Download the official Wintergreen covenants HERE (pdf)
DECLARATION OF RIGHTS, RESTRICTIONS, AFFIRMATIVE OBLIGATIONS AND CONDITIONS APPLICABLE TO ALL PROPERTY IN WINTERGREEN
September 1974
WHEREAS, WINTERGREEN, a limited partnership existing under the laws of the Commonwealth of Virginia (the Company), is the owner of certain lands located within a community known as "Wintergreen" in Nelson and Augusta Counties, Virginia.
For helpful guidelines regarding what requires ARB approval, go HERE.
WHEREAS, the Company wishes to declare certain restrictive covenants affecting certain lands in Wintergreen.
Now, THEREFORE, the Company does hereby declare that the covenants contained herein shall be covenants running with the land and shall apply to the lands described in Exhibit "A" attached hereto and lands placed under the coverage hereof by express declaration. The Company reserves in each instance the right to add additional restrictive covenants in respect to said properties to be conveyed, or to limit therein the application of this Declaration.
DEFINITIONS
"Wintergreen" when used herein shall refer to the lands in Nelson and Augusta Counties, Virginia, which are shown as a part of Wintergreen on the Company's Master Development Plan as revised from time to time.
Whenever used herein, the term "Company" or "the Company" shall refer to Wintergreen, a Virginia limited partnership.
Whenever used herein, the term "Association” shall refer to Wintergreen Property Owners Association, Inc., a Virginia nonprofit corporation, its successors and assigns, and any other community or owners association within Wintergreen organized by the Company or by others with the consent of the Company.
The term "Property" when used herein shall refer to any tract of land or subdivision thereof in Wintergreen which has been subjected to the provisions of this Declaration by reference in deeds issued by the Company.
The term "Property Owner" when used in this Declaration shall mean and refer to all owners (including the Company) of an interest in real property in Wintergreen including, but not limited to, owners of property or tracts of land and owners of condominium units whether such property, tracts or units are used or/intended to be used for residential, commercial or recreational purposes.
The covenants and restrictions below will be referred to as the General Covenants of September 10, 1974, and will be recorded in the Offices of the Clerks of Circuit Court of Nelson and Augusta Counties, Virginia, and may be incorporated by reference in deeds to real property issued by the Company by reference to the book and page of recording in the land records of said Clerk's Offices.
PART I – COVENANTS, RESTRICTIONS AND AFFIRMATIVE OBLIGATIONS APPLICABLE TO ALL PROPERTIES IN WINTERGREEN
The primary purpose of these covenants and restrictions and the foremost consideration in the origin of same has been the creation of a community which is aesthetically pleasing and functionally convenient. The establishment of objective standards relating to design, size, and location of dwellings and other structures makes it impossible to take full advantage of the individual characteristics of each parcel of property and of technological advances and environmental considerations. For this reason such standards are not established by these covenants. In order to implement the purposes of these covenants, the Company may establish and amend, from time to time, objective standards and guidelines which shall be in addition to and more restrictive than said Conditional Use.
* See Article V, Section 5 of the Amended Property Owner Covenants (WPOA) for Special Assessments for Construction which currently (2018) has been set at $750.00.
1. No building, fence or other structure shall be erected, placed or altered nor shall a building permit for such improvement be applied for on any property in Wintergreen until the proposed building plans and specifications, showing floor plans, the front elevation, exterior color or finish, a plot plan detailing the proposed location of such building or structure, drives and parking areas, a landscape plan, a pollution control plan described in paragraph 1 of Part II, and the construction schedule shall have been filed with and approved in writing by the Company, its successors or assigns. Refusal of approval of plans, location or specification may be based by the Company upon any ground, including purely aesthetic conditions, which in the sole and uncontrolled discretion of the Company shall seem sufficient. No alteration in the exterior appearance of any building or structure shall be made without like approval by the Company. A filing fee of ten ($10.00) dollars shall accompany the submission of such plans *. In the event approval of such plans is neither granted nor denied within thirty (30) days following receipt by Company of written demand for approval, the provisions of this paragraph shall be thereby waived.
2. Prior to the commencement of construction of improvements on any property, a building certificate must be obtained from the Company or its assigns and prior to occupancy of any dwelling unit a certificate of occupancy must be obtained from the Company or its assigns. A certificate of occupancy will not be issued unless the improvements on the property substantially conform to the plans filed pursuant to the provisions of paragraph one (1) above.
3. In order to assure that location of buildings and other structures will be located and staggered, so that the maximum view, privacy and breeze will be available to each building or structure, and that structures will be located with regard to the topography of each property taking into consideration the location of large trees and other aesthetic and environmental considerations, the Company reserves unto itself, its successors and assigns, the right to control absolutely and solely to decide the precise site and location of any building or structure or structures on any property in Wintergreen for reasons which may in the sole and uncontrolled discretion and judgment of the Company seem sufficient. Such location shall be determined only after reasonable opportunity is afforded the property owner to recommend a specific site. Provided, however, that in the event an agreed location is stipulated in writing in the contract of purchase, the Company shall automatically approve such location.
4. Should any dwelling unit or other structure on any property be destroyed in whole or in part, it must be reconstructed or the debris therefrom must be removed and the property restored to a neat and sightly condition within six (6) months.
5. No signs shall be erected or maintained on any property by anyone including, but not limited to, the owner, a realtor, a contractor or subcontractor, except with the written permission of the Company or except as may be required by legal proceedings. If such permission is granted, the Company reserves the right to restrict size, color and content of such signs. Residential property identification and like signs not exceeding a combined total of more than one (1) square foot may be erected without the written permission of the Company.
6. It shall be the responsibility of each property owner and tenant to prevent the development of any unclean, unsightly or unkept conditions of buildings or grounds on such property. No outside burning of wood, leaves, trash, garbage or other refuse shall be permitted on any Property.
7. All animals must be secured by a leash or lead, or under the control of a responsible person and obedient to that person's command at any time they are permitted outside a house or other dwelling or other enclosed area approved by the Company for the maintenance and confinement of animals.
8. Prior to the occupancy of a building or structure on any property, proper and suitable provisions shall be made for the disposal of sewage by means approved by the Company.
9. Prior to the occupancy of a residence on any property, provision for water shall be made by means approved by the Company.
10. No property owner shall obstruct, alter or interfere with the flow or natural course of the waters of any creek, stream, lake or pond in Wintergreen without first obtaining the written consent of the Company.
11. The Company reserves unto itself, its successors and assigns, a perpetual, alienable and releasable easement and right on, over and under the ground to erect, maintain and use electric service, Community Antenna Television, and telephone poles, wires, cables, conduits, drainage ways, sewers, water mains and other suitable equipment for the conveyance and use of electricity, telephone equipment, gas, sewer, water, drainage or other public conveniences or utilities on, in or over those portions of such property as may be reasonably required for utility line purposes; provided, however, that no such utility easement shall be applicable to any portion of such property as may (a) have been used prior to the installation of such utilities for construction of a building whose plans were approved pursuant to these covenants by the Company, or (b) such portion of the property as may be designated as the site for a building on a plot plan for erection of a building which has been filed with the Company and which has been approved in writing by said Company. These easements and rights expressly include the right to cut any trees, bushes or shrubbery, make any gradings of the soil, or to take any other similar action reasonably necessary to provide economical and safe utility installation and to maintain reasonable standards of health, safety and appearance. The Company further reserves the right to locate wells, pumping stations, siltation basins and tanks within Wintergreen in any open space or on any property designated for such use on the applicable plat of said property, or to locate same upon any property with the permission of the owner of such property. Such rights may be exercised by any licensee of the Company, but this reservation shall not be considered an obligation of the Company to provide or maintain any such utility or service.
Following the installation of any utility apparatus or other improvement on any property pursuant to the provisions of this paragraph, the Company shall restore such property as nearly as is reasonably possible to its condition immediately prior to such installation.
12. The Company hereby reserves the right to establish reasonable limitations on the number of overnight guests who may occupy a dwelling unit at one time and to limit the number of non-related persons who may reside in a dwelling unit.
13. The use of roads in Wintergreen shall be subject to rules and regulations established and modified from time to time by the Company.
14. No vehicle of any type other than conventional automobiles, jeeps and pickup trucks shall be parked or maintained on any lot or residential building site except during the period of construction of a dwelling unit(s) thereon. A separate parking area for other vehicles shall be provided by the Company or the Association and the use of such area shall be available to all property owners in Wintergreen subject to space availability and the payment of a fee.
15. Snowmobiles shall not be used or maintained on any property as a recreational vehicle. Such vehicles may, however, be employed in the normal course of the business of a commercial or service entity in Wintergreen upon its receiving a written permit from the Company.
16. No vehicle shall be allowed to be operated on any road or trail not shown on a recorded subdivision plat without the written consent of the Company. Written consent is hereby granted for the operation of four-wheel drive vehicles on "jeep" trails designated from time to time by the Company. The use of such "jeep" trails shall be subject to the rules and regulations established, modified from time to time, and maintained by the Company.
17. Whenever the Company is permitted by these covenants (including all parts hereof) to correct, repair, clean, preserve, clear out or do any action on any property or on the easement areas adjacent thereto, entering the property and taking such action shall not be deemed a trespass.
PART II - ADDITIONAL RESTRICTIONS TO IMPLEMENT EFFECTIVE ENVIRONMENTAL CONTROLS
In order to protect the natural beauty of the vegetation, topography, and other natural features of all properties within Wintergreen and the beauty and purity of the watershed areas in Wintergreen the following environmental controls are hereby established:
1. Topographic and vegetation characteristics of properties within Wintergreen shall not be altered by removal, reduction, cutting, excavation or any other means without the prior written approval of the Company. Written approval will be granted hereunder only after a plan designed to protect the lakes and waterways from pollution resulting from erosion, pesticides or the seepage of fertilizer or other materials has been submitted to and accepted by the Company. Written approval will be granted for the minimum amount of earth movement and vegetation reduction required in plans and specifications approved pursuant to the provisions of paragraph 1 of Part I of these covenants.
2. No trees, shrubs or other vegetation may be removed without the written approval of the Company. Approval for the removal of trees located within ten (10) feet of the main dwelling or accessory building or within ten (10) feet of the approved site for such building will be granted unless such removal will substantially decrease the beauty of the property.
3. In order to implement effective and adequate erosion control and protect the purity and beauty of lakes and waterways in Wintergreen, the Company, its successors and assigns, and its agents shall have the right to enter upon any property for the purpose of performing any grading or landscaping work of constructing and maintaining erosion prevention devices. Such entries shall, however, be made only after construction of improvements have commenced on such property or the soil thereof has been graded. Provided, however, that prior to exercising its right to enter upon the property for the purpose of performing any grading or landscaping work or constructing or maintaining erosion prevention devices, the Company, its successors and assigns, shall give the owner of the property the opportunity to take any corrective action required by giving the owner of the property notice indicating what type of corrective action is required and specifying in that notice that immediate corrective action must be taken by the owner. If the owner of the property fails to take the specified corrective action immediately, the Company shall then exercise its right to enter upon the property in order to take the necessary corrective action. The cost of such erosion prevention measures when performed by the Company shall be kept as low as reasonably possible. The cost of such work, when performed by the Company, its successors or assigns, shall be paid by the owner thereof.
4. In order to implement effective insect, reptile, wildlife and woods fire control, the Company and its agents have the right to enter upon any property on which a building or structure has not been constructed and upon which no landscaping plan has been implemented, for the purpose of mowing, removing, clearing, cutting or pruning underbrush or weeds or other growth which in the opinion of the Company detracts from the overall beauty or safety for Wintergreen. The cost of this vegetation control shall be kept as low as reasonably possible and shall be paid by the owner of the property. The Company and its agents may likewise enter upon such property to remove any trash which has collected or to abate a threat to the watershed of Wintergreen from pollution. Such entry shall not be made until thirty (30) days after the owner of the property has been notified in writing of the need of such work, and unless such owner fails to perform the work within said thirty (30) day period. The provisions in this paragraph shall not be construed as an obligation on the part of the Company to mow, clear, cut or prune any property, to provide garbage or trash removal services, or to provide water pollution control on any privately owned property.
5. In addition, the Company reserves unto itself, its successors and assigns a perpetual, alienable and releasable easement and right on, over and under any property to dispense pesticides and take other action which in the opinion of the Company is necessary or desirable to control insects and vermin, to cut firebreaks and other activities which in the opinion of the Company are necessary or desirable to control fires on any property, or any improvements thereon. In the exercise of the rights reserved in this paragraph 5 the Company must take necessary precautions to protect the purity of the Wintergreen watershed.
6. The lake in Wintergreen currently known as Lake Monocan is a primary water supply for Wintergreen, and the Company, the Association, and owners of property within Wintergreen, their successors and assigns have a responsibility to avoid causing material adverse effect to the beauty, quality and purity of the waters thereof. In order to insure that this responsibility is fully met, the Company shall promulgate and may amend from time to time rules and regulations which shall govern such sensitive environmental activities as the application of fertilizers and pesticides and other chemicals, erosion control measures, use of lake surface, and any other activities as may materially affect the waters of the lake. Failure of any owner or tenant of property in Wintergreen to comply with the requirements of such rules and regulations shall constitute a breach of these covenants. The Company hereby reserves unto itself a perpetual, alienable and releasable easement and right on, over and under all property in Wintergreen for the purpose of taking any action necessary to effect compliance with the environmental rules and regulations. The cost of such action by the Company shall be paid by the owner(s) of the property upon which the work is performed. The provisions of this paragraph shall not be construed to be an obligation of the Company to take any action to effect compliance with the environmental rules and regulations.
PART III - ADDITIONAL RESTRICTIONS AFFECTING OPEN SPACE AREAS
1. It is the intent of the Company to maintain and enhance (or to convey subject to open space restrictions to the Association) certain areas which the Company designates as "Open Space Areas" or "Private Open Space Areas" on plats filed for record in the Offices of the Clerks of Circuit Court of Augusta and Nelson Counties, Virginia, by the Company. It is the further intent and purpose of these restrictions and covenants to protect, to maintain and enhance the conservation of natural and scenic resources, to promote the conservation of soils, wet lands, wildlife, game and migratory birds, enhance the value of abutting and neighboring properties adjacent to such forests, wildlife preserves, natural
reservations or sanctuaries or other open areas and open spaces, and to afford and enhance recreation opportunities, preserve historical sites and implement generally the Wintergreen Master Plan for development.
2. An easement in Open Space Areas is hereby granted to the owners of properties in Wintergreen, their tenants and guests, which easement shall entitle such owners, tenants and their guests to enjoy the Open Space Areas subject to the rules and regulations of the Company.
3. Land designated as "Open Space Areas" may be employed in the construction, maintenance, and enjoyment of the following facilities:
(a) Social, recreational, and community buildings.
(b) Public and private profit making clubs, golf courses and other
recreational facilities.
(c) Daycare centers, nursery schools, and kindergartens. (d) Indoor and outdoor recreational establishments.
(e) Art school and/or art gallery and/or nature museum. (f) Camps and camp sites.
(g) Emergency squad(s) and fire stations.
4. Land designated as "Private Open Space Areas" shall be subject to the easement granted in paragraph 2 of this Part III in every respect except that the enjoyment thereof shall be and is hereby limited to owners of property, tenants, and their guests immediately contiguous and adjacent to such land and owners of non- contiguous property designated on plats of property in Wintergreen as being entitled to the enjoyment thereof. The easement in Private Open Space Areas hereby granted shall not extend to any area not clearly designated as "Private Open Space Areas." All expenses incurred in the protection, maintenance and enhancement of "Private Open Space Areas" shall be paid equally by the owners who are entitled to an easement or enjoyment over such areas.
5. Pursuant to its overall program of wildlife conservation and nature study, the right is expressly reserved to the Company to erect wildlife feeding stations, to plant small patches of cover and food crops for quail, turkey and other wildlife, to make access trails or paths or boardwalks through said Open Space Areas and Private Open Space Areas for the purpose of permitting observation and study of wildlife, hiking, and riding, to erect small signs throughout the Open Space Areas and Private Open Space Areas designating points of particular interest and attraction, and to take such other steps as are reasonable, necessary and proper to further the aims and purposes of the open space community use and enjoyment thereof.
6. The Company shall have the right to protect from erosion the land described as Open Space Area or Private Open Space Area by planting trees, plants, and shrubs where and to the extent necessary or by such mechanical means as construction and maintenance of siltation basins or other means deemed expedient or necessary by the Company. The right is likewise reserved to the Company to take steps necessary to provide and insure adequate drainage ways in open space, to cut firebreaks, remove diseased, dead or dangerous trees and carry out other similar activities.
7. The Company reserves unto itself, its successors and assigns a perpetual, alienable and releasable easement and right to go on, over and under the ground to erect, maintain and use electric, Community Antenna Television, telephone poles, wires, cables, conduits, drainage ways sewers, water mains, and other suitable equipment for the conveyance and use of electricity, telephone equipment, gas, sewer, water drainage or other public conveniences or utilities in said Open Space Areas and Private Open Space Areas. These reservations and rights expressly include the right to cut any trees, bushes, or shrubbery, rights to make any gradings of the soil, or take any other similar action reasonably necessary to provide economical and safe utility installation and to maintain reasonable standards of health, safety and appearance. The Company further reserves the right to locate wells, pumping stations and tanks within such Open Space Areas and Private Open Space Areas. Such rights may be exercised by any licensee or assignee of the Company, but this reservation shall not be considered an obligation of the Company to provide or maintain any such utility or service.
8. No television antenna, radio receiver or sender or other similar device shall be attached to or installed on the exterior portion of open space property within Wintergreen except as following:
a) The provisions of this paragraph shall not prohibit the Company from installing equipment necessary for a master antenna system, Community Antenna Television (C.A.T.V.) and mobile radio systems or other similar systems within Wintergreen; and
(b) Should C.A.T.V. services be unavailable and good television reception not be otherwise available, an association owner may make written application to the Company for permission to install a television antenna and such permission shall not be unreasonably withheld.
9. No trash, garbage, sewage, sawdust or any unsightly or offensive material shall be placed upon such Open Space Areas or Private Open Space Areas, except as is temporary and incidental to the bona fide improvement of the area in a manner consistent with its classification as open space.
10. The granting of the easement in Open Space Areas and Private Open Space Areas in this part in no way grants to the public or to the owners of any land outside Wintergreen the right to enter such open space without the express permission of the Company.
11. The Company expressly reserves to itself, its successors and assigns, every reasonable use and enjoyment of said open space, in a manner not inconsistent with the provisions of this Declaration.
12. The Company further reserves the right to convey "Open Space Areas" and "Private Open Space Areas" to the Association. Such conveyance shall be made subject to the provisions of this Part III. As an appurtenance to such conveyances the Association shall have all of the powers, immunities and privileges reserved unto the Company in this part as well as all of the Company's obligations with respect thereto, including the obligation to maintain and enhance set out in paragraph 1 of this part. Property conveyed to the Association pursuant to the authority of this paragraph 12 shall become "Common Properties" or "Restricted Common Properties" as prescribed by the "Declaration of Covenants and Restrictions of the Wintergreen Property Owners Association, Inc. and Wintergreen, a limited partnership", which are to be recorded in the Offices of the Clerks of Circuit Court of Augusta and Nelson Counties, Virginia, contemporaneously herewith.
13. Where the Company is permitted by these covenants to correct, repair, clean, preserve, clear out or do any action on the restricted property, entering the property and taking such action shall not be deemed a breach of these covenants.
14. It is expressly understood and agreed that the granting of the easements set out in this Part III in no way places a burden of affirmative action on the Company, that the Company is not bound to make any of the improvements noted herein, or extend to any property owner any service of any kind, except as such may be undertaken at the expense of the Association.
PART IV - ADDITIONAL RESTRICTIONS AFFECTING GOLF FAIRWAY PROPERTIES
1. "Golf Fairway Property" is defined as all those properties intended for subdivision or development located adjacent to any golf course located in Wintergreen.
2. That portion of any Golf Fairway Property within thirty (30) feet of the property line bordering the golf course shall be in general conformity with the overall landscaping pattern for the golf course fairway area established by the golf course architect. All individual landscaping plans must be approved by the Company, before implementation.
3. There is reserved to the Company a "Golf Course Maintenance Easement Area" on each property adjacent to any golf course located in Wintergreen. This reserved easement shall permit the Company at its election, to go onto any Golf Course Maintenance Easement Area. Such maintenance and landscaping may include regular removal of underbrush, trees less than six (6) inches in diameter, stumps, trash or debris, planting of grass, watering, application of fertilizer, and mowing the easement area. This Golf Course Maintenance Easement Area shall be limited to the portion of such property within thirty (30) feet of the boundary line(s) bordering the golf course, or such lesser area as may be shown as a "Golf Course Maintenance Area" on the recorded plat of such property; provided, however, that the above described maintenance and landscaping rights shall apply to the entire property until there has been filed with the Company a landscaping plan for such property by the owner thereof, or alternatively, a building or other structure is constructed thereon.
4. Until such time as a building or other structure is constructed on a property, the Company reserves an easement to permit and authorize registered golf course players and their caddies to enter upon a property to recover a ball or play a ball, subject to the official rules of the course, without such entering and playing being deemed a trespass. After a building or other structure is constructed, such easement shall be limited to that portion of the property included in the Golf Course Maintenance Easement Area, and recovery of balls only, not play, shall be permitted in such easement area. Golfers or their caddies shall not be entitled to enter on any such property with a golf cart or other vehicle, shall not spend unreasonable time on such property. After construction of a building or other structure on a Golf Fairway Property, "Out of Bounds" markers may be placed on said property by the Company.
5. Owners of Golf Fairway Property shall be obligated to refrain from any actions which would detract from the playing qualities of the golf course or the development of an attractive overall landscaping plan for the entire golf course area.
6. Notwithstanding the provisions of paragraph 3 of this Part IV, the Company hereby reserves the right to allow an owner to construct a building or other structure over a portion of the "Golf Course Maintenance Easement Area" in those cases where it, in its uncontrolled discretion determines that such construction will not materially lessen the beauty or playing qualities of the adjacent golf course.
PART V - ADDITIONAL RESTRICTIONS AFFECTING SKI AREAS
1. "Ski Slope Property" is defined as all those properties intended for subdivision or development located adjacent to any ski slope or trail located in Wintergreen.
2. That portion of any Ski Slope Property within thirty (30) feet of the property or block line bordering the ski slope shall be in general conformity with the overall landscaping pattern for the ski slope area established by the ski slope architect. All individual landscaping plans must be approved by the Company, before implementation.
3. There is reserved to the Company a "Ski Slope Maintenance Easement Area" on each property adjacent to any ski slope located in Wintergreen. This reserved easement shall permit the Company at its election, to go onto any Ski Slope Maintenance Easement Area. Such maintenance and landscaping may include regular removal of underbrush, trees less than six (6) inches in diameter, stumps, trash or debris, planting of grass, watering, application of fertilizer, and mowing the easement area. This ski slope Maintenance Easement Area shall be limited to the portion of such property within thirty (30) feet of the boundary line(s) bordering a Ski Slope or trail, or such lesser area as may be shown as a "Ski Slope Maintenance Area" on the recorded plat of such property; provided, however, that the above described maintenance and landscaping rights shall apply to the entire property until there has been filed with the Company a landscaping plan for such property by the owner thereof, or alternatively, a building or other structure is constructed thereon.
4. Until such time as a building or other structure is constructed on a property, the Company reserves an easement to permit and authorize registered skiers to enter upon a property to recover a ski or other item of ski equipment, subject to the official rules of the ski area, without such entering being deemed a trespass. After a building or other structure is constructed, such easement shall be limited to that portion of the property included in the Ski Slope Maintenance Easement Area. Skiers shall not spend unreasonable time on such property.
5. Owners of Ski Slope Property shall be obligated to refrain from any actions which would detract from the skiing qualities of the ski area or the development of an attractive overall landscaping plan for the entire ski area.
6. Notwithstanding the provisions of paragraph 3 of this Part V, the Company hereby reserves the right to allow an owner to construct a building or other structure over a portion of the "Ski Slope Maintenance Area" in those cases where it, in its uncontrolled discretion determines that such construction will not materially lessen the beauty or playing qualities of the adjacent ski slope.
7. Ski slope property shall be subject to the following additional rights which are hereby reserved by the Company for itself, its successors and assigns:
(a) The right to maintain within the Ski Slope Maintenance Area drainage facilities to facilitate the removal of snow melt with minimum erosive effects.
(b) The right to enter upon any property to conduct first aid and rescue activities.
(c) The right to temporarily maintain and operate snow making machinery and related equipment (but not heavy motor driven vehicles) from time to time within the Ski Slope Maintenance Area.
PART VI - ADDITIONAL LIMITATIONS
1. All covenants, restrictions, and affirmative obligations set forth in this Declaration shall run with the land and shall be binding on all parties and persons claiming under them specifically including, but not limited to, the successors and assigns, if any, of the Company for a period of thirty (30) years from the execution date of this Declaration after which time, all said covenants shall be automatically extended for successive periods of ten (10) years, unless an instrument signed by a majority of the then owners of property substantially affected by a change in covenants, has been recorded, agreeing to change said covenants in whole or in part. Unless the contrary shall be determined by a court of equity jurisdiction, "substantially affected" shall mean those properties shown on (a) the plats showing the properties to be modified in permitted use by the change, and (b) the plats which subdivided the property immediately abutting the property shown on plats identified in and recorded in the Offices of the Clerks of Circuit Court of Augusta and Nelson Counties, Virginia.
2. In the event of a violation or breach of any of the restrictions contained herein by any property owner, or agent of such owner, the owners of properties in the neighborhood or subdivision, or any of them, jointly or severally, shall have the right to proceed at law or in equity to compel compliance to the terms hereof or to prevent the violation or breach in any event. In addition to the foregoing, the Company and/or the Association shall have the right to proceed at law or in equity to compel compliance to the terms hereof or to prevent the violation or breach in any event. In addition to the foregoing the Company and/or the Association shall have the right, whenever there shall have been built on any property in the subdivision any structure in violation of these restrictions, to enter upon such property where such violation exists and summarily abate or remove the same at the expense of the owner, if after thirty (30) days written notice of such violation it shall not have been corrected by the owner. Any such entry and abatement or removal shall not be deemed a trespass. The failure to enforce any rights, reservations, restrictions, or conditions contained in this Declaration, regardless of how long such failure shall continue, shall not constitute a waiver of or a bar to such right to enforce.
3. The Company reserves in each instance the right to add additional restrictive covenants in respect to lands conveyed in the future in Wintergreen, or to limit therein the application of these covenants. The right to add additional restrictions or to limit the application of these covenants shall be reasonably exercised and shall materially effect only properties against which these covenants have not been imposed.
4. The Company shall not be liable to an owner or to any other person on account of any claim, liability, damage or expense suffered or incurred by or threatened against an owner or such other person arising out of or in any way relating to the subject matter of any reviews, acceptances, inspections, permissions, consents or required approvals which must be obtained from the Company whether given, granted or withheld.
5. The Company reserves the right to assign in whole or in part to a subsequent developer of Wintergreen or to the Association its rights reserved in these covenants which include but are not limited to its right to grant approvals (or disapprovals) to establish rules and regulations, and all other rights reserved herein by the Company including but not limited to, the right to approve (or disapprove) plans, specifications, color, finish, plot plan and construction schedules. Following the assignment of such rights, the Assignee shall assume all of the Company's obligations which are incident thereto (if any) and the Company shall have no further obligation or liability with respect thereto. The assignment of such right or rights by the Company to an Assignee shall be made by written instrument which shall be recorded in said Clerk's Offices.
6. Wintergreen Property Owners Association, Inc. has established and published certain covenants and land use restrictions affecting properties in Wintergreen. Said covenants are to be recorded contemporaneously herewith in the Realty Records in the Offices of the Clerks of Circuit Court of Augusta and Nelson Counties, Virginia. Properties and owners of property subject to these covenants shall also be subject to the provisions of the said covenants established by Wintergreen Property Owners' Association, Inc.
7. Entrance upon any Property by the Company or its agents or assigns pursuant to the provisions of these covenants shall not be deemed to be a trespass.
8. Severability. Should any covenant or restriction herein contained, or any article, section, subsection, sentence, clause, phrase or term of this Declaration be declared to be void, invalid, illegal, or unenforceable, for any reason, by the adjudication of any court or other tribunal having jurisdiction over the parties hereto and the subject matter hereof, such judgment shall in no wise affect the other provisions hereof which are hereby to be severable and which shall remain in full force and effect.
Dated this 26th day of September, 1974.
WINTERGREEN, a Virginia Limited Partnership, by CC&F Wintergreen, Inc., a Partner of and Sole Agent for the General Partner, Big Survey Properties, a Massachusetts General Partnership:
CC&F WINTERGREEN, INC.
BY: GARY W. GREEN
Vice President
Attest: William S. Abbott Secretary
State of Massachusetts )
ss. County of Suffolk )
Personally appeared Gary W. Green and William S. Abbott and acknowledged the same to be their free act and deed, before me.
RUTH A. WHITE
NOTARY PUBLIC
My commission expires September 27, 1979