Wintergreen is a planned residential community which means that the larger details of the development, subdivisions and condominiums, are subject to the limits imposed by a Master Plan and the smaller details, the appearance and location of buildings and certain activities, are controlled by Covenants and Restrictions. Covenants and Restrictions are agreements, recorded in the County Clerk’s Office and referred to in the deed, that are entered into between the developer and the purchasers of properties in a development and their successors. In Wintergreen’s case, there are a series of Covenants and Restrictions that have differing applications for different portions of the community. For example, the Single Family Covenants apply to homesites on the mountain; the Amended Single Family Covenants apply to homesites in the new portion of Stoney Creek. However, all properties that have been subjected to the Wintergreen Covenants and Restrictions have been subjected to both the WPOA Covenants and to the General Covenants.
The WPOA Covenants establish (i) the membership, and voting rights of the WPOA, (ii) the rights in common properties, (iii) the covenants establishing dues and assessments against members and (iv) obligations of the association. The General Covenants provide for the review of plans, specifications and location of buildings or structures erected or altered in the area subject to the General Covenants. The General Covenants also restrict signs, outdoor burning, uncontrolled dogs, provide utility easements, and establish special easements over properties which are adjacent to golf courses or ski slopes. The “Company” or their assigns, is the institution that has been given the authority under the General Covenants to approve building plans and other issues. The “Company” was Wintergreen Development, Inc., and now those rights belong to WPOA.
From the beginning, the developers of Wintergreen have sought involvement of property owners in making decisions about how Wintergreen should be run. Early on the developer established an Architectural Review Board to which responsibility for review of house plans was delegated. This review board was composed of a number of representatives of the developer, real estate sales and property owners. This arrangement was later formalized in an agreement between the WPOA and WD under which the make up of the ARB was established as follows: The Executive Director of the WPOA, two appointees of the WPOA, one appointee from the Mountain Homesteaders, one appointee from the Valley Association, two appointees from WD and one appointee from WREC. Since that time, the Executive Director of the WPOA has resigned as a voting member and the WPOA Board of Directors appoints two (2) property owners from the mountain, two (2) property owners from the valley and one (1) property owner at-large as voting members. Ex-office members are one (1) realtor and one (1) contractor on a rotating basis and are also appointed by the WPOA Board.
The primary concern of the ARB is the appearance of the new home under construction. Separate guidelines have been prepared and adopted by the ARB for the Mountain and for Stoney Creek. These guidelines apply primarily to appearance issues since that is the thrust of the General Covenants. They do not apply to the size of the house beyond the minimums set forth in the individual deeds: 800 sq. ft. on the Mountain and 1,400 sq. ft. in (the new portions of) Stoney Creek. The guidelines also do not speak either to the type of construction (modular or stick built) or to the interior finishes since these issues are not spoken to in the covenants that are the source of authority for the ARB. Under the law of Virginia, restrictive covenants are not favored and are strictly construed by courts.
When the ARB reviews proposed plans, it does several things:
1) Checks to make sure the house is being placed on the correct lot.
2) Checks on the siting of the house. A site plan is submitted with relative elevations shown. Elements of the site plan are staked in the field by a surveyor to make sure that the locations are correct.
3) Plans and specifications are reviewed. This includes reviewing the appearance (elevation, colors, roof materials, etc.) and checking to see if it is consistent with the guidelines, reviewing the site, checking to see if the proposed building is in accord with the applicable covenants. By and large, this is a subjective review except where specific standards have been adopted.
The ARB has two constituents, existing property owners (both homeowners and lot owners) and the individuals who are interested in building at Wintergreen. Neither constituent has an absolute interest in the process. Everyone on the ARB has an interest in protecting property values in Wintergreen. We all want Wintergreen to continue to develop as attractively as possible. The goal of the ARB is to help those individuals build the most attractive home possible within their budget. There are some instances where a home will not be visible from other properties. The appearance standards of the ARB in those circumstances are generally not as strict since no one else will be affected by the appearance.
As WD completes its development of Wintergreen, it has assigned to the WPOA the legal responsibility for Architectural Review. This responsibility will include the responsibility for maintaining records, conducting inspections (every home that is built is reviewed upon completion) and conducting the administrative tasks associated with the review process.