20072055 Ver 1_More Info Received_20080626

Independene Apartments - Revised Declaration of Restrictions https://webmail.ncmail.net/cp/ps/Mail/ViewMsgController?d=ncmail....
07 - 20 55
From: Noelle Winstead [[e-mail]]
Date: Jun 26, 2008 1:54 PM
To: <[e-mail]>
Cc:
Subject: Independene Apartments - Revised Declaration of Restrictions
Attachments: Winal Declaration of Restrictions. pdf (104 KB)
Chad,
Attached is the revised declaration of restrictions for the Independence Apartment Project. The language does
allow for the construction of wooden walkways that are supported a minimum of 3' above existing grade on both
Area A and Area B. The City of Wilmington has been planning walkways on the adjacent tract for some time
and just communicated to the MacRae's that they want to be able to connect the walkways across the MacRae's
land. I do not believe this should be a problem for DWQ. It has been authorized in numerous occasions in the
past. Also, the language concerning landscaping and the building has been eliminated or clarified. They do
wish to be able to maintain the front 2.94 acres in its existing state besides the planting of some trees so a
mowing allowance remains on that tract.
Please confirm your acceptance of the language and let me know if I need to send you hard copies or if this
e-mail is satisfactory.
Thank you for you time concerning this matter.
Sincerely,
Noelle Winstead
I of 1 7/3/2008 10:11 AM
Prepared By:
MCGUIREWOODS LLP (DEH)
300 North Third Street, Suite 400
Wilmington, North Carolina 28401
DECLARATION OF
RESTRICTIONS
This Declaration is made and entered into as of the day of July, 2008 by The
Oleander Company, Inc., a corporation organized and existing under the laws of the
State of North Carolina ("Declarant').
WITNESSETH:
WHEREAS, Declarant is the owner of certain lands located in the City of
Wilmington, North Carolina and lying on the east side of Independence Boulevard; and,
WHEREAS, pursuant to the provisions of Permit Number: IWGP100000 issued
by the Department of Environment and Natural Resources, Division of Water Quality,
Project Number 2007-2055 and 401 Water Quality Certification Number 3705, Declarant
has been allowed to fill isolated wetlands; and,
WHEREAS, as mitigation for the permitted filling, Declarant has agreed that the
Property as hereafter described will be subjected to the terms of this Declaration: and,
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NOW, THEREFORE, Declarant does hereby declare that the Property, as
hereinafter described, shall be held, transferred, sold and conveyed subject to the
following restrictions and covenants:
ARTICLE I
DEFINITIONS
The following Definitions shall be applicable to this Declaration:
1. 1. "Area A" shall refer to that tract of land containing 2.94 acres and shown
on the Map as "WETLAND PRESERVATION A".
1.2. "Area B" shall refer to that tract of land containing 4.02 acres and shown
on the Map as "WETLAND PRESERVATION B".
1.3. "Declaration" shall mean this instrument and the covenants, conditions,
restrictions and the provisions contained herein as the same may be amended from time
to time.
1.4, "Declarant" shall mean The Oleander Company, Inc., its successors and
assigns.
1.5. "Division" shall mean the Division of Water Quality of the North Carolina
Department of Environment and Natural Resources and its successors.
1.6. "Map" shall mean that Map entitled "WETLAND PRESERVATION
MAP - OLEANDER COMPANY" prepared by Hanover Design Services, P.A. attached
hereto as Exhibit A.
1.7. "Property" shall mean Area A and Area B as shown on the Map.
ARTICLE II
REMOVAL OF VEGETATION
AND LOT CLEARING
2.1. There shall be no destruction of trees or plants within the Property except
as set forth herein.
2.2 Notwithstanding the foregoing, Declarant may remove trees and plants
for the following purposes:
A. To control insects, invasive non-native plants and disease.
B. To clear and restore vegetative cover that has been damaged or
disturbed by the forces of nature or by the unauthorized acts of third parties.
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C. To remove trees and plants to the minimum extent necessary for
the erection, installation and maintenance of the wooden walkways and utility lines as
permitted in ARTICLE VII hereof.
D. To remove any hazardous vegetation affecting any road, trail or
walkway located adjacent to the Property.
ARTICLE III
EXCAVATION AND DREDGING
3.1. There shall be no grading, filling, excavation, dredging, mining or drilling;
no removal of topsoil, sand gravel, rock, peat, minerals or other materials, and no change
in the topography of the Property except to maintain or restore natural hydrology,
topography or drainage patterns or incident to other activities permitted hereunder.
Nothing contained herein shall preclude the erection, installation and maintenance of
wooden walkways and utility lines as permitted in ARTICLE VII, hereof.
ARTICLE IV
DRAINAGE
4.1 There shall be no drainage of the Property nor shall there be any diking,
dredging, alteration, draining, filling or removal of wetlands. Notwithstanding the
foregoing, Declarant may undertake activities which are designed to maintain, protect or
restore natural drainage patterns, hydrology, wetland values and habitat for carnivorous
plants so long as such activities do not otherwise violate applicable law. Furthermore,
nothing contained herein shall be deemed to restrict or affect the flow of water over and
upon the Property from adjacent property, whether or not owned by Declarant.
Furthermore, nothing contained herein shall be construed to restrict or impede the flow of
stormwater and drainage from other adjacent tracts.
ARTICLE V
AGRICULTRUAL, GRAZING
AND HORTICULTURE USE
5.1 Except as permitted herein, agricultural, grazing and horticultural use of
the Property is prohibited. except that non-commercial propagation of carnivorous and
native plants, grasses and trees and their continued maintenance on the Property is
permitted.
ARTICLE VI
DUMPING OR STORAGE
6.1. Dumping or storage of soil, trash, garbage, abandoned vehicles,
appliances, machinery or hazardous substances or waste upon the Property is prohibited.
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ARTICLE VII
RIGHTS RESERVED TO DECLARANT
7.1. In addition to those rights reserved to Declarant herein, Declarant does
specifically reserve unto itself the following rights:
A. To construct, repair, maintain, replace, reconstruct and remove
wooden bridges or walkways across the Property, said walkways to be no more than six
(6) feet in width and supported and elevated a minimum of three (3) feet above existing
grade.
B. To plant native species and to periodically mow undergrowth within
Area A.
C. To perform periodic cutting of undergrowth for fire prevention and for
the clearing and maintenance of the walkways permitted under ARTICLE VII hereof.
Such cutting shall be accomplished by the use of hand tools, including hand-held and
operated motorized tools.
D. To install, repair, maintain, replace, re-install utility lines and facilities
within the Property.
ARTICLE VIII
TRANSFER OF PROPERTY
8.1. Nothing contained herein shall restrict or impair Declarant's ability to sell,
convey and transfer the Property, in whole or in part. Any successor and assign of the
Declarant shall be bound by the terms hereof.
ARTICLE IX
LIABILTY OF DECLARANT
9.1 Declarant shall have no liability of any nature whatsoever for breach or
violation of this Declaration if such violation occurs after transfer of title by the Declarant
nor shall Declarant have any liability of any nature whatsoever if any violation is the
result of causes beyond Declarant's control, including and without limitation, fire, flood,
storm, war, acts of God or third parties unless such parties are acting at the direction and
control of the Declarant. Declarant shall have no liability for any prudent action taken in
good faith by Declarant under emergency conditions to prevent, abate or mitigate injury
to person or property.
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ARTICLE X
COVENANT RUNNING WITH LAND
10.1. The covenants contained in this Declaration shall be binding upon
Declarant, its successors and assigns and shall be deemed covenants running with the
land.
ARTICLE XI
CONSTRUCTION
11.1. This Declaration shall be construed in accordance with and under the laws
of the State of North Carolina.
ARTICLE XII
RECORDING
12. L This Declaration shall be recorded in the Office of the Register of Deeds
of New Hanover County, North Carolina.
ARTICLE XIII
AMENDMENT
13.1. Declarant may amend this Declaration at any time but only with the
written consent of the Division. Any and all such amendments shall be effective only at
such time as they are recorded in the Office of the Register of Deeds of New Hanover
County, North Carolina.
ARTICLE IV
HEADINGS
14.1 The headings contained in this Declaration are for reference purposes only
and shall not affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, Declarant has caused this instrument to be executed
and its seal affixed effective the day and year first above written.
THE OLEANDER COMPANY, INC.
BY:
Nelson MacRae, President
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STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
I, , a Notary Public, do
hereby certify that Nelson McRae personally appeared before me this day, and
acknowledged that he is the President of The Oleander Company, Inc., a North
Carolina corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed and sealed in its name by him/her as its President.
WITNESS my hand and notarial seal, this day of July, 2008.
Notary Public
Print or Type Name
(Official Seal) My Commission Expires:
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