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Harball to Norwood/Enforcement of CovenantsiK-allispell Charles A. Harball Office of City Attorney City Attorney 312 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 January 6, 2003 Bob Norwood % The Summit 205 Sunnyview Lane Kalispell, MT 59901 Re: Enforcement of Covenants in Buffalo Commons Tel 406.75 8.7708 Fax 406.758.7771 charball@kalispell.com You have requested the City of Kalispell to enforce the Covenants and Restrictions in Buffalo Commons regarding a fence that has been constructed by Walt Whirry at 11 Windward Loop. Pursuant to Article VI of the Covenants: The City of Kalispell is an interested party and shall, like the owner, at its sole election, also has/sic] the authority to enforce these Covenants, and in the event of litigation, shall be entitled to attorney's fees. As you may be aware, the City of Kalispell does not generally become involved in covenant and restriction disputes as it is a private matter between landowners and appropriately handled between those parties most invested. For whatever reason, the City of Kalispell did sign on to this particular set of covenants and is, by law, an interested party. However, the election to so prosecute such a matter is within the sole discretion of the City. I am unwilling to bring the City into this dispute for a number of reasons. First, the City does not have a representative on the ARC and does not otherwise have any "eyes or ears" in the neighborhood. We therefore cannot respond in a timely fashion to breaches to the covenants within the neighborhood. It is too late to respond after the offending house or fence is constructed and the City has not already given notice to the landowner that what he is preparing to do or in the process of doing is a violation of restrictions. Second, the City's resources are already stretched just trying to keep up with zoning enforcement. Bob Norwood January 6, 2003 Page - 2 In the event that there is a general "revolt" of landowners who wish to defy the covenants, but who do not have the numbers to legitimately amend the covenants, the City will then consider its election to prosecute those violations. Otherwise, the odd violations here and there will need to be prosecuted by the neighbors who are most invested in the covenants. SincerelyeA.arball Charle City Attorney Office of City Attorney City of Kalispell JudiFunk From: Bob Norwood [Bnorwood@krmc.org] Sent: Friday, December 06, 2002 3:03 PM To: 'cityatty@kalispell.com' Subject: Buffalo Commons What is the status of your action with Walt Whirry 11 Windward Loop. In regard to his fences? the last letter that was sent was May 29 as you ask. please let me know what is happening with this. Thanks Bob Norwood Supervisor Youth & Recreation Services and Facility Operations The Summit 205 Sunnyview Lane Kalispell, MT 59901 bnorwood@krmc.org (406) 751-4132 www.summithealthcenter.com This communication is confidential to KRMC and is intended solely for the use of the individual or organization to whom it is addressed. It may contain privileged or confidential information. If you have received this message in error, please notify the originator immediately. If you are not the intended recipient, you should not use, copy, alter, or disclose the contents of this message. All information or opinions expressed in this message and/or any attachments are those of the author and are not necessarily those of KRMC. KRMC accepts no responsibility for loss or damage arising from its use, including damage from a virus. May 29, 2002 Walt Whiny 11 Windward Loop Kalispell, MT 59901 Dear Mr. Whirry: At the May 14, 2002 Architectural Committee meeting, it was again the unanimous decision of the committee that you are in violation of the covenants for Buffalo Commons. As you are aware, Article H, Section 2 of the covenants states that "before beginning the construction of any building, road or driveway, fence, wall or other structure whatsoever, or remodeling, reconstruction or altering such road, driveway or structure upon any lot, the person or persons desiring to effect, construct or modify the same shall submit to the Architectural Review Committee, a complete set of plans and specifications thereof including front, side, and rear elevations, floor plans for each floor and basement, exterior color schemes, a block or plot plan indicating and fixing the exact location of such structure of such altered structure on the grading plan if requested." As you did not submit a plan for approval, the letter sent to you dated April 18, 2002 instructed you to discontinue construction of the fence pending approval of the design. Not only did you not submit a plan for approval, you continued construction of the chain link fence. It was the committee's unanimous opinion that chain link fences would not be allowed within the Buffalo Commons Single Family Subdivision. The committee is at this time requiring that you remove the chain link fence that you erected on your lot within 15 days of receipt of this letter. For the Architectural Review Committee, Enclosed: Buffalo Commons Single Family Covenants April 18, 2002 Letter from Architectural Committee cc: Peter Fennelly Jim Oliverson EXHIBIT B4D" n DECLARATION OF (COVENANTS CONDITIONS AND RESTRICTIONS BUFFALO COMMONS (Single Family) o 9 THIS DECLARATION, made this 24�� day of 199E, by Northwest Healthcare Corporation, hereinafter referred to as " CLARANT', WITNESSETH; That WHEREAS, Northwest Healthcare Corporation is the owner of real property situated in Flathead County, Montana, described as follows: All that land shown on and described as Parcel 1 of Certificate of Survey No. 13186, Records of Flathead County, Montana. That WHEREAS, Declarant is desirous of subjecting all of said property hereinabove described as all that land as shown on and described as Parcel 1 of Certificate of Survey No.13186, Records of Flathead County, Montana, to the Conditions, Covenants and Restrictions hereinafter set forth, each and all of which is and are for the benefit of said property and for each owner thereof and shall inure to the benefit and pass with said property, and each and every parcel thereof, and shall apply to and bind the successors in interest, and any owner thereof; NOW, THEREFORE, the Declarant, being the owner of all of the real property above -described, hereby declares that the said real property is, and shall be, held, transferred, sold and conveyed, subject to the conditions, restrictions, covenants and reservations hereinafter set forth; and All persons or corporations who now or shall hereafter acquire any interest in and to the above -described property shall be held to agree and covenant with the owner of any of the property hereinabove described, or any parcel thereof, and with their heirs and successors and assigns, to conform to and observe the following covenants, restrictions, and conditions as to the use 1 thereof, and as to the construction of dwellings and improvements thereon. Section 1: "Declarant" herein mentioned is Northwest Healthcare Corporation. Section 2: "Association" shall mean The Buffalo Commons "Single Family" Property Owners Association. Section 3: "Owner" shall mean and refer to the person or persons owning a parcel of land in fee simple, absolute, individually or as an owner in any real estate tenancy relationship recognized under the laws of the State of Montana, including a unit ownership pursuant to a recorded unit ownership declaration. Section 4: "Lot" shall mean any plot of land shown upon any recorded subdivision plat or map of the property. Section 5: "Vote" or "voter", shall mean one vote per lot, provided that the Declarant herein shall be entitled to a vote for each lot it owns inclusive of a lot shown on a preliminary subdivision plat which has not . received final subdivision plat approval. ARTICLE 11. ARCHITECTURAL REVIEW COMMITTEE Section 1. Members/Terms: The Architectural Review Committee shall consist of three individuals appointed by the Board of Directors of the Buffalo Commons Property Owners Association from owners within the property described as all that land as shown on and described as Parcel 1 of Certificate of Survey No. 13186, Records of Flathead County, Montana, and shall be known as the Buffalo Commons Single Family Architectural Review Committee hereinafter referred to as Architectural Review Committee. The members of the Architectural Review Committee may be appointed and removed at the sole discretion of the Board of Directors of the Buffalo Commons Property Owners Association. Section 2. Function of the Architectural Committee: All owners intending to construct any structure .whatever upon any lot, shall first submit 2 their plans and specifications, in writing, to the Architectural Review Committee. All plans for the construction of any building, private road or driveway, fence, wall or other structure to be erected upon any lot and the proposed location thereof upon any lot and any change, after approval thereof, any remodeling, reconstruction, alteration or addition to any building, road, driveway, or other structure upon any lot in said premises, shall require written approval of said Architectural Review Committee. Before beginning the construction of any building, road or driveway, fence, wall or other structure whatsoever, or remodeling, reconstruction or altering such road, driveway or structure upon any lot, the person or persons desiring to effect, construct or modify the same shall submit to the Architectural Review Committee, a complete set of plans and specifications thereof including, front, side, and rear elevations, floor plans for each floor and basement, exterior color schemes, a block or plot plan indicating and fixing the exact location of such structure or such altered structure on the grading plan if requested. A reasonable fee shall be paid to the Architectural Review Committee with such plans, said fee to be set by said Committee. (Preliminary sketch of plan may be submitted prior to the execution of detailed drawings.) in the event the proposed improvement shall be one for repainting or redecorating the exterior of such structure without remodeling or changing it, or making additions thereto, it shall only be necessary to file one color scheme of such proposed work and have the same approved prior to the commencement of such work. Section 3. Approval by Architectural Review Committee: Approval by the Architectural Review Committee of all exterior plans and specifications must be submitted for approval in writing, and shall not be deemed to be a waiver by the Architectural Review Committee of the right to object to any of the features or elements embodied in such plans or specifications if and when the same features or elements are embodied in any subsequent plans or specifications submitted for approval for use on other building sites. In the event the Architectural Review Committee fails to act within thirty (30) days after the proposed plans and specifications of any structure have been submitted, in writing, or in any event, if no suit to enjoin the construction has been commenced prior to the completion of an entire dwelling, no specific approval shall be required for such structure and the pertinent provisions to the Declaration shall be deemed to have been fully complied with. The Architectural Review Committee may, at any time, inspect any building or 3 property located in said subdivision for the purpose of determining whether the exterior of said building conforms to these covenants. Approval of such plans and specifications shall be evidenced by written endorsement on such plans or specifications, a copy of which shall be delivered to the owner or owners of the lot upon which the prospective building, road, driveway or other structure is contemplated, prior to the beginning of such construction. No changes or deviations in or from such plans and specifications as apprgved, shall be made without the prior written consent of the Architectural Review Committee, and construction shall be completed within one (1) year from date of approval of said plans and specifications. Structural engineering shall be the responsibility' of the owner. The Architectural Review Committee may waive such provisions contained in these covenants as they deem appropriate. In passing upon any plans and specifications submitted to it, the Architectural Review Committee shall consider: a) Suitability of the improvement and materials of which it is to be constructed to the site upon which it is to be located; b) The nature of the adjacent neighboring improvements; c) The quality of the materials to be utilized in any proposed improvements; and d) The effect of any proposed improvement on the adjacent or neighboring property. In passing on any plans and specifications, it shall be an objective of the Architectural Review Committee to make certain that no improvement will be so similar or so dissimilar to others in the vicinity that values, monetary or aesthetic, will be impaired, and to maintain for the benefit of the Architectural Review Committee and all subsequent individual lot owners, the nature character of the land and to require that all man-made structures blend into the natural background rather than stand out against it. Section 1 . Single Family: The following are permitted uses for all that 11 1 land shown on and described as Parcel 1 of Certificate of Survey No. 131861 Records of Flathead County, Montana: Single Family dwellings Parks ARTICLE IV. RESTRICTIONS AS TO LANDSCAPING Section 1. Landscaping: Landscape treatment required for .all lots shall consist of a combination of turf, shrubs, and trees. ARTICLE V. MISCELLANEOUS RESTRICTIONS Section 1 . Lot Size: Minimum lot sizes are 7,000 square feet with a minimum lot width of 60 feet. Section 2. Building Size: Each building or other structure shall be constructed, erected and maintained in strict accordance with the approved plans and specifications. Residential dwellings shall have a base floor area of not less than 1400 square feet of living area for a single story buiding. Multi- story dwellings shall not have less than 1650 square feet of total living area. For purposes of this paragraph, the basement, porch, steps, and garage shall not be considered a part of the living area. A garage having a minimum of 2 parking stalls shall be required for each lot having a residential dwelling. Maximum building height will be 30 feet. Section 3. Setbacks: Setbacks are 20 feet in the front and rear and 5 feet on either side, except a 20 foot setback is required on the corner side of any lot. Section 4. Utilities: All utilities including but not limited to power, electric, and telephone shall be underground. Section 5. Continuity of Construction: All structures shall have the exterior completed within twelve (12) months of commencement of construction unless an exception is granted in writing by the Architectural Review Committee. Section 6. Temporary Structures: No trailer, basement, tent, shack, garage, barn or other outbuilding erected or placed on any lot shall at any time be used as a permanent residence. Any of the aforementioned structures shall be erected at any time without the written approval of the Architectural Review Committee. Section 7. Animals: No animals of any kind, shall be raised, bred or kept on any lot, excepting that dogs, cats and other small domestic animals may be kept and raised, but not for commercial purposes. Permitted animals, t not exceeding two adult animals, must be confined to the lot of their owner and not permitted to run at large. Section 8. Garbage: No lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste, shall be kept in covered, reasonable airtight containers. Such containers must be kept in a garage or other enclosed area. Section; 9. Landscaping and Fences: No hedges, shrubs or other plantings, or any structure shall be permitted which unreasonably objects the view of any owner or motor vehicle drivers, and shall not in any even, exceed four (4) feet in height nor more than three (3) f: et in height anywhere in the front twenty-five (25) feet of the property. All or any landscaping shall be subject to the approval of the Architectural Review Committee. There shall be no fences in front yards. Fences in the rear yard shall have a maximum height of six (6) feet. Section 10. Signs: Except for the Declarant or its agent, no signs shall be placed on any lot except name plates and one unlighted sign not exceeding three (3) square feet in surface area advertising the sale or lease of the lot or improvements thereon. Section 11. Parking: All lot owners shall be responsible for providing on -site parking in accordance with the Kalispell Zoning Ordinance for the intended uses. Section 12. Nuisance: No noxious or offensive activity shall be carried on nor shall anything be done or permitted which shall constitute a public nuisance therein. Section 13. Burning: Open fires are not permitted on the property. Outdoor barbecues are not an open fire WILhin the meaning hereof. Ce ARTICLE VI. ENFORCEMENT Section 1. Interested Parties: Any owner shall have the option and right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations and charges now or hereafter imposed by the provisionsof this Declaration. The method of enforcement may include proceedings to enjoin the violation, to recover damages, or both. Failure by any owner to enforce any such provision shall in no event be deemed a waiver of the right to do so thereafter. The City of Kalispell is an interested party and shall like an owner, at its sole election, also has the 'authority to enforce these Covenants, and in the event of litigation, shall be entitled to attorneys fees. Section 2. Severability: Invalidation of any one of these covenants or restrictions by judgment or court order, shall in no wise affect any other provision which shall remain in full force and effect. ARTICLE VII. TERM The provisions of these protective covenants are to run with the land and shall be binding upon all parties and all persons claiming under them, for a period of twenty (20) years from the date they are recorded, after which time said protective covenants shall be automatically extended for successive periods of ten (10) years unless an, instrument executed by the owners of seventy-five' percent (75%) of the 31 single family lots located on the land described as all that land as shown on and described as Parcel 1 of Certificate of Survey No. 13186, Records of Flathead County, Montana, has been recorded agreeing to terminate said protective covenants or change them in whole or in part. Each lot shall be entitled to one vote under this Article. ARTICLE VIII. AMENDMENT This Declaration may be amended by an instrument signed by the owners of Seventy-five Percent (75%) of the 31 single family lots located on the land described as all that land as shown on and described as Parcel 1 of Certificate of Survey No. 13186, Records of Flathead County, Montana, which instrument has been recorded, agreeing to such amendment. Each lot shall be entitled to one vote under this Article provided that in any event an amendment shall not be valid unless approved in writing by the City of Kalispell. 0 IN WITNESS WHEREOF, the Declarant has executed this instrument the day and year first above written. NORTHWEST HEALTHCARE CORPORATION By: President STATE OF MONTANA ) ss. County of Flathead j On this =.2.. day of 199 F, before me, the undersigned, a Notary Public for th6 State of Montana, personally appeared �` known to me to be the President of Northwest on, Healthcare Corporatithe Corporation whose name is subscribed to the within instrument, and acknowledged to me that such Corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my 'Nb6.riaI,,Seal the day and year in this certificate first above written. r-, Notary Public for the State oJ Montana �? Residing at,Montana My commission expires 9 �a<<TA April 18, 2002 Mr. Walt Whirry 11 Windward Loop Kalispell, MT 59901 Dear Mr. Whirry: During the Buffalo Commons Single Family Lot Owners Organization Meeting last night, one of the members asked if the Architectural Review Committee had approved your chain link fence. I replied that I was not aware of a request for approval of a fence on your property. They instructed me to have you discontinue your fence construction until you have received approval from the Architectural Review Committee for the design and material. For the Architectural Review Committee, Jim Oliverson JO/ir Cc: Peter Fennelly Bob Norwood .b,., :...r::_O „F ,....::.:. ;,:..: , : ,n-'F;