the Association, and by the owner of the annexed property and by the Declarant, if a Declarant's
consent is required Any such annexation shall be effective upon filing unless otherwise provided therein.
6.3. Additional Covenants and Easements. The Declarant may subject any portion of the
Properties to additional covenants and easements by filing a Supplemental Declaration in the Watauga
County Public Registry, concurrent with or after the annexation of the subject property, setting forth
such additional covenants and easements. Any such Supplemental Declaration shall require the written
consent of the owner of the subject property, if other than the Declarant. Any such Supplemental
Declaration may supplement create exceptions to or otherwise modify the terms of this Declaration as
it applies to the subject property in order to reflect the different character and intended use of such
property.
6.4. Amendment. This Article shall not be amended without the prior consent of the
Declarant so long as the Declarant owns any property described in Exhibits A or B.
6.5. Exercise of Special Declarant Rights. The exercise of the Special Declarant Rights shall
be accomplished by the filing of amendments to this Declaration.
ARTICLE VII
ARCHITECTURAL STANDARDS
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7.1. General. No structure shall be placed, erected or installed upon any portion of the
Properties and no improvements (including staking clearing, excavation, grading, and other site work,
exterior alteration of existing improvements, and plantings or removal of landscaping materials) (such
activities being referred to in this Article as "Work") shall take place within the Properties except in
compliance with this Article and the Design Guidelines.
This Article shall not apply to the activities of the Declarant, its affiliates or subcontractors,
whether such activities are engaged in on property of the Declarant or on property of an Owner, nor
shall it apply to the activities of the Association during the Declarant Control Period.
This Article may not be amended without the written consent of the Declarant, so long as the
Declarant owns any land subject to this Declaration or subject to annexation to this Declaration.
7.2. Jurisdiction.
(a) Declarant Review. Each Owner, by accepting a deed or other instrument conveying any
interest in any portion of the Properties, acknowledges that, as the Developer of the Properties and as the
owner of significant portions of the Properties and other real estate within the vicinity of the Properties,
Declarant has a substantial interest in ensuring that the improvements within the Properties are consistent
with the atmosphere which the Declarant is striving to create at The Bluffs at Blowing Rock and do not
impair the Declarant's ability to market, sell, or lease its property. Therefore, each Owner agrees that no
Work shall be commenced on such Owner's Unit unless and until the Declarant has given its prior
written approval for such Work, which approval may be granted or withheld in Declarant's sole
discretion.
In reviewing and acting upon any request for approval, Declarant shall be acting in its own interest
and shall owe no duty to any other Person. The rights reserved to Declarant under this Article shall
continue so long as Declarant owns any portion of the Properties or any real property within a two-mile
radius of the Properties unless earlier terminated in a written instrument executed by Declarant and
recorded in the Watauga County Public Registry.
(b) Architectural Review Committee. The Declarant may from time to time, but shall not be
obligated to, delegate all or a portion of its reserved rights under this Article to an architectural review
committee appointed by the Association (the "ARC"), subject to (i) the right of Declarant to revoke such
delegation at any time and reassume jurisdiction over the matters previously delegated and (ii) the right
of Declarant to veto any decision of the ARC which Declarant determines, in its sole discretion, to be
inappropriate or inadvisable for any reason. So long as the Declarant has any rights under this Article,
the jurisdiction of the ARC shall be limited to such matters as are specifically delegated to it by the
Declarant.
Upon expiration or termination of the Declarant's rights under this Article, the ARC shall assume
jurisdiction over architectural matters and shall be entitled to exercise all powers previously reserved to
the Declarant under this Article.
The ARC, if and when appointed, shall consist of at least three, but not more than seven, persons
who shall serve and may be removed and replaced in the Board's discretion. The members of the ARC
need not be Owners or residents of the Properties, and may, but need not, include architects, engineers
or similar professionals. The Association niay compensate the members of the ARC for their service,
such compensation, if any to be in such amount as the Board may reasonably determine and to be a
Common Expense.
The Declarant or the ARC may establish and charge reasonable fees for review of applications
hereunder and may require such fees to be paid in full prior to review of any application. Such fees may
include fees charged by any architects, engineers or other professionals which the Declarant may retain
to assist in the review of any application. Such fees may be calculated as a percentage of the total cost to
the Owner of construction of the Improvements which are the subject of such application or may be
calculated on any other reasonable basis.
7.3. Guidelines and Procedures.
(a) Design Guidelines. The Declarant shall prepare initial Design Guidelines which contain
general provisions applicable to all of the Properties as well as specific provisions which vary according
to land use and from one parcel to another depending upon the location unique characteristics and
intended use of the parcel. The Design Guidelines are intended to provide guidance to Owners and
builders regarding matters of particular concern to the Declarant in considering applications for
architectural approval. The Design Guidelines are not the exclusive basis for decisions hereunder and
compliance with the Design Guidelines shall not guarantee approval of any application.
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The Declarant shall have the right to amend the Design Guidelines from time to time in its sole
discretion. The ARC, if appointed, may propose amendments to the Design Guidelines; however, no
amendment proposed by the ARC shall be effective without prior notice to and the written approval of
Declarant so long as the Declarant has any rights under this Article. Amendments to the Design
Guidelines shall not apply to require modifications to or removal of structures previously approved,
except that if construction of the approved structure has not yet commenced, the Declarant may require
modifications to the plans and specifications previously approved if the Declarant agrees to pay all
reasonable costs incuned by the Owner in modifying such plans and specifications. The Declarant is
expressly authorized to amend the Design Guidelines to remove requirements previously imposed or
otherwise to make the Design Guidelines more or less restrictive in whole or in part; provided, no
amendment shall be inconsistent with the overall general scheme of development, recognizing that such
scheme of development contemplates a range of housing types and sizes being available in different
areas of the community.
The Declarant or the ARC shall make copies of the Design Guidelines available to Owners,
builders and Declarants who seek to engage in development or construction within the Properties. In
the Declarant's discretion, such Design Guidelines may be recorded in the Watauga County Public
Registry, in which event the recorded version as it may be amended from time to time, shall control in
the event of any dispute as to which version of the Design Guidelines was in effect at any particular
time.
(b) Procedures.
(i) Prior to commencing any Work within the scope of Section 7.1., the Owner of the Unit
on which the Work is proposed shall (A) meet (in person or by telephone) with a representative of the
Declarant, its agent, or the ARC, as appropriate (the entity having jurisdiction at any particular time is
referred to in this Article as the "Reviewer") to discuss the review process and the Design Guidelines,
and to address any questions and (B) submit such application(s) and obtain such approval(s) as are
required by the Design Guidelines The review process for new construction is a three -step process. (1)
a conceptual review, (2) a schematic design review, and (3) final review of construction drawings and
specifications. Each application shall include such plans and specifications ("Plans") as required by the
Design Guidelines and as applicable. The Reviewer may require the submission of such additional
information as it deems necessary to consider any application.
(ii) In reviewing each application, the Reviewer 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 surrounding structures and plant life, compliance with the general intent of the Design
Guidelines, and architectural merit. Decisions may be based on purely aesthetic considerations. Each
Owner further acknowledges that determinations as to such matters are purely subjective and opinions
may vary as to the desirability and/or attractiveness of particular improvements.
(iii) Within 21 days after receipt of conceptual plans for new construction or an
application for modifications to existing structures the Reviewer will advise the party submitting the
same in writing, at an address specified by such party at the time of submission, of (A) the approval of
plans, or (B) the disapproval of such Plans, specifying the segments or features of the Plans which are
objectionable. The Reviewer may, in its discretion, make suggestions for the curing of such objections.
In the event the Reviewer fails to advise the submitting party by written notice within the time set
forth above of either the approval or disapproval of the Plans, approval shall be deemed to have been
given, subject to the right of the Declarant to veto approvals by the ARC as set forth in subsection (vi)
below. However, no approval, whether expressly granted or deemed granted pursuant to the foregoing,
shall be inconsistent with the Design Guidelines unless a variance has been granted in writing pursuant
to Section 7.5 Notice shall be deemed to have been given at the time the envelope containing such
notice, properly addressed and postage prepaid, is deposited with the U S. Postal Service, registered
or certified mail, return receipt requested. Personal delivery of such written notice, shall, however, be
sufficient and shall be deemed to have been given at the time of delivery.
(iv) Upon receipt of conceptual design approval, the Owner may proceed with
schematic design review and final review of construction drawings and specifications in accordance
with the procedures set forth in the Design Guidelines. Within 30 days after receipt of an application
for schematic design review or final review, the Reviewer shall advise the applicant of its approval or
disapproval, or approval shall be deemed to have been given subject to the right of the Declarant to
veto approvals by the. ARC as set forth in subsection (v) below. IIowever no approval, whether
expressly granted or deemed granted pursuant to the foregoing, shall be inconsistent with the Design
Guidelines unless a variance has been granted in writing pursuant to Section 7.5. Notices regarding
approval or disapproval hereunder shall be governed by the provisions relating to notice set forth
above.
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(v) Within three business days after the ARC has approved any application relating to
proposed Work within the scope of matters delegated to the ARC by Declarant, the ARC shall give
written notice to the Declarant of such action, together with such other information as the Declarant may
require, and shall provide a copy of such notice to the applicant. In the event that any application is
deemed approved (subject to the Declarant's veto power hereunder) pursuant to this Section 7.3 (b), the
applicant shall give the Declarant written notice, together with a copy of the application and any
additional information submitted to the ARC. The Declarant shall have 10 days after receipt of either
such notice to veto any such action, in its sole discretion, by written notice to the ARC and the
applicant.
(vi) If construction does not commence on any Work for which final approval has been
granted within 12 months of such final approval, such approval shall be deemed withdrawn, and it
shall be necessary for the Owner to re -submit the Plans for reconsideration prior to commencing such
Work. All Work shall be completed within two years of' commencement or such other period as may
be specified in the notice of approval, unless completion is delayed due to causes beyond the
reasonable control of the Owner as determined in the reasonable discretion of the Reviewer. The
inability of the Owner to obtain financing shall not constitute a cause beyond the Owner's reasonable
control. The Reviewer may, as a condition of approving any application hereunder, require the
applicant to provide reasonable evidence that the applicant has the financial means to complete all of
the work for which the approval is granted within the time required by this subsection.
7.4. No Waiver of Future Approvals. Each Owner acknowledges that the persons reviewing
applications under this Article will change from time to time and that opinions on aesthetic matters, as
well as interpretation and application of the Design Guidelines, may vary accordingly In addition,
each Owner acknowledges that it may not always be possible to identify objectionable features of
proposed Work until the Work is completed, in which case it may be too late to require changes to the
improvements involved, but the Reviewer may refuse to approve similar proposals in the future.
Approval of proposals, plans and specifications, or drawings for any Work done or proposed or in
connection with any matter requiring approval, shall not be deemed a waiver of the right to withhold
approval as to any similar proposals, plans and specifications, drawings or other matters whatever
subsequently or additionally submitted for approval.
7.5. Variances. The Declarant may, but shall not be required to, authorize variances from
compliance with any of the provisions of the Design Guidelines when circumstances such as
topography, natural obstructions, hardship, or aesthetic or environmental considerations require, or
when architectural merit warrants such variance, as the Declarant may determine in its sole discretion.
Such variances shall be granted only when, in the Declarant's judgment, unique circumstances exist, and
no Owner shall have any right to demand or obtain a variance. No variance shall (a) be effective unless
in writing, (b) be contrary to this Declaration, or (c) estop the Declarant or the ARC from denying a
variance in other circumstances.
7.6. Tree Removal. No Owner shall remove or trim any trees from any portion of the
Properties without the prior wiitten consent of Declarant, and following the Declarant Control Period,
approval of the Board, and provided that the Owner completes said tree trimming or removal in
accordance with accepted forestry piactices approved by the Declarant or the Board as the case inay be.
7.7. Limitation of Liability. The standards and procedures established by this Article are
intended to provide a mechanism for maintaining and enhancing the overall aesthetics of the Properties
but shall not grate any duty to any Person. Neither the Declarant nor the ARC shall bear any
responsibility for ensuring the structural integrity or soundness of approved construction or
modifications, nor for ensuring compliance with building codes and other governmental requirements,
nor for ensuring that all structures and improvements constructed within the Properties are of comparable
quality, value, or size, or of similar design. Neither the Declarant, its designees hereunder, the ARC, nor
any member of the ARC shall be held liable for soil conditions, drainage problems or other general site
work, not for defects tn any plans or specifications submitted, revised or approved hereunder, nor for any
structural or other defects in work done according to approved plans, not for any injury, damages, or loss
arising out of the manner, design or quality of approved construction on or modifications to any Unit.
7.8. Enforcement. Any Work performed in violation of this Article or in a manner which is
materially inconsistent with the approved Plans shall be deemed to be nonconforming. Upon written
request from the Declarant or the ARC, Owners shall, at their own cost and expense, remove any
nonconforming structure or improvement and restore the property to substantially the same condition as
existed prior to the nonconforming Work. Should an Owner fail to remove and restore as required, the
Declarant the ARC or their designees shall have the right to enter the property, remove the violation
and restore the property to substantially the same condition as previously existed and any such action
shall not be deemed a trespass. Upon demand, the Owner shall reimburse all costs incurred by any of
the foregoing in exercising its rights under this Section. The Association may assess any costs incurred
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by the ARC in taking enforcement action under this Section, together with interest at the maximum rate
then allowed by law, against the benefitted Unit as a Specific Assessment
In addition to the foregoing, the Association and the Declarant shall have the authority and
standing to pursue all legal and equitable remedies available to enforce the provisions of this Article
and the decisions of the reviewing entities under this Article.
ARTICLE VIII
USE RESTRICTIONS AND RULES
8.1 Plan of Development: Applicability; Effect. This Declaration establishes a general plan
of development for the Properties in order to enhance the natural beauty and vitality of the Properties,
and to protect Owners against improper use of surrounding Properties. The Properties shall be used
only for residential, recreational, and related purposes as may be described in this Declaration, or its
amendments, or subsequently recorded Supplemental Declarations. Provided, that the Declarant
recognizes the need to be able to respond to changes and circumstances, conditions, needs, and desires
within the Properties and to address issues which may not be foreseen at the time of recording of this
Declaration, The Design Guidelines promulgated pursuant to Article VII and the Use Restrictions and
Rules promulgated pursuant to this Article are established as mechanisms by which to respond to such
matters. The Design Guidelines, the Use Restrictions and Rules, and the other provisions of this
Declaration all establish affirmative and negative covenants, easements, and restrictions on the land
subject to this Declaration.
All provisions of this Declaration and any Use Restrictions and Rules shall apply to all Owners,
occupants, tenants, guests, and invitees of any Unit and any lease of a Unit shall provide that the lessee
and all occupants of the leased Unit shall be bound hereby.
8.2. Authority to Promulgate Use Restrictions and Rules. Use Restrictions and Rules
applicable to all of the Properties may be adopted by the Board. Such Use Restrictions and Rules may
but shall not be required to be recorded in the Watauga County Register of Deeds Office. Subject to the
terms of this Article, such Use Restrictions and Rules may be modified in whole or in part, repealed or
expanded as follows.
(a) The Board may adopt rules which modify, cancel, limit, create exceptions to, or expand the
Use Restrictions and Rules. The Board shall send notice by mail to all Owners concerning any such
proposed action at least 30 days prior to the proposed effective date. Such action shall become effective
on the proposed effective date unless prior to such date Owners holding at least 67% of the votes of the
Association or the Declarant veto the proposed action by sending written notice of their objection to the
Board.
(b) The Members may adopt rules which modify, cancel, limit, create exceptions to, or expand
the Use Restrictions and Rules previously adopted. Any such rule shall be adopted upon the written
approval of Owners holding at least 67% of' the votes of the Association and, so long as it owns any
property described on Exhibits A or B, the consent of the Declarant. Notice thereof shall be sent to all
Owners at least 30 days prior to the effective date.
(c) The Association shall provide, without cost, a copy of the Use Restrictions and Rules then
in effect to any requesting Owner or Mortgagee.
(d) Nothing in this Article shall authorize the Board or the Members to modify, repeal or
expand the Design Guidelines. In the event of any inconsistency between the Design Guidelines and
the Use Restrictions and Rules, the Design Guidelines shall control.
8.3 Owner's Acknowledgment. All Owners and occupants of Units are given notice that use
of their Units is limited by the Use Restrictions and Rules as they may be amended, expanded and
otherwise modified hereunder Each owner by acceptance of a deed or entering into and recording a
contract of sale, acknowledges and agrees that the use and enjoyment and marketability of his or her Unit
can be affected and that the Use Restrictions and Rules may change from time to time.
8.4 Rights of Owners. Except as may be specifically set forth in this Declaration (either
initially or by amendment), neither the Board nor the Members may adopt any rule in violation of the
following provisions.
(a) Equal Treatment. Similarly situated Owners shall be treated similarly.
(b) Household Composition. No rule shall Interfere with the freedom of occupants of Units to
determine the composition of their households, except that the Association shall have the power to require
that all occupants of a Unit be part of a single housekeeping unit and to limit the total number of
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occupants permitted in each Unit on the basis of the size and facilities of the Unit and its fair use of the
Common Area.
(c) Activities within Dwellings. No rule shall interfere with the activities carried on within
the confines of dwellings, except that rules may prohibit or restrict.
(i)
permits rentals;
activities not normally associated with property restricted to residential use which
(ii) activities that create monetary costs for the Association or other Owners;
(iii) activities that create a danger to the health or safety of occupants of other Units,
generate excessive noise or traffic, create unsightly conditions visible outside the dwelling, or create an
unreasonable source of annoyance.
(d) Allocation of Burdens and Benefits. No rule shall alter the allocation of financial burdens
among the various Units or rights to use the Common Area to the detriment of any Owner over that
Owner's objection expressed in writing to the Association. Nothing in this provision shall prevent the
Association from changing the Common Area available, from adopting generally applicable rules for use
of Common Area, or from denying use privileges to those who abuse the Common Area violate rules of
this Declaration, or fail to pay assessments. This provision does not affect the right to increase the amount
of assessments as provided in Article V.
(e) Alienation. The lease or transfer of any Unit may be limited in a manner consistent with
applicable law, however no rule shall prohibit leasing or transfer of any Unit. The Association on the
lease or transfer of any Unit may not charge a fee greater than an amount reasonably based on the costs to
the Association of administering that lease or transfer. Nothing contained herein shall preclude another
association such as a condominium association or a planned unit owner's association from placing
additional restrictions on properties within said association relating to leasing practices.
(f) Abridging Existing Rights. If any rule would otherwise require Owners or occupants of
Units to dispose of personal property which they maintained in or on the Unit prior to the effective date
of such rule, or to vacate a Unit in which they resided prior to the effective date of such rule, and such
property was maintained or such occupancy was in compliance with this Declaration and all rules
previously in force, such rule shall not apply to require such Owners or occupants to dispose of such
property or vacate the Unit without their consent. Nothing in this paragraph shall create an exemption
from any rule which was in effect at the time such Owners or occupants acquired their interest in the
Unit.
(g) Restriction on Commercial Uses. The property described in Exhibit A, consisting of 64.28
acres, shall be used only for residential, recreational and related purposes as may be described in this
Declaration, or its amendments, or subsequently recorded Supplemental Declarations. The Units also
may be used for home office purposes (not involving visits by customers or other third parties) by the
residents of such Units. Notwithstanding the foregoing, Declarant may maintain any Unit owned or
leased by Declarant as a sales office or model Unit. (For purposes of this Declaration, "single family"
shall mean and refer to use and occupancy by a single household unit or use and occupancy by no more
than four (4) individuals that do not comprise a single household unit, except in a one -bedroom unit, in
which case it may be occupied by no more than two (2) individuals that do not comprise a single
household unit.) Declarant reserves the right to annex other properties in accordance with Article VI of
this Declaration and exercise Special Declarant Rights and permit commercial uses within said
properties. Provided, that no properties upon which commercial uses are permitted shall be accessed
over and across the road system for the parcel of land described in Exhibit A.
(h) Reasonable Rights to Develop. No rule shall interfere with the Declarant's right to develop,
market and sell the Properties.
The limitations in this Section 8.4 shall apply to rules only; they shall not apply to amendments
to this Declaration adopted in accordance with Section 12.2.
8.5. Nuisance. No obnoxious, offensive or unlawful activity shall be conducted within any
Unit or on or about the Common Elements, nor shall anything be done thereon or therein which may be
or which may become an annoyance or nuisance to the other Owners, or endanger the health and safety
of any Owner. Nothing shall be done or kept in any Unit or in the Common Elements that will result in
the termination of, or an increase in the premium for, the policy of property insurance for the Property
maintained by the Master Association or by the Association.
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8.6 Leases of Units and Sales of Units. Units may be leased for lease terms of no less than
six (6) months. Any lease of a Unit shall be in writing and shall provide, among other things: (a) that the
terms of the lease shall be subject in all respects to the Governing Documents; (b) that any failure by the
lessee to comply with all of the terms of such Governing Documents shall constitute a default under the
lease; and (c) for the payment by the Owner or the tenant to the Association of a security deposit in the
amount of thirty percent (30%) of the monthly rent payable under the Lease, to be held by the Association
in accordance with the North Carolina Tenant Security Deposit Act, and applied against the cost of
repairing any damage to the Common Elements caused by the negligence or intentional misconduct of
such tenant or his or her agents, invitees or family members. In addition, promptly following the
execution of any lease for a Unit, the owner of such Unit shall forward a conformed copy of the lease to
the Board of Directors of the Association.
8.7 No Timeshares. No interest in any Unit may be subjected to a time share program, as
that term is defined in N.C.G.S. § 93A-41 (10).
8.8 Animals. No animals, livestock or poultry of any kind shall be kept or maintained in the
Development except that small, common, domestic household pets and service dogs (seeing eye dogs,
etc.) may be kept or maintained in each Unit, provided they are not kept or maintained for commercial
purposes and provided that no Owner may have more than two (2) such pets at any one time (excluding
fish). In addition, other animals determined in the Board of Director's sole discretion to be dangerous or
incompatible with the residential character of the Development shall not be brought onto or kept on the
Property at any time. No pet shall be permitted upon the Common Elements unless carried or leashed by
a person that can control the pet. All pets shall be controlled so as not to create a nuisance or
unreasonable disturbance (including loud and excessive barking) in the Building. Each Owner shall clean
up immediately after his pet. All pets shall be registered licensed and inoculated as required by law.
Each Owner shall hold the Association harmless from any claim resulting from any action of his pet and
shall repair at his expense any damage caused by his pet. If any Owner violates these rules more than
twice in any twelve (12) month period, then in addition to any fines provided in the Bylaws, the
Association shall have the right to require the Owner to remove the pet permanently from the Property
upon not less than ten (10) days written notice. The Board may in its discretion, pass additional
reasonable rules and regulations with regard to animals on the Property, and may make exceptions to any
rules, including the rules in this Section 7.9, on a case by case basis.
8.9 Signs No signs (excluding political signs) or other advertising devices (including but not
limited to, For Sale or For Rent signs) shall be displayed on or about the exterior of any Unit, in the
window of any Unit, of in the Common Elements except for marquis identification signage on the ground
floor of the Building. The display of political signs is not permitted. Further, no pole or other device for
the display of decorative flags shall be erected or displayed on or about the exterior of any Unit or in the
Common Elements unless approved in advance by the Association To the extent permitted by law, no
signs or flags shall be placed on any balconies or windows unless otherwise approved by the Association.
In the event that the Association approves installation of a pole or device for the display of decorative
flaps, any such flags displayed by an Owner shall be in good taste and shall not contain lewd or offensive
displays or material. The display of the flag of United States or North Carolina is permitted as long as its
size is no greater than 4 feet by 6 feet and it is displayed in accordance with or in a manner consistent
with the patriotic customs set forth in 4 U.S.C. § 5-10, as amended. No flag (North Carolina or United
States included) of a size greater than 4 feet by 6 feet shall be displayed or erected on or about the exterior
of any Unit or Common Element.
Notwithstanding the foregoing, temporary holiday or party decorations may be displayed on entry
doors to Units.
8.10 Rules and Regulations. In addition to the use restrictions set forth in this Declaration,
reasonable rules and regulations governing the use of the Property may be made and amended from time
to time by the Association, in accordance with the provisions of the Bylaws and this Section 7.16. Copies
of such regulations and amendments thereto shall be posted prominently prior to their effective date, and
shall be furnished by the Association to all Owners upon request. Notwithstanding the foregoing, the
Association shall not have the right to adopt a rule or regulation that materially restricts a then -existing
lawful use being conducted in a Unit without the prior written consent of the Owner of that Unit or that
otherwise materially increases the obligations or materially decreases the rights of any Owner set forth in
this Declaration or Bylaws, or that otherwise conflicts with the terms of this Declaration, the Bylaws, or
the Articles. Subject to the terms of this Section 8 10, such Rules and Regulations may be modified in
whole or in part, repealed or expanded as follows.
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(a) The Board may adopt rules which modify, cancel, limit, create exceptions to, or expand
the Use Restrictions and Rules. The Board shall send notice by mail to all Owners concerning any such
proposed action at least 30 days prior to the proposed effective date. Such action shall become effective
on the proposed effective date unless prior to such date Owners holding at least 67% of the votes of the
Association or the Declarant veto the proposed action by sending written notice of their objection to the
Board.
(b) The Members may adopt rules which modify, cancel, limit create exceptions to, or
expand the Use Restrictions and Rules previously adopted Any such rule shall be adopted upon the
written approval of Owners holding at least 67% of the votes of the Association and during the Declarant
Control Period, the consent of the Declarant. Notice thereof shall be sent to all Owners at least 30 days
prior to the effective date.
(c) The Association shall provide, without cost, a copy of the Use Restrictions and Rules
then in effect to any requesting Owner or Mortgagee.
8.11 Satellite Dishes and Antennas. No satellite dish, antenna or similar equipment ("Rooftop
Equipment') may be placed on the exterior of any Unit, on any Limited Common Element, or in the
Common Elements without the prior written approval of the Board, which may be withheld or
conditioned in its sole discretion.
ARTICLE IX
EASEMENTS
Easements for Use of Common Area. Every Owner shall have a right and nonexclusive
easement of use, access, and enjoyment in and to the Common Area subject to.
(a) This Declaration and any other covenants and easements applicable to such property;
(b)
Any easements, restrictions or limitations contained or referenced in the instrument
creating the Association's interest in such property;
(c) The Use Restrictions and Rules, as they may be modified pursuant to Article VIII, which
may include rules regulating guest use of the Common Area;
(d) The right of the Board to suspend the right of an Owner to use any recreational facilities
within the Common Area (i) for any period during which any charge against such Owner's Unit
remains delinquent, and (ii) for a period not to exceed 30 days for a single violation or for a longer
period in the case of any continuing violation, of the Governing Documents after notice and a hearing
pursuant to Section 2.1 (d);
(e) The right of the Association to encumber, transfer or dedicate all or any part of the
Common Area pursuant to Section 2.1 (b);
(f) The right of the Declarant and the Association to restrict use of certain facilities within the
Common Areas to Owners of Units in particular areas of the Properties who shall be responsible for
paying the costs of operating the same, and to allocate or reallocate rights to use the various
recreational facilities within the Common Area so as to avoid overutilization of some facilities and
underutilization of others so long as no Owner of a Unit is denied access to amenities of the same type
as it was entitled to access prior to such reallocation.
(g) The right of the Declarant and the Association to grant easements over and otherwise permit
use of any recreational facilities situated on the Common Areas by persons other than Owners, their
families, lessees and guests, upon such terms and conditions as the Declarant or the Association deems
appropriate; provided, any permanent easement benefitting property outside of the Properties shall
contain arrangements for the users to share in a portion of the costs of maintaining and operating the
facilities which are subject to such easement;
(h) The right of the Association to limit the number of guests or visitors within the Properties, to
require authorized guests or visitors to wear or cany guest passes or similar identification or otherwise
to restrict guest or visitor access to the Properties at certain times preceding and during special events,
upon prior notice to the Owners; and
(i) The right of the Association to mortgage, pledge, or hypothecate any or all of its real or
personal property as security for money borrowed or debts incurred•
(1) The right of the Association to take necessary action to cause the existing and future
wastewater of the Properties to be accepted and discharged into a wastewater collection system and
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wastewater treatment and/or disposal facility provided by any city, town, village, county, water and
sewer authority or other unit of government which becomes available to serve the Properties. In such
event the Association reserves the right to convey or transfer as much of the Wastewater System and
such necessary easements as the governmental unit may require as a condition of accepting the
wastewater from the Properties.
(k) The right of the Association to take necessary action to cause the Properties to be accepted
and served by any water system provided by any city town, village, county, water and sewer authority
or other unit of government which becomes available to serve the Properties. In such event the
Association reserves the right to convey or transfer as much of the Water System and such necessary
easements as the governmental unit may require as a condition of providing water to the Properties
Any Owner may extend his or her right of use and enjoyment to the occupants of his Unit and
guests, subject to reasonable regulation by the Association. An Owner who leases his or her Unit shall
be deemed to have assigned all such rights to the lessee of such Unit with the exception of amenities
designated as Owner Only, and subject to the terms of this Declaration and the Use Restrictions and
Rules.
9.2. Easement of Encroachment. There shall be reciprocal appurtenant easements of
encroachment, and for maintenance and use of any permitted encroachment, between each Unit and any
adjacent Common Area and between adjacent Units due to the unintentional placement or settling or
shifting of the improvements constructed reconstructed, or altered thereon (in accordance with the
terms of these restrictions) to a distance of not more than ten feet, as measured from any point on the
common boundary along a line perpendicular to such boundary. However in no event shall an easement
for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part
of, or with the knowledge and consent of, the Person claiming the benefit of such easement.
9.3 Easements for Utilities. Etc.
(a) There are hereby reserved to the Declarant, so long as the Declarant owns any property
described on Exhibits A or B of this Declaration, the Association, and the designees of each (which
may include, without limitation, any governmental or quasigovernmental entity and any utility
company) perpetual non-exclusive easements upon, across, over, and under all of the Properties (but not
through a structure) to the extent reasonably necessary for the purpose of monitoring, replacing,
repairing, maintaining and operating cable television systems, master television antenna systems, and
other devices for sending or receiving data and/or other electronic signals security and similar systems;
roads, walkways, pathways and trails; wetlands and drainage systems; street lights and signage; and all
utilities including but not limited to water, sewer, telephone gas and electricity, and utility meters; and
for the purpose of installing any of the foregoing on the Properties, or within easements designated for
such purposes on recorded plats.
(b) Declarant specifically grants to the local water supplier, electric company, and natural gas
supplier easements across the Properties for ingress egress installation, reading replacing, repairing,
and maintaining utility lines, meters and boxes, as applicable, subject to the Declarants approval as to
location of the easement and subject to any requirements imposed by the Declarant as a condition of
the exercise of such easement for purposes of installation, repair or replacement.
(c) There is hereby reserved to the Declarant, so long as the Declarant owns any property
described on Exhibits A or B of this Declaration, the non-exclusive right and power to grant such
specific easements as may be necessary, in the sole discretion of Declarant, in connection with the
orderly development of any property described on Exhibits A or B.
(d) Any damage to a Unit resulting from the exercise of the easements described in
subsections (a), (b) or (c) of this Section shall promptly be repaired by and at the expense of, the
Person exercising the easement. The exercise of these easements shall not extend to permitting entry
into the structures on any Unit, nor shall it unreasonably interfere with the use of any unit and, except
in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or
occupant.
(e) Consistent with Section 2.2 (f) of this Declaration, the Association is and shall be
authorized to enter into agreements with Internet providers, telecommunications providers, and
providers of similar services which may be in the nature of exclusive bulk service agreements, and for
which a monthly or annual fee for the services shall be collected from each Lot. the fees due to the
service providers shall be an item in the annual budget for the Association and shall be collected by
the Association from each Lot Owner as a portion of the General Assessment for Common Expenses
due from each Lot. Non-use of the service by a Lot owner shall not be a reason for non-payment of
any portion of the General Assessment.
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9.4. Easements for Irrigation and Flood Water. There are hereby reserved for the Declarant,
the Association, and their successors, assigns and designees, a non-exclusive right and easement over
the Properties for access, ingress and egress to lakes, ponds, creeks, streams, and wetlands located
within the Properties for the purpose of (a) installing, keeping, maintaining, repairing, and placing
pumps in order to pump water from such lakes, ponds, creeks, streams and wetlands for the irrigation
of any of the Maintenance Property; (b) constructing, maintaining, and repairing any dam, bulkhead,
retaining wall, levee, or other structure retaining water therein; and (c) removing trash and other debris
therefrom. All persons entitled to exercise these easements shall use reasonable care in, and repair any
damage resulting from, the exercise of such easements. Nothing herein shall be construed to make
Declarant, the Association or any other Person liable for damage resulting from flooding due to heavy
rainfall or other natural occurrences.
Pg 28
Kind DECL
9.5. Right of Entry. The Association and the Declarant shall have the right, but not the
obligation, to enter upon any Unit for emergency, security, and safety reasons, to perform maintenance
pursuant to Article III hereof, and to inspect for the purpose of ensuring compliance with this Declaration,
any Supplemental Declaration and rules. Such right may be exercised by the Declarant's or the
Association's officers, agents, employees, and managers, members of the Architectural Review
Committee pursuant to Article VII, and all police officers, firefighters, and ambulance personnel, and
similar emergency personnel in the performance of their duties. Except in an emergency situation, entry
shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the
right to enter upon any Unit to cure any condition which may increase the possibility of a fire or a hazard
in the event an Owner fails or refuses to cure the condition within a reasonable time after requested by the
Association, but shall not authorize entry into any single family detached dwelling without permission of
the Owner, except by emergency personnel acting in their official capacities.
ARTICLE X
DECLARANT'S RIGHTS
Any or all of the special rights and obligations of the Declarant set forth in this Declaration may
be transferred or assigned in whole or in part to other Persons, provided that the transfer shall not
reduce an obligation nor enlarge a right beyond that which the Declarant has under this Declaration. No
such transfer or assignment shall be effective unless it is in a written instrument signed by the
Declarant.
The Declarant and builders authorized by the Declarant may maintain and carry on upon portions
of the Common Area such facilities and activities as, in the sole opinion of the Declarant, may be
reasonably required, convenient or incidental to the construction or sale of Units, including, but not
limited to, business offices, signs, model homes, and sales offices. The Declarant and builder which it
may authorize shall have easements for access to and use of such facilities.
The Declarant and its employees, agents and designees shall also have a right and easement over
and upon all of the Common Area for the purpose of making constructing and installing such
improvements to the Common Area as it deems appropriate in its sole discretion.
No person shall record any declaration of covenants, conditions and restrictions, or declaration of
condominium, amendment to declaration or similar instrument affecting any portion of the Properties
without Declarant's review and written consent. Any attempted recordation without such consent shall
result in such instrument being void and of no force and effect unless subsequently approved by written
consent signed by the Declarant and recorded in the Public Records.
The Declarant shall have the right to enforce the provisions of the Governing Documents in the
same manner as the Association. Any entry upon a Unit for such purpose or for the purpose of
inspecting to verify compliance shall not be deemed a trespass.
Notwithstanding any contrary provision of the Declaration no amendment to or modification of
any Use Restriction and Rules or Design Guidelines shall be effective without prior notice to and the
written approval of Declarant so long as the Declarant owns any portion of the property described on
Exhibits A or B primarily for development and sale.
This Article may not be amended without the written consent of the Declarant. The right
contained in the Article shall terminate upon the earlier of (a) 30 years from the date this Declaration is
recorded, or (b) upon recording by Declarant of a written statement that all sales activity within the
Properties has ceased.
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ARTICLE XI
PROTECTION OF MORTGAGEES
The following provisions are for the benefit of holders, insurers and guarantors of first
Mortgages on Units in the Properties.
11.1. Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage who
provides a written request to the Association (such request to state the name and address of such holder,
insurer, or guarantor and the street address of the Unit to which its Mortgage relates, thereby becoming
an "Eligible Holder"), will be entitled to timely written notice of.
(a) Any condemnation loss or any casualty loss which affects a material portion of the
community or which affects any Unit on which there is a first Mortgage held, insured, or guaranteed by
such Eligible Holder;
(b) Any delinquency in the payment of assessments or charges owed by a Unit subject to the
Mortgage of such Eligible Holder, where such delinquency has continued for a period of 60 days, or
any other violation of the Governing Documents relating to such Unit or the Owner or occupant which
is not cured within 60 days; and
(c) Any lapse, cancellation, or material modification of any insurance policy maintained by the
Association.
11.2. No Priority. No provision of this Declaration or the By -Laws gives or shall be construed
as giving any Owner or other party priority over any right of the first Mortgagee of any Unit in the case
of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of
the Common Area.
11.3. Notice to Association. Upon request, each Owner shall be obligated to furnish to the
Association the name and address of the holder of any Mortgage encumbering such Owner s Unit.
ARTICLE XII
GENERAL PROVISIONS
12.1. Duration.
(a) Unless terminated as provided in Section 12.1 (b), this Declaration shall have perpetual
duration. If North Carolina law hereafter limits the period during which covenants may run with the
land, then to the extent consistent with such law, this Declaration shall automatically be extended at the
expiration of such period for successive periods of 20 years each unless terminated as provided herein.
Notwithstanding the above, if any of the covenants, conditions, restrictions, or other provisions of this
Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such
provisions shall continue only until 21 years after the death of the last survivor of the now living
descendants of Elizabeth II, Queen of England.
(b) Unless otherwise provided by North Carolina law, in which case such law shall control, this
Declaration may not be terminated within the first 20 years after the date of recording without the
agreement of Lot Owners to which at least 100% of the votes in the Association are allocated, and by the
Declarant, if the Declarant owns any portion of the Properties, which instrument is prepared and
executed consistent with the applicable requirements of G.S. 47F, and is recorded in the Watauga County
Public Registry. Thereafter, it may be terminated only by an agreement of Lot Owners to which at least
80% of the votes in the Association are allocated, and by the Declarant, if the Declarant owns any
portion of the Properties, which instrument is prepared and executed consistent with the applicable
requirements of G.S. 47F, and is recorded in the Watauga County Public Registry. Nothing in this
Section shall be construed to permit termination of any easement created in this Declaration without the
consent of the holder of such easement.
(c) The Association shall not transfer, convey, assign or otherwise relinquish its responsibility
for the operation and maintenance of the Wastewater System and/or the Water System until a permit has
been reissued to the Association's successor. Notwithstanding any term of this Declaration, the
Declaration shall not be terminated and the Association shall not be voluntarily dissolved without having
made adequate provision for the continued proper maintenance, repair and operation of the Wastewater
System and the Water System and the Association shall not enter into voluntary dissolution without first
having transferred the Wastewater System and the Water System to some person, corporation or other
entity acceptable and approved by the Environmental Management Commission of the State of North
Carolina, by the issuance of a permit
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12.2, Amendment.
(a) The Declarant may amend this Declaration at any time if such amendment is specifically
required to enable any institutional or governmental lender, purchaser, insurer or guarantor of mortgage
loans, including, for example, the U.S. Department of Veterans Affairs, the U. S. Department of
Housing and Urban Development, the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation, to make purchase, insure, or guarantee mortgage loans on the units, or if
required to comply with any applicable federal or state law or regulation. During the Declarant Control
Period, the Declarant may amend this Declaration unilaterally for any other reason, provided such
amendment does not materially adversely affect the rights or obligations of any Owner or the title to
any Lot or Unit without the Owner s consent
(b) Except as otherwise specifically provided above and elsewhere in this Declaration, this
Declaration may be amended only by the affirmative vote or written consent, of Lot Owners to which
at least 67% of the votes in the Association are allocated, and, so long as the Declarant owns any
property subject to this Declaration or has an option to subject additional property to this Declaration
pursuant to Section 6.1, the consent of the Declarant.
Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall
not be less than the prescribed percentage of affirmative votes required for action to be taken under that
clause.
(c) No amendment may remove, revoke, or modify any right or privilege of, nor directly or
indirectly change the status or rights of, the Declarant without the written consent of the Declarant, (or
the assignee of such right or privilege).
If an Owner consents to any amendment to this Declaration, it will be conclusively presumed that
such Owner has the authority to consent, and no contrary provision in any Mortgage or contract between
the Owner and a third party will affect the validity of such amendment.
Any amendment shall become effective upon recording in the Watauga County Public Registry,
unless a later effective date is specified in the amendment. Any procedural challenge to an amendment
must be made within six months of its recordation or such amendment shall be presumed to have been
validly adopted In no event shall a change of conditions or circumstances operate to amend any
provisions of this Declaration.
12.3. Severability. Invalidation of any provision of this Declaration in whole or in part, or any
application of a provision of this Declaration by judgment or court order shall in no way affect other
provisions or applications.
12.4. Cumulative Effect: Conflict. The provisions of this Declaration shall be cumulative with
the provisions of any applicable Supplemental Declaration. Nothing in this Section shall preclude any
Supplemental Declaration or other recorded declaration, covenants and restrictions applicable to any
portion of the Properties from containing additional restrictions or provisions which are more
restrictive than the provisions of this Declaration, and the Declarant and the Association shall have the
standing and authority to enforce the same.
12.5. Notice. Unless otherwise specified herein, any notice to be given under this Declaration
shall be in writing and shall be deemed delivered when personally delivered to the intended recipient or
on the third day following its deposit with the United States Postal Service, registered or certified mail,
postage prepaid and properly addressed to the recipient as follows.
(a) If to the Declarant or the Association, at the address of their respective registered agents in
the State of North Carolina; or
(b) If to an Owner, at the address of the unit or such other address as the Owner may have
specified by written notice to the Declarant and the Association delivered in accordance with this
Section.
Failure to provide notice m accordance with this Section shall not negate the validity of written
notice if actually received by any other means.
12.6. Exhibits. Exhibits A, B, and C attached to this Declaration are incorporated by
reference and amendment of such exhibits shall be governed by the provisions of Section 12.2. All
other exhibits are attached for informational purposes and may be amended as provided therein or in
the provisions of this Declaration which refer to such exhibits.
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IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration effective the
day and year first above written.
STATE OF
COUNTY OF
J3M, LLC, a North Carolina limited liability company
By. ,
Melissa W. Harrill, Managing Member
By:
Ja
a itCt as GL:
I certify that the following person personally appeared before me this day, acknowledging to me that he
voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: _
111et'I-kgri t(, pnarla31D)MPminvt
Date: yoit C4 /0 , 20 ZZ
,•
Managing Member
Official Signature of Notary: , G% /J6'
Notary s Printed or Typed Name: ()elk*r IAt L. (AJC&
My Commission Expires: nkt S% 19, ao zZ
lofficin) stamp sear
•
`Nt L. fp`ice
NOTARY •S
PUBLIC :• Ci.
STATE OF ! V r- k Carol l n oti
COUNTY OF A u-Lau (ili,. .
I certify that the following person personally appeared before me this day, acknowledging to me that he
v luntarily signed•tie foregoing document for the,purpose stated therein and in the capacity indicated:
�
_
(kmes t. Heoro// .7/, ikietyns /12emb&r .
Date: W!/1 C4 /0 ,20 ZZ
Official Signature of Notary: L Y
Notary s Printed or Typed Name At L. G
My Commission Expires: Gl)„ /% 2ote,
[official stamp'seaI]
11111111//0, eIN
•• SO E f • h'��/��isiP
NOTARY
* *
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EXHIBIT A
DESCRIPTION
DECLARATION OF RESTRICTIONS
FOR
TILE BLUFFS AT BLOWING ROCK
BiaDowDr0 an an iron stake located at the base of two marked black
gum trees said iron being a corner of the Goldsmith and the lands
now or formerly owned by the Standard Investment Corporation and
Also being a corner to the Bury tract, and runs thence with the
Eery line South 23.43' Rest 2,521.72 feat to an iron stake located
in the center of a 30 foot wide etreett thence with the centerline
of said street the following courses and distances, North 68.57'
West 102.93 fat; South 76°51' Nest 46.17 fat, South 25439' west
57.07 feet, South 6°01' Nest 89.72 fat, South 34'29' West 97.31
feet, south 83°17' West 49.23 feat, North 33°01' West 111.06 fest,.
North 47'26' West 144.79 feet, South 76'16' Nest 43.02 feet, south
2°35' West 166.37 feet, South 8893' West 28.85 fat, North 44'06'
West 159.31 feet, North 30°33' Nest 109.28 feat, South 60'02' Nest
58.91 fest to an iron stake located in ths•propsrty line of the Gay '
'Mountain Corporation, Second Additions thence with their line the
following courses and distances. North 29'35' west 119.92 feet.
North 16°17' West 61.9Q feet, Korth 20'33' West 71.20 feet, Worth
6°39' Vest 49.35 feet, North 6°25' East 100.62 fest, North 1°42'
East 222.90 feet, North 37°571. east 75.57 fest,,Nort) S9'19' Bast
52.34 feet to an iron stake being *,corner to the Gay Mountain •
Second Addition and the Goldsmith property line; thence with the
Goldsmith line South 44944' Bast s9:8s feet to an iron stake in •
the centerline of a 30 foot street; thane with the centerline of
*aid 30 foot street the following courses and distances. North
WOO' East 59.77 feet, North 16'10' Best 197.47 teat, North
33°38' Bast 199.28 fat to a point in'tha centerline of said strait
and also being the corner of Lot 6 af'a sub -division of the Goldsmith
property; thence with the lot line of.said sub -division South 85,50'
East 208.86 feet to an old iron stake foundr thence North 32.21'
Bast 132.00 feet to an old iron stake foandptbence North•15•04'
West 324.40 feet to an.old iron stake found; thence North 18'37'
West 98.32 feet to an old iron stake found; therms North 23'21'
West 95.73 fat to an old iron stake found, said iron being a ••
corner to Lot No. 1 of the Goldsmith subdivision; thence a new
line through the Goldsmith property Nortb13'21' West 564.58
fat to a PK nail in the southeast edge of highway No. 221;
thence with the said edge of U. S. 221 North 28°26' East 723.80
feet to a PK nail in the edge of said road; thence leaving amid
road and with the ziaraeermen line South 74°18' East 21.60 feet to
an old iron stake found near the'tence line; thence continue with
said Zimmerman line South 57'46' Best 225.49 fat to an iron stake
in the fence corner; thence South 75.52' Bast 449.25 fat to an
iron stake in the fence line and said iron being near a marked oak
tree; thence North 32643' Beet 139.26 feet to a point in a planted
stone said stone being a corner to the Zimmerman property and also
being a corner of the property formerly owned or now owned by
standard Investment Corporation; thence with the Standard Investment
line South 47.01' Bast 144.61 feet to 2" x 4" Locust post; thence •
south 4649' Bast 286.12 feet to a 4" x 4" Locust post; therms
South 83'37' East 253.58 fat to the point of BEGINNING, contains '
65.0844 acres competed by ONO, according to survey'an platy by flames
A. Dogger MIS No. L-1121, dated November 17, 1972.
sea map of survey of record in the Office of the Register of Deeds
for Watauga County at Boone, North Carolina, in Nap'Sook 6 at Page
232.
•
There is also conveyed herewith a perpetual easement of right of
way (30 feet in width) over the present road a part of which is
called Rocky Meadows Road (sometimes known as Knob ADad) from its
present entrance at tr. S. Highway No. 221 to the eastern boundary
•line of the Bury property, as shown on'the 1°ap hereinaboee referred
to, the said road to be kept open at all times for the use and
benefit of the Grantors, their heirs, successors and assigns, and
for the use and benefit of ths.Grantees their heirs, successors and
assigns, without any liability on the part of the Grantors, their
heirs, successors or assigns for the maintenance of said road.
SAVE AND EXCEPT that portion of the above -described property shown as part of Lots 1, 2, and 3 on
that plat recorded in Plat Book 28, Page 96, Watauga County Public Registry, and conveyed in that deed
recorded in Book 2158, Page 350, Watauga County Publtc Registry.
This conveyance is SUBJECT TO that view easement conveyed in that deed recorded in Book 2158,
Page 350, Watauga County Public Registry.
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EXHIBIT B
TO PROPOSED DECLARATION OF RESTRICTIONS
FOR
THE BLUFFS AT BLOWING ROCK
•
Any and all parcels of land which are located within a two-mile radius of the boundary lines of the
property described in Exhibit A attached hereto.
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EXHIBIT C
TO DECLARATION OF RESTRICTIONS
FOR
THE BLUFFS AT BLOWING ROCK
BYLAWS
OF
THE BLUFFS AT BLOWING ROCK PROPERTY OWNERS ASSOCIATION, INC.
A NON-PROFIT CORPORATION
ARTICLE I
Name, Principal Office, and Definitions
1.1. Name. The name of the corporation is The Bluffs at Blowing Rock Property Owners
Association, Inc (the "Association").
1.2. Principal Office. The principal office of the Association shall be located in Watauga
County North Carolina. The Association may have such other offices, either within or outside the State
of North Carolina, as the Board of Directors may determine or as the affairs of the Association may
require.
1.3. Definitions. The words used in these By -Laws shall be given their normal, commonly
understood definitions Capitalized terms shall have the same meaning as set forth in that certain
Declaration of Restrictions for The Bluffs at Blowing Rock filed in the Office of the Register of Deeds
for Watauga County, North Carolina, as it may be amended (the 'Declaration"), unless the context
indicates otherwise.
ARTICLE II
Association: Membership, Meetings, Quorum, Voting, Proxies
2.1. Membership. The Association shall have two classes of membership, Class "A' and
Class "B' , as more fully set forth in the Declaration, the terms of which pertaining to membership are
incorporated by this reference.
2.2. Place of Meetings. Meetings of the Association shall be held at the principal office of the
Association or at such other suitable place convenient to the Members as may be designated by the
Board, either within the Properties or as convenient as is possible and practical.
2 3. Annual Meetings. The first meeting of the Association, whether a regular or special
meeting, shall be held within one year from the date of' incorporation of the Association. Subsequent
regular annual meetings shall be set by the Board so as to occur during the second quarter of the
Association's fiscal year on a date and at a time set by the Board.
2.4. Special Meetings. The President may call special meetings. In addition, it shall be
the duty of the President to call a special meeting if so directed by resolution of the Board or upon a
petition signed by Members representing at least 25% of the total Class "A" votes in the Association.
2.5. Notice of Meetings. Written or printed notice stating the place, day, and hour of any
meeting of the Members shall be delivered, either personally or by mail, to each Member entitled to
vote at such meeting not less than 10 nor more than 50 calendar days before the date of such meeting,
by or at the direction of the President or the Secretary or the officers or persons calling the meeting.
In the case of a special meeting or when otherwise required by statute or these By -Laws the
purpose or purposes for which the meeting is called shall be stated in the notice. No business shall be
transacted at a special meeting except as stated in the notice.
If mailed, the notice of a meeting shall be deemed to be delivered on the third day after it is
deposited in the United States mail addressed to the Member at its address as it appears on the records
of the Association, with postage prepaid.
2.6. Waiver of Notice. Waiver of notice of a meeting of the Members shall be deemed the
equivalent of proper notice. Any Member may, in writing, waive notice of any meeting of the
Members, either before or after such meeting. Attendance at a meeting by a Member or the Member's
proxy shall be deemed a waiver by such Member of notice of the time date, and place thereof, unless
such member or proxy specifically objects to lack of proper notice at the time the meeting is called to
order. Attendance at a special meeting also shall constitute waiver of notice of all business transacted at
such meeting unless an objection on the basis of lack of proper notice is raised before the business is
put to a vote.
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2.7. Voting. The voting rights of the Members shall be as set forth in the Declaration and in
these By -Laws and such voting rights provisions are specifically incorporated by this reference.
2.8. Proxies. At all meetings of Members, each Member may vote in person (if a
corporation, partnership or trust, through any officer, director, partner or trustee duly authorized to act
on behalf of the Member) or by proxy subject to the limitations of North Carolina law. All proxies
shall be in writing specifying the Unit(s) for which it is given, signed by the Member or its duly
authorized attorney -in -fact, dated and filed with the Secretary of the Association prior to any meeting
for which it is to be effective. Unless otherwise specifically provided in the proxy, a proxy shall be
presumed to cover all votes which the Member giving such proxy is entitled to cast, and in the event of
any conflict between two or more proxies purporting to cover the same voting rights, the later dated
proxy shall prevail, or if dated as of the same date, both shall be deemed invalid. Every proxy shall be
revocable and shall automatically cease upon conveyance of any Unit for which it was given, or upon
receipt of notice by the Secretary of the death or judicially declared incompetence of a Member who is
a natural person, or of written revocation, or 11 months from the date of the proxy, unless a shorter
period is specified in the proxy.
2.9. Majority. As used in these By -Laws, the term "majority" shall mean those votes.
Owners, Members, or other group, as the context may indicate, totaling more than 50% of the total
eligible number.
2.10. Quorum. Except as otherwise provided in these By -Laws or in the Declaration, the
presence, in person or by proxy, of Members entitled to cast forty percent (40%) of the votes which
may be cast for election of the Board shall, constitute a quorum at all meetings of the Members. If a
quorum is not present or represented at the initial meeting, the Members entitled to vote at such
meeting shall have the power to adjourn the meeting from time to time, without notice other than the
announcement at the meeting, and the required quorum shall reduce by half for each subsequent
meeting until a quorum is present or is represented, but in no event shall the quorum be less than 10%
of the votes which may be cast for election of the Executive Board. The Members at any meeting at
which a quorum is present may continue to do business until adjournment notwithstanding the
withdrawal of enough Members to leave less than a quorum.
The Members represented at a duly called or held meeting at which a quorum is present at the
beginning of a meeting may continue to do business until adjournment, notwithstanding the
withdrawal of Members leaving less than a quorum, provided that any action taken is approved by at
least that number of votes which would be required to approve the action were a quorum still present.
2.11. Conduct of Meetings. The President shall preside over all meetings of the Association,
and the Secretary shall keep the minutes of the meetings and record in a minute book all resolutions
adopted and all other transactions occurring at such meetings.
2.12. Action Without a Meeting. Any action required or permitted by law to be taken at a
meeting of the Members may be taken without a meeting, without prior notice and without a vote, if
written consent specifically authorizing the proposed action is signed by all Members entitled to vote
thereon. Such consent shall be filed with the minutes of the Association, and shall have the same force
and effect as a vote of the Members at a meeting. Within 10 business days after receiving authorization
for any action by written consent, the Secretary shall give written notice to all Members entitled to vote
who did not give their written consent, fairly summarizing the material features of the authorized action.
ARTICLE III
Board of Directors: Number, Powers. Meetings
A. Composition and Selection.
3.1. Governing Body: Composition. The affairs of the Association shall be governed by a
Board of Directors, each of whom shall have one equal vote. Except with respect to directors appointed
by the Class "B" Member, the directors shall be Members or Residents; provided, no Owner and
Resident representing the same Unit may serve on the Board at the same time. A "Resident" shall be
any natural person 18 years of age or older whose principal place of residence is a Unit within the
Properties. In the case of a Member which is not a natural person, any officer, director, partner,
employee or trust officer of such Member shall be eligible to serve as a director unless otherwise
specified by written notice to the Association signed by such Member; provided, no Member may have
more than one such representative on the Board at a time, except in the case of directors appointed by
the Class "B" Member
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3.2. Number of Directors. The Board shall consist of five directors, as provided in Sections
3.3 and 3.5 below. The initial Board shall consist of three directors as identified in the Articles of
Incorporation.
3.3. Directors During Developer Control Period. Subject to the provisions of Section 3.5
below, the directors shall be selected by the Class ' B" Member acting in its sole discretion and shall
serve at the pleasure of the Class "B" Member until the first to occur of the following:
(a) 120 days after conveyance of 61 Units within the Properties to an owner other than
Declarant;
(b) December 31, 2042;
(c) When, in its discretion, the Class "B" Member so determines.
3.4 Annual Enforcement Rights. Notwithstanding anything to the contrary in this
Article, the Board may elect to enforce any provision of the Governing Documents by self-help, by suit
at law or in equity to enjoin any violation or to recover monetary damages or both, without the necessity
of compliance with the procedure set forth above. In any such action, to the maximum extent
permissible, the Owner or occupant responsible for the violation of which abatement is sought shall pay
all costs including reasonable attorney's fees actually incurred. Any entry onto a Unit for purposes of
exercising this power of self-help shall not be deemed as trespass.
3.5 Nomination and Election Procedures.
(a) Nominations and Declarations of Candidacy. Prior to each election of directors by
the Class "A" Members, the Board shall prescribe the opening date and the closing date of a reasonable
filing period in which each and every eligible person who has an interest in serving as a director may
file as a candidate for any position to be filled by votes of Class "A" Members. The Board shall also
establish such other rules and regulations as it deems appropriate to conduct the nomination of directors
in a fair, efficient and cost-effective manner.
Except with respect to directors selected by the Class "B" Member, nominations for election
to the Board may also be made by a Nominating Committee. The Nominating Committee, if any, shall
consist of a Chairman, who shall be a member of the Board, and three or more Members or
representatives of Members. The Board shall appoint the members of the Nominating Committee, if one
is to be appointed, not less than 30 calendar days prior to each annual meeting to serve a term of one year
and until their successors are appointed, and such appointment shall be announced at each annual
meeting.
The Nominating Committee may make as many nominations for election to the Board as it
shall in its discretion determine. In making its nominations, the Nominating Committee shall use
reasonable efforts to nominate candidates representing the diversity which exists within the pool of
potential candidates.
Each candidate shall be given a reasonable, uniform opportunity to communicate his or her
qualifications to the Members and to solicit votes.
(b) Election Procedures. Each Class "A' Member may cast the entire vote assigned to his
Unit for each position to be filled by the votes of Class "A" Members. There shall be no cumulative
voting. That number of candidates equal to the number of positions to be filled receiving the greatest
number of votes shall be elected. Directors may be elected to serve any number of consecutive terms.
3.6 Election and Term of Office. Notwithstanding any other provision of these By -Laws:
(a) Within 90 calendar days after termination of the Developer Control Period, the
President shall call for an election by which the Class "A" Members shall be entitled to elect three of
the five directors The remaining two directors shall be appointees of the Class "B" Member. The
directors elected by the Class "A" Members shall not be subject to removal by the Class ' B" Member
and shall serve until the first annual meeting following the termination of the Developer Control
Period. If such annual meeting is scheduled to occur within 90 calendar days after termination of the
Developer Control Period, this subsection shall not apply and directors shall be elected in accordance
with subsection (b) below.
(b) Not later than the first annual meeting after the termination of the Developer Control
Period, an election shall be held at which five directors shall be elected by the Class 'A" Members,
with the two directors receiving the largest number of votes being elected for a term of three years the
two directors receiving the next largest number of votes being elected for a term of two years, and the
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remaining director being elected for a term of one year. Upon the expiration of the term of office of
each director elected by the Class "A" Members, a successor shall be elected to serve a term of three
years. The directors elected by the Class "A" Members shall hold office until their respective
successors have been elected.
3.7. Removal of Directors and Vacancies. Any director elected by the Class "A"
Members may be removed, with or without cause, by Members holding a majority of the votes entitled
to be cast for his or her election. Any director whose removal is sought shall be given notice prior to
any meeting called for that purpose Upon removal of a director by the Class "A" Members, a successor
shall be elected by the Class "A" Members to fill the vacancy for the remainder of the term of such
director.
Any director elected by the Class "A" Members who has three or more consecutive
unexcused absences from Board meetings, or who is more than 30 days delinquent (or is the
representative of a Member who is so delinquent) in the payment of any assessment or other charge due
the Association, may be removed by a majority of the directors present at a regular or special meeting
at which a quorum is present and the Board may appoint a successor to fill the vacancy for the
remainder of the term.
In the event of the death, disability, or resignation of a director elected by the Class "A"
Members, the Board may declare a vacancy and appoint a successor to fill the vacancy until the next
annual meeting, at which time the Class "A" Members shall elect a successor for the remainder of the
term.
This Section shall not apply to directors appointed by the Class "B" Member nor to any
director serving as a representative of the Developer. The Class B" Member shall be entitled to
appoint a successor to fill any vacancy on the Board resulting from the death, disability or resignation
of a director appointed by the Class "B" Member or serving as a representative of the Developer.
B. Meetings.
3.8. Organizational Meetings. The first meeting of the Board following each annual
meeting of the membership shall be held immediately following the annual meeting or at such other
time and place within 10 business days thereafter as a majority of the directors shall determine.
3.9. Regular Meetings. Regular meetings of the Board may be held at such time and
place as a majority of the directors shall determine, but at least four such meetings shall be held during
each fiscal year with at least one per quarter.
3.10. Special Meetings. Special meetings of the Board of Directors shall be held when
called by written notice signed by the President or Vice President or by any two directors. The notice
shall specify the time and place of the meeting and the nature of any special business to be considered.
3.11. Notice: Waiver of Notice.
a) Notice of the time and place of a regular meeting shall be communicated to directors
not less than 4 calendar days prior to the meeting. Notice of the time and place of a special meeting shall
be communicated to directors not less than 72 hours prior to the meeting No notice need be given to
any director who has signed a waiver of notice or a written consent to holding of the meeting. The
notice shall be given to each director by: (i) personal delivery; (ii) first class mail, postage pre -paid; (tii)
telephone communication, either directly to the director or to a person at the director's office or home
who would reasonably be expected to communicate such notice promptly to the director; or (iv) e-mail
transmission to the director's home or office, with a confirmation of receipt reply back by said director.
All such notices shall be given at the director's telephone or e-mail address or sent to the director's
address as shown on the records of the Association. Notices sent by first class mail shall be deemed
communicated on the third day after being deposited into a United States mailbox. Notices given by
personal delivery, telephone, or email shall be deemed communicated when delivered or telephoned, or
upon receipt of confirmation of transmission via e-mail.
b) The transactions of any meeting of the Board, however called and noticed or wherever
held, shall be as valid as though taken at a meeting duly held after regular call and notice if (i) a quorum
is present and (ii) either before of after the meeting each of the directors not present signs a written
waiver of notice, a consent to holding the meeting or an approval of the minutes. The waiver of notice
or consent need not specify the purpose of the meeting. Notice of a meeting also shall be deemed given
to any director who attends the meeting without protesting before or at its commencement about the lack
of adequate notice.
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3.12. Telephonic Participation in Meetings. Members of the Board or any committee
designated by the Board may participate in a meeting of the Board or committee by means of conference
telephone or similar communications equipment, by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this subsection shall constitute
presence in person at such meeting.
3.13. Quorum of Board of Directors. At all meetings of the Board, a majority of the
directors shall constitute a quorum for the transaction of business, and the votes of a majority of the
directors present at a meeting at which quorum is present shall constitute the decision of the Board,
unless otherwise specifically provided in these By -Laws or the Declaration. A meeting at which a
quorum is initially present may continue to transact business, notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the required quorum for that meeting
If any meeting of the Board cannot be held because a quorum is not present, a majority of the directors
present at such meeting may adjourn the meeting to a time not less than 5 nor more than 30 days from
the date of the original meeting. At the reconvened meeting, if a quorum is present, any business which
might have been transacted at the meeting originally called may be transacted without further notice.
3.14. Compensation. Directors shall not receive any compensation from the
Association for acting as such unless approved by Members representing a majority of the total Class
"A" votes in the Association at a regular or special meeting of the Association. Any director may be
reimbursed foi expenses incurred on behalf of the Association upon approval of a majority of the other
directors. Nothing herein shall prohibit the Association from compensating a director, or any entity with
which a director is affiliated for services or supplies furnished to the Association in a capacity other
than as a director pursuant to a contract or agreement with the Association, provided that such director's
interest was made known to the Board prior to entering into such contract and such contract was
approved by a majority of the Board of Directors, excluding the interested director.
3.15. Conduct of Meetings. The President shall preside over all meetings of the
Board and the Secretary shall keep a minute book of Board meetings recording all Board resolutions
and all transactions and proceedings occurring at such meetings.
3.16. Notice to Owners; Open Meetings Except in an emergency, notice of Board
meetings shall be posted at Least 48 hours in advance of the meeting at a conspicuous place within the
Properties which the Board establishes for the posting of notices relating to the Association. Meetings
of the Board shall not be open to Members unless so determined by the Board in its sole discretion.
For meetings that the Board chooses to open to Members, Members other than directors may not
participate in any discussion or deliberation unless permission to speak is requested on his or her
behalf by a director In such case the President may limit the time any Member may speak.
Notwithstanding the above, the President may adjourn any meeting of the Board and reconvene in
executive session, and may exclude Members, to discuss matters of a sensitive nature, such as pending
or threatened litigation, personnel matters etc.
3.17. Action Without a Formal Meeting. Any action to be taken at a meeting of the
directors or any action that may be taken at a meeting of the directors may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by all of the directors, and such
consent shall have the same force and effect as a unanimous vote.
C. Powers and Duties.
3.18. Powers. The Board of Directors shall have all of the powers and duties necessary for
the administration of the Association's affairs and for performing all responsibilities and exercising all
rights of the Association as set forth in the Declaration these By -Laws, the Articles, and as provided by
law. The Board may do or cause to be done all acts and things except those, if any, which the
Declaration, Articles, these By -Laws, or North Carolina law direct to be done and exercised
exclusively by the membership generally.
3.19. Duties. The duties of the Board shall include, without limitation:
a) Preparing and adopting, in accordance with the Declaration, an annual budget
establishing each Owner's share of the Common Expenses and any budget(s) relating to Limited
Common Areas or the provision of services to Tess than all Units in accordance with Section 5.5(d) of
the Declaration;
b) Levying and colleting assessments to cover such expenses;
c) Providing for the operation, care, upkeep, and maintenance of the Area of
Common Responsibility;
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d) Designating, hiring, and dismissing the personnel necessary to carry out the rights
and responsibilities of the Association and where appropriate, providing for the compensation of such
personnel and for the purchase of equipment supplies, and materials to be used by such personnel in
the performance of their duties;
e) Opening of bank accounts on behalf of the Association and designating the
authorized signatories.
0 Depositing all funds received on behalf of the Association in a bank depository
which it shall approve, and using such funds to operate the Association; provided, any reserve fund
may be deposited, in the director's business judgment, in depositories other than banks;
g)
Making and amending Use Restrictions and Rules in accordance with the
Declaration;
h) Making or contracting for the making of repairs, additions, and improvements to or
alterations of the Common Area in accordance with the Declaration and these By -Laws.
i) Enforcing by legal means the provisions of the Governing Documents and bringing
any proceedings which may be instituted on behalf of or against the Owners concerning the Association;
provided, in determining whether to take such enforcement action, the Board may consider, among
other things, the particular circumstances, the nature of the violation the strength of the Association's
legal position, as well as the benefits to be achieved in relation to the burden on the Association, its
resources, and its members of pursuing such enforcement action;
j) Obtaining and carrying property and liability insurance and fidelity bonds as
provided in the Declaration, paying the cost thereof, and filing and adjusting claims, as appropriate;
k) Paying the cost of all services rendered to the Association;
l) Keeping books with detailed accounts of the receipts and expenditures of the
Association;
m) Making available to any prospective purchaser of a Unit, any Owner, and the holders,
insurers and guarantors of any Mortgage on any Unit, current copies of the Governing Documents and
all other books, records and financial statements of the Association, as provided in Section 6.4.
n) Permitting utility suppliers to use portions of the Common Area reasonably necessary
to the ongoing development or operation of the Properties; and
o) Indemnifying a director, officer or committee member, or former director, officer or
committee member of the Association to the extent such indemnity is required under North Carolina
law, the Articles of Incorporation or these By -Laws.
3.20. Right of Class "B' Member to Disapprove Actions. So long as the Class "B"
membership exists, the Class "B" Member shall have a right to disapprove any action, policy or program
of the Association, the Board and any committee which, in the sole judgment of the Class "B" Member,
would tend to impair rights of the Developer or builders under the Declaration or these By -Laws, or
interfere with development of or construction on any portion of the Properties, or diminish the level of
services being provided by the Association.
a) The Class "B" Member shall be given written notice of all meetings and proposed
actions approved at meetings (or by written consent in lieu of a meeting) of the Association, the Board
or any committee. Such notice shall be given by certified mail, return receipt requested, or by personal
delivery at the address it has registered with the Secretary of the Association, which notice complies as
to the Board meetings with Sections 3.8., 3 9. and 3.10. and which notice shall, except in the cast of the
regular meetings held pursuant to the By -Laws, set forth in reasonable particularity the agenda to be
followed at said meeting; and
b) The Class "B" Member shall be given the opportunity at any such meeting to join in
or to have its representatives or agents join in discussion from the floor of any prospective action,
policy or program which would be subject to the right of disapproval set forth herein
No action, policy or program subject to the right of disapproval set forth herein shall
become effective or be implemented until and unless the requirements of subsections (a) and (b) above
have been met.
The Class "B" Member, its representatives or agents shall make its concerns, thoughts and
suggestions known to the Board and/or the members of the subject committee. The Class "B" Member
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acting through any officer or director, agent or authorized representative, may exercise its right to
disapprove at any time within 10 business days following the meeting at which such action was
proposed or, in the case of any action taken by written consent m lieu of a meeting, at any time within
10 business days following receipt of written notice of the proposed action. This right to disapprove
may be used to block proposed actions but shall not include a right to require any action or
counteraction on behalf of any committee, or the Board or the Association The Class "B" Member shall
not use its right to disapprove to reduce the level of services which the Association is obligated to
provide or to prevent capital repairs or any expenditure required to comply with applicable laws and
regulations.
3.21. Management. The Board of Directors may employ for the Association a professional
management agent or agents at such compensation as the Board may establish, to perform such duties
and services as the Board shall authorize. The Board of Directors may delegate such powers as are
necessary to perform the manager's assigned duties, but shall not delegate policymaking authority or
those duties set forth in Sections 3.18(a), 3.18 (b), 3.18 (c) 3.18 (g) and 3.18 (i). The Developer, or an
affiliate of the Developer, may be employed as managing agent or manager, provided that any
management contract entered into with the Developer during the Developer Control Period is on
commercially reasonable terms.
The Board of Directors may delegate to one of its members the authority to act on behalf of
the Board on all matters relating to the duties of the managing agent or manager, if any, which might
arise between meetings of the Board.
3.22. Accounts and Reports. The following management standards of performance shall
be followed unless the Board by resolution specifically determines otherwise:
(a) Accounting and controls should conform to generally accepted accounting
principles:
(b) Cash accounts of the Association shall not be commingled with any other accounts
and reserve accounts shall be segregated from operating accounts and used only for their designated
purposes except as otherwise approved (i) during the Developer Control Period, by a majority of the
Class "A" votes cast on the issue, a quorum being represented or (ii) after the Developer Control
Period, by a majority of the total number of directors comprising the Board;
(c) No renumeration shall be accepted by the managing agent from vendors,
independent contractors, or others providing goods or services to the Association, whether in the form
of commissions, finder's fees, service fees, prizes gifts, or otherwise; anything of value received shall
benefit the Association;
(d) Any financial or other interest which the managing agent may have in any firm
providing goods or services to the Association shall be disclosed promptly to the Board;
(e) Commencing at the end of the quarter in which the first unit is sold and closed,
financial reports shall be prepared for the Association at least quarterly containing:
(i) An income statement reflecting all income and expense activity for the
preceding period on an accrual basis;
(ii) A statement reflecting all cash receipts and disbursements for the preceding
period;
(iii) A variance report reflecting the status of all accounts in an "actual" versus
"approved" budget format;
(iv) A balance sheet as of the last day of the preceding period; and
(v) A delinquency report listing all Owners who are delinquent in paying any
assessments at the time of the report and describing the status of any action to
collect such assessments which remain delinquent (Any assessment or
installment thereof shall be considered delinquent on the 15 h day following the
due date unless otherwise specified by Board -resolution); and
(f) An annual report consisting of at least the following shall be made available upon
request to all Members within 120 calendar days after the close of the fiscal year; (i) a balance sheet; (ii)
an operating (income) statement; and (iii) a statement of changes in financial position for the fiscal year.
Such annual report may be prepared on an audited, reviewed or compiled basis, as the Board determines
by an independent public accountant; provided, upon written request of any holder, guarantor or insurer
of any first Mortgage on a Unit, the Association shall provide an audited financial statement.
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3.23. Borrowing. The Association shall have the power to borrow money for any legal
purpose; provided, the Board shall obtain the approval of at least 51% of the total Class "A" vote in the
Association and the written consent of the Declarant during the Declarant Control Period. If the
proposed borrowing is for the purpose of making discretionary capital improvements and the total
amount of such borrowing, together with all other debt incurred within the previous 12-month period
exceeds or would exceed 10% of the budgeted gross expenses of the Association for that fiscal year
3.24. Right to Contract. The Association shall have the right to contract with any Person
for the performance of various duties and functions. This right shall include, without limitation, the right
to enter into common management, operational, or other agreements with trusts, condominiums,
cooperatives, or other owners or residents' associations, within and outside the Properties; provided, any
common management agreement shall require the consent of a majority of the total number of directors
of the Association. No contract, agreement or other transaction shall be entered into with the Developer
or with any officer, director or employee of the Association, any spouse of the foregoing, or any entity
in which an officer, director or employee or spouse has a material financial interest (less than 10%
ownership interest shall not be considered material) unless, prior to the Board's approval of such
contract, agreement, or other transaction, such interest is disclosed to the Board and the contract,
agreement or other transaction is on commercially reasonable terms.
3.25. Enforcement. In addition to such other rights as are specifically granted under the
Declaration, the Board shall have the power to impose reasonable monetary fines, which shall constitute
a hen upon the Unit of the violator, and to suspend an Owner's right to vote for violation of any duty
imposed under the Governing documents. In addition, the Board may suspend any services provided by
the Association to an Owner or the Owner's Unit if the Owner is more than 30 calendar days delinquent
in paying any assessment or other charges owed to the Association. In the event that any occupant,
tenant, employee, guest or invitee of a Unit violates the Governing Documents, and a fine is imposed,
the fine shall first be assessed against the occupant; provided, however, if the fine is not paid by the
occupant within the time period set by the Board, the fine shall be assessed against the Unit and the
Owner thereof upon notice from the Association. The failure of the Board to enforce any provision of
the Governing Documents shall not be deemed a waiver of the right of the Board to do so thereafter
Notwithstanding the above to the extent that the Declaration specifically provides for notice and an
opportunity to cure a violation, such notice and opportunity to cure shall be given prior to any
enforcement action being taken.
(a) Notice. Prior to Imposition of any monetary fine or suspension of voting rights or
services hereunder the Board or its delegate shall serve the alleged violator with written notice
describing (1) the nature of the alleged violation, (ii) the proposed sanction to be imposed, (iii) a period
of not less than 10 calendar days within which the alleged violator may present a written request for a
hearing to the Board or the Covenants Committee, if one has been appointed pursuant to Article V; and
(iv) a statement that the proposed sanction shall be imposed as contained in the notice unless a challenge
is begun within 10 days of the notice. If a timely challenge is not made, the sanction stated in the notice
shall be imposed; provided, the Board or Covenants Committee may, but shall not be obligated to,
suspend any proposed sanction if the violation is cured within the 10-day period. Such suspension shall
not constitute a waiver of the right to sanction future violations of the same or other provisions and rules
by any Person.
(b) Hearing. If a hearing is requested within the allotted 10-day period, the hearing
shall be held before the Covenants Committee, if one, or if none, then before the Board in executive
session. The alleged violator shall be afforded a reasonable opportunity to be heard. Prior to the
effectiveness of any sanction hereunder, proof of proper notice shall be placed in the minutes of the
meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the
date and manner of delivery, is entered by the officer director, or agent who delivered such notice. The
notice requirement shall be deemed satisfied if the alleged violator or its representative appears at the
meeting. The minutes of the meeting shall contain a written statement of the results of the hearing and
the sanction, if any, imposed.
(c) Appeal. Following a hearing before the Covenants Committee, the violator shall
have the right to appeal the decision to the Board of Directors. To exercise this right, a written notice of
appeal must be received by the Manager, President, or Secretary of the Association within 10 days after
the hearing date.
ARTICLE IV
Officers
4.1. Officers The officers of the Association shall be a President, Vice President,
Secretary and Treasurer. The President and Secretary shall be elected from among the members of the
Board; other officers may, but need not be members of the Board. The Board may appoint such other
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officers, including one or more Assistant Secretaries and one or more Assistant Treasurers, as it shall
deem desirable such officers to have such authority and perform such duties as the Board prescribes
Arty two or more offices may be held by the same person, except the offices of President and Secretary
4.2. Election and Term of Office. The Board shall elect the officers of the Association at
the first meeting of the Board following each annual meeting of the Members, to serve until their
successors are elected.
4.3. Removal and Vacancies. The Board may remove any officer whenever in its
judgment the best Interests of the Association will be served, and may fill any vacancy in any office
arising because of death, resignation, removal, or otherwise for the unexpired portion of the term.
4.4. Powers and Duties. The officers of the Association shall each have such powers and
duties as generally pertain to their respective offices, as well as such powers and duties as may
specifically be conferred or imposed by the Board of Directors. The President shall be the chief
executive officer of the Association The Treasurer shall have primary responsibility for the
preparation of the budget as provided for in the Declaration and may delegate all or part of the
preparation and notification duties to a finance committee, management agent or both.
4.5. Resignation. Any officer may resign at any time by giving written notice to the Board
of Directors, the President or the Secretary. Such resignation shall take effect on the date of the receipt
of such notice or at any later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
4.6. Agreements, Contracts, Deeds, Leases. Checks. Etc. All agreements, contracts,
deeds, leases, checks, and other instruments of the Association shall be executed by at least two officers
or by such other person or persons as may be designated by Board resolution.
4.7. Compensation. Compensation of officers shall be subject to the same limitations
as compensation of directors under Section 3.13.
ARTICLE V
Committees
5.1. General. The Board may appoint such committees as it deems appropriate to perform
such tasks and to serve for such periods as the Board may designate by resolution. Each committee shall
operate in accordance with the terms of such resolution.
5.2. Covenants Committee. In addition to any other committees which the Board may
establish pursuant to the Declaration, these By -Laws and, specifically, Section 5.1., the Board may
appoint a Covenants Committee consisting of at least three and no more than seven Members. Acting
in accordance with the provisions of the Declaration, these By -Laws and resolutions the Board may
adopt, the Covenants Committee, if established, shall be the hearing tribunal of the association and
shallconduct all hearings held pursuant to Section 3.24 of these By -Laws.
ARTICLE VI
Miscellaneous
6.1. Fiscal Year. The fiscal year of the Association shall be the calendar year unless
the Board establishes a different fiscal year by resolution.
6.2. Parliamentary Rules. Except as may be modified by Board resolution, Robert's
Rules of Order (current edition) shall govern the conduct of Association proceedings when not in
conflict with North Carolina law, the Articles of Incorporation, the Declaration, or these By -Laws.
6.3. Conflicts. If there are conflicts between the provisions of North Carolina law, the
Articles of Incorporation, the Declaration, and these By -Laws, the provisions of North Carolina law, the
Declaration, the Articles of Incorporation, and the By -Laws (in that order) shall prevail.
6.4. Books and Records.
a) Inspection by Members and Mortgagees. The Board shall make available for
inspection and copying by any holder, insurer or guarantor of a first Mortgage on a Unit, any Member,
or the duly appointed representative of any of the foregoing at any reasonable time and for a purpose
reasonably related to his or her interest in a Unit the Governing Documents and any amendments
thereto, the rules of the Association, the membership register, books of account, and the minutes of
meetings of the Members, the Board, and committees. The Board shall provide for such inspection to
take place at the office of the Association or at such other place within the Properties as the Board shall
designate.
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b) Rules for Inspection. The Board shall establish reasonable rules with
(i) Notice to be given to the custodian of the records;
(ii) Hours and days of the week when such an inspection may be
made; and
(iii) of the cost of reproducing copies of documents requested.
c) Inspection by Directors. Every director shall have the absolute right at any
reasonable time to inspect all books, records, and documents of the Association and the physical
properties owned or controlled by the Association. The right of inspection by a director includes the
right to make a copy of relevant documents at the expense of the Association.
6.5 Notices. Except as otherwise provided in the Declaration or these By -Laws, all
notices, demands, bills, statements and other communications under the Declaration or these By -Laws
shall be in writing and shall be deemed to have been duly given if delivered personally or if sent by
United States mail, first class postage prepaid.
a) If to a Member, at the address which the member has designated in writing and filed
with the Secretary or, if no such address has been designated, at the address of the unit of such Member;
or
b) If to the Association, the Board of Directors, or the managing agent, at the principle
office of the Association or the managing agent or at such other address as shall be designated by
notice in writing to the Members pursuant to this Section.
6.6. Amendment
a) By Class "B" Member. The Class "B" Member may amend these By -Laws at any time
if such amendment is specifically required to enable any institutional or governmental lender, purchaser,
insurer or guarantor of mortgage loans including, for example, the U.S. Department of Veterans
Affairs, the U.S. Department of Housing and Urban Development, the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation, to make, purchase insure or guarantee
mortgage loans on the Units, or if required to comply with any applicable federal or state law or
regulation. In addition, as long as the Developer has an option to annex additional property pursuant to
section 6.1 of the Declaration, the Developer may amend these By -Laws unilaterally for any other
reason, provided such amendment does not materially adversely affect the rights or obligations of any
Owner or the title to any Unit without the Owner's consent
b) By Members Generally. Except as provided above, these By -Laws may be amended
only by the affirmative vote or written consent, or any combination thereof, Members to which at least
67% of the votes in the Association are allocated, and so long as the Developer owns any property
subject to the Declaration or has an option to subject additional property to the Declaration pursuant to
Section 6.1 of the Declaration, the consent of the Developer. Notwithstanding the above, the percentage
of votes necessary to amend a specific clause shall not be less than the prescribed percentage of
affirmative votes required for action to be taken under that clause.
c) Validity and Effective Date of Amendments. Any procedural challenge to an
amendment must be made within six months of its recordation or such amendment shall be presumed to
have been validly adopted. In no event shall a change of conditions or circumstances operate to amend
any provisions of these By -Laws.
6.7. Association Responsibility for the Wastewater System and the Water System. The
Association shall not transfer, convey, assign or otherwise relinquish its responsibility for the operation
and maintenance of the Wastewater System and/or the Water System until a permit has been reissued to
the Association's successor. Notwithstanding any term of these Bylaws the Declaration shall not be
terminated and the Association shall not be voluntarily dissolved without having made adequate
provision for the continued proper maintenance, repair and operation of the Wastewater System and the
Water System and the Association shall not enter into voluntary dissolution without first having
transferred the Wastewater System and the Water System to some person, corporation or other entity
acceptable and approved by the Environmental Management Commission of the State of North
Carolina by the issuance of a permit
6.8 Indemnification. The Association shall indemnify every officer, director, and
committee member against all expenses, including counsel fees, reasonably incurred by them and each
of them in connection with any action, suit or other proceeding (including settlement of any suit or
proceeding, if approved by the then -Board) to which he or she may be a party by reason of being or
having been an officer, director or committee member of the Association.
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Elie officers, directors, and committee members shall not be liable for any mistake of judgment,
negligent or otherwise, except for their own individual willful misfeasance malfeasance, misconduct or
bad faith. The officers and directors shall have no personal liability with respect to any contract or other
commitment made or action taken in good faith on behalf of the Association. The Association shall
indemnify and forever hold each such officer, director and committee member harmless from any and
all liability to others on account of any such contract, commitment or action. Any right to
indemnification provided for herein shall not be exclusive of any other rights to which any present or
former officer, director or committee member may be entitled. The Association shall, as a Common
Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this
obligation, if such insurance is reasonably available.
38
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55 Broad Street
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PLAN
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DATE
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PROJECT
20.00149
PROJECT MANAGER
MJ CHEN
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THE BLUFFS AT BLOWING ROCK
THE BLUFFS AT BLOWING ROCK
PROPERTY OWNER'S ASSOCIATION, INC.
WATAUGA COUNTY, NORTH CAROLINA
PROJECT AREA
TOPOGRAPHIC MAP
FIGURE
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55 Broad Street
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mcgillassociates.com
DATE
DECEMBER 2021
PROJECT
20.00149
PROJECT MANAGER
MJ CHEN
THE BLUFFS AT BLOWING ROCK
THE BLUFFS AT BLOWING ROCK
PROPERTY OWNER'S ASSOCIATION, INC.
WATAUGA COUNTY, NORTH CAROLINA
PROJECT AREA
STREET LEVEL MAP
FIGURE
2