DMP2021001 Z2021050 BOS REPORT_PART3.PDF
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Attachment B
5/24/2006 White Tank Foothills
CC&Rs
OFFICIAL RECORDS OF
MARICOPA COUNTY RECORDER
HELEN PURCELL
20060704323 05/24/2006 02: 17
LAND5-63-1 -I--
ELECTRONIC RECORDING
WHEN RECORDED, RETURN TO:
Dol~ald E. Dyekman, Esq.
Mariscal, Weeks, McIntyre 8r. Friedlander, P.A.
2901 North Central Avenue
Suite 200
Phoenix, AZ 85012
DECLARATION OF
COVENANTS, CONDITIONS AND RESTNCTIONS
FOR
WHITE TANK FOOTHILLS
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ...................................................................................................... 2
ARTICLE 2 PROPERTY AND PERSONS BOUND BY DECLARATION;
ESTABLISHMENT OF GENERAL PLAN OF DEVELOPMENT ................ 7
.........................................................................................
Purpose and Binding Effect
7
..........................................................................................
Supplemental Declarations
7
Disclaimer of Representations and Implied Covenants ............................................ 8
Development Plan ......................................................................................................... 8
Further Subdivision. Property Restrictions. Rezoning and Timeshares ................ 8
Obligation to Construct Common Area Improvements ........................................ 9
..............................................................................
Proximity to Luke Air Force Base
9
.........................................................................
Land Subsidence and Earth Fissures
9
Withdrawal of Property ............................................................................................
10
ARTICLE 3 ARCHITECTURAL CONTROL ..................................................................... 10
Design Review Committee .........................................................................................
10
Approval Required .....................................................................................................
11
Review of Plans ........................................................................................................... 12
Variances .................................................................................................................... 13
Construction of Improvements .................................................................................
13
No Changes Without Approval ................................................................................. 13
Review Fee ................................................................................................................... 14
No Warranty; Limitation of Liability ......................................................................
14
Improvements to Areas of Association Responsibility ............................................ 14
Compliance Deposit ....................................................................................................
14
ARTICLE 4 EASEMENTS AND DEVELOPMENT RIGHTS ........................................... 15
4.1
Easements for Use of Common Area ........................................................................ 15
4.2
Rights and Easements to Facilitate Development ............................................ 17
4.3
Easement for Maintenance and Enforcement ......................................................... 17
4.4
Easements for Encroachments ..................................................................................
18
ARTICLE 5 THE ASSOCIATION .........................................................................................
18
Formation and Powers of the Association ................................................................
18
Authorized Community Activities. Services and Programs ................................... 19
Relationship with Other Entities ...............................................................................
20
Oversight of Neighborhood Associations ................................................................ 21
Identity of Members ...................................................................................................
21
Allocation of Memberships ........................................................................................
21
Classes of Members and Voting Rights ....................................................................
21
The Association Rules ................................................................................................
22
Personal Liability .......................................................................................................
22
Conveyance. Lease or Encumbrance of Common Area ................................... ...... 22
ARTICLE 6 COVENANT FOR ASSESSMENTS AND CREATION OF LIEN ............... 23
Creation of Lien and Personal Obligation of Assessments ..................................... 23
Regular Assessments .................................................................................................. 23
Special Assessments .................................................................................................... 24
Enforcement Assessment ........................................................................................... 24
...............................................................................
Benefited Property Assessments
24
Obligation of Builders for Deficiencies .................................................................... 25
Assessment Period ...................................................................................................... 25
Rules Regarding Billing and Collection Procedures ............................................... 25
Effect of Nonpayment of Assessments; Remedies of the Association .................... 26
Purposes for which Association's Funds May Be Used ........................................... 27
Surplus Funds .............................................................................................................
27
Contribution to Reserves ........................................................................................... 27
Reserves ....................................................................................................................... 28
Transfer Fee ................................................................................................................
28
Sewer Service Fees .................................................................................................... 29
ARTICLE 7 MAINTENANCE ................................................................................................ 29
7.1
Areas of Association Responsibility ..........................................................................
29
7.2
Lots ..............................................................................................................................
29
7.3
Assessment of Certain Costs of Maintenance and Repair ....................................
30
7.4
Improper Maintenance and Use of Lots or Parcels ................................. .. ........... 30
7.5
Boundary Walls .........................................................................................................
30
7.6
Maintenance of Walls other than Boundary Walls ...............................................
31
. . .
7.7
Construction Activities ............................................................................................
31
.......................................................................................
7.8
lnstallation of Landscaping
32
ARTICLE 8 USE RESTRICTIONS ON USE OF LOTS AND PARCELS ........................ 32
8.1
Residential Use ............................................................................................................
32
8.2
Nuisances .....................................................................................................................
33
........................................................................................................................
Animals
33
Machinery and Equipment ........................................................................................ 34
Vehicles and Parking .................................................................................................. 34
........................................................................................................................
Garages
35
Rooftop HVAC Equipment Prohibited .................................................................... 36
Basketball Goals and Backboards ............................................................................ 36
Playground Equipment .............................................................................................. 36
Rental of Lots ..............................................................................................................
36
....................................................................................................
Screening Materials
37
...........................................................................................................................
Lights
37
Window Cover Materials .......................................................................................... 37
Trash Containers and Collection ..............................................................................
37
Rights of Builders ..................................................................................................... 37
.................................................
Temporary Occupancy and Temporary Buildings
38
Antennas ......................................................................................................................
38
Utility Service ..............................................................................................................
38
8.19
Overhead Encroachments ......................................................................................... 39
8.20
Signs ............................................................................................................................. 39
......................................................................................................................
8.21
Drainage
39
ARTICLE 9 DISPUTE RESOLUTION .................................................................................. 39
Defined Terms ............................................................................................................. 39
Agreement to Resolve Certain Disputes Without Litigation .................................. 40
Notice of Alleged Defect ............................................................................................. 40
Notice of Claim ........................................................................................................... 41
Mediation .................................................................................................................... 41
Binding Arbitration .................................................................................................... 42
Right to Enter. Inspect. Repair and/or Replace ...................................................... 44
................................................................................................................
Use of Funds
44
Approval of Arbitration or Litigation ...................................................................... 44
Statute of Limitations .................................................................................................
45
Federal Arbitration Act ............................................................................................. 45
Conflicts .......................................................................................................................
45
ARTICLE 10 INSURANCE .......................................................................................................
46
10.1
Scope of Coverage ...................................................................................................... 46
10.2
Certificates of Insurance ............................................................................................
48
10.3
Payment of Insurance Proceeds ................................................................................
48
10.4
Repair and Replacement of Damaged or Destroyed Property .................... ..
...... 48
ARTICLE 11 GENERAL PROVISIONS .................................................................................
48
................................................................................................................
Enforcement
48
. .
Duration; Termination ............................................................................................. 50
Amendments ............................................................................................................... 50
Interpretation ..............................................................................................................
51
Severability ..................................................................................................................
51
Change of Circumstances ..........................................................................................
51
Laws. Ordinances and Regulations ..........................................................................
52
References to this Declaration in Deeds ................................................................... 52
Gender and Number ..................................................................................................
52
Captions and Titles ....................................................................................................
52
Notices .......................................................................................................................... 52
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
WHITE TANK FOOTHILLS
This Declaration of Covenants, Conditions, and Restrictions for White Tank Foothills
(the "Declaration") is made this 3rd day of May, 2006, by Citrus & Northern, LLC, ail Arizona
limited liability company (the "Declarailt") and Pulte Hoille Corporation, a Michigan coi-poration
("Pulte").
INTRODUCTION
A.
The Declarant and Pulte each own portions of the real property described on
Exhibit A attached to this Declaration (the "Property").
The Declarai~t and Pulte intend to
develop the Property as a master planned coinin~ulity to be known as White Tank Foothills.
B.
By executing and recording this Declaration with the County Recorder of
Maricopa County, Arizona, the Declarant and Pulte intend to impose upon the Property nlutually
beneficial covenants, conditions, restrictions and easements to establish a flexible and reasonable
procedure for the overall development, administration, maintenance, use and preservation of the
Property. The Declarant and Pulte intend for this Declaration to create equitable servitudes and
covenants appui-tenant to and running with the Property and which will be binding upon all
future Owilers of all or any portion of the Property and ally other Person acquiring any right, title
or interest ill or to all of any portion of the Property.
C.
The Declarant and Pulte desire to provide for the creation of a nonprofit
corporation under the laws of the State of Arizona to administer and maintain, repair and replace
the Areas of Association Responsibility and to provide for the levying and collecting of
Assessments and other charges by the Association for the purpose, among otl~er things, of paying
all costs and expenses incurred or to be incun-ed by the Association in connection with the
maintenance, repair and replacelllent and admislistration of the Areas of Association
Responsibility and the enforcement of the covenants, conditions and restrictiosls contained in this
Declaration. The Association also inay pro~~ide
community services benefiting all or a portion of
the Property, promote con~pliance with the Community Documents tlxough education and
coinn~unicatioils progranls and develop and iillplenlent programs and services to encourage
interaction and a sense of coinmui~ity among Owners and Residents of the Property.
ARTICLE 1
DEFINITIONS
Unless otherwise defined, the following words and phrases when used in this Declaration
sliall have the meallings set forth in this Article.
1.1
"Areas of Association Responsibility" means: (a) all Cominoll Area; (b) all
land, and the Improven~ents situated thereon, located within the boundaries of a Lot or Parcel or
a public right-of-way which the Associatioil is obligated to maintain, repair and replace pursuai~t
to the terms of this Declaration, a Supplemental Declaration or other Recorded docu~nent
executed by the Declarant or the Association; and (c) all land or right-of-way easemeilts which
are dedicated to the public, the County or any other governn~ental body or agency, but which the
County or other goverim~ental body or agency requires to be maintained by the Association.
1.2
"Articles" means the Articles of Incorporation of the Association, as anleiided
from time to time.
1.3
"Assessable Lot" means a Lot whicli is not Exempt Propei-ty.
1.4
"Assessable Parcel" means a Parcel which is not Exenlpt Property.
1.5
"Assessment" means a Regular Assessment, Special Assessment, Enforcemeilt
Assess~neiit or Benefited Propei-ty Assessment.
1.6
"Assessment Lien" means the lie11 created and imposed by Article 6.
1.7
"Assessment Period" ~neans the period set foi-th in Section 6.7.
1.8
"Association" meails White Tank Foothills Community Association, an Arizoi~a
nonprofit corporation, and its successors and assigns.
1.9
"Association Expenses" means the actual and estimated expenses incussed or
anticipated to be ilicurred by or on behalf of the Associatio~l including any allocations to reserves
determined by the Board to be necessary and appropriate, and all other financial liabilities of tlie
Association.
1.10
"Association Rulest1 means the rules adopted by the Boasd pursua~~t
to Section
5.8.
1.11
"Benefited Property Assessment" means an assessment levied against less than
all of the Lots and Parcels pursuant to Section 6.5.
1.12
"Benefited Property Assessment Area" means a portion of White Tank
Foothills designated ill a Supplelnental Declaration as an area containing Limited Common Area
or as ail area in which the Association will provide Special Services.
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1.13
"Benefited Property Expenses" ineans the actual or estimated expenses,
including allocations to reserves, illcui-red or anticipated to be incurred by the Association for the
maintenance, repair and replacement of Limited Common Areas or to provide Special Services
to the Owners, Lessees and Residents in a Benefited Property Assessment Area.
1.14
"Board" means the Board of Directors of the Association.
1.15
"Builder" means Pulte Home Corporation, a Michigan corporation, and ally
other Owner engaged in the business of coiistructing residential dwelling units for the puspose of
resale or lease in the ordinary course of sucl~ Person's business and designated as a "Builder" by
the Declarant in a Supplemental Declaration or in a written notice to the Board.
1.16
"Bylaws" means the Bylaws of the Association, as aniended from time to time.
1.17
"Collection Costs" ineans all costs, fees, charges and expenditures including,
without limitation, attorneys' fees (whether or not a legal actioli is filed), court costs, filing fees
and recording fees incurred by the Association in collecting and/or enforcing payment of
Assessments, monetary penalties, late fees, demand fees, interest or other amounts payable to the
Association pursuant to this Declaration.
1.18
"Common Area" means all land, together with all Iinproveinents situated
thereon, which the Association at any time owns in fee or in wliich the Association has a
leasehold interest for as long as the Association is the owner of the fee or leasehold interest,
except that Common Area shall not include any Lot or Parcel the Association acquires by the
foreclosure of the Assessment Lien or by any deed in lieu of foreclosure
1.19
"Community Documents" means, collectively, this Declaration, the Articles, the
Bylaws, the Association Rules and the Design Guidelines.
1.20
"Condominium Development" ineans a condolninium within any pal? of White
Talk Footliills established pursuant to the Arizona Condominiuni Act, A.R.S. 5 33-1201, et seq.
1.21
"Condominium Unit" means a unit within a Condominium Development.
1.22
"Construction" means any devegetation, excavation or grading work or the
construction, erection or installation of an Improvement on a Lot or Parcel.
1.23
"County" means Maricopa County, Arizona.
1.24
"Design Guidelines" means the procedures, standards and guidelines adopted by
the Design Review Committee pursua~lt to Section 3.1, as amended or suppleinented froin time
to time.
1.25
"Declarant" means Citrus & Northern, LLC. an Arizona limited liability
company, and any Person to whom it may expressly assign any or all of its rights under this
Declaration by a Recorded instrun~ei~t.
1.26
"Declarant Control Period" means the period coinnlencillg upon the Recording
of this Declaration and ending on the earlier of (a) the date that the Declarant coilveys its last Lot
or Parcel to a Purcllaser so that the Declarailt no longer owns any Lot or Parcel in the Project or
(b) the date on which the Declarant notifies the Association in writing that the Declarailt is
terininating the Declarant Control Period.
1.27
"Declaration" means this Declaration of Covenants, Conditions, and Restrictioils
for White Tank Foothills. as amended from time to time.
1.28
"Design Review Committee" meails the Design Review Cornillittee established
pursuant to Section 3.1.
1.29
"Development Plan" meails the Preliminary Plat for White Tank Foothills
approved by the County, as it inay be amended from time to time.
1.30
"Eligible Votes" ineans the total votes in the Association, except for any votes
allocated to Owners whose voting rights have been suspended by the Association.
1.31
"Enforcement Assessment" ineans an assessment levied pursuailt to Section 6.4.
1.32
"Exempt Property" means: (a) all Lots and Parcels owned by the Declarant; (b)
all land and iinproveine~lts owned by or dedicated to the County or other public or governmental
agency or authority for so long as the public or governmental authority agency or authority is the
owner thereof; (c) any unmanned utility substations which provide utility services to any portion
of White Tank Foothills; or (d) any Lot or Parcel owned by a school district and used as a school.
1.33
"First Mortgage" illeans any mortgage or deed of trust on a Lot or Parcel which
has priority over all other mortgages and deeds of trust on the same Lot or Parcel.
1.34
"First Mortgagee" means the holder or beneficiary of any First Mortgage.
1.35
"Improvement" means: (a) a Residence or other building; (b) a fence or wall; (c)
a swiininitlg pool, tennis court, basketball goal, backboard or apparatus or playground
equipment: (d) a road, driveway or parking area; (e) a tree, plant, shrub, grass or other
landscaping iinproveinent of any type and kind; (f) a statuary, fountain, artistic work, craft work,
figurine or ornarneiltatioil of any type or kind; and (g) any other structure of any type, kind or
nature.
1.36
"Lessee" means the lessee or tenant under a lease, oral or written, of any Lot or
Parcel including an assignee of the lessee's or tenant's interest under a lease.
1.37
"Limited Common Area" means real propel-ty, and the Inlprovements situated
thereon, which are part of the Coinmon Area and which are designated in a Supplemental
Declaration as being for the sole or primary benefit of the Owners, Lessees and Residents of a
particular pai-t of White Tank Foothills.
Limited Coinmon Areas may include, without
limitation, private streets, access gates, guardhouses, drainage or retention areas or landscape
medians.
1.38
"Lot" means (a) a parcel of land within White Tank Foothills, wlletller improved
or unimproved, intended for independent owaership and use and designated as a "lot" on a Plat
and any Residence, building, structure or other Improven~ents situated thereon, or (b) a
Condominium Unit.
1.39
"Maintenance" means care, inspection, maintenance, operation, repair,
repainting, re mode ling^ restoration, in~proveinent, renovation, alteration, replacenlent and
reconstruction.
1.40
"Maintenance Standard" ineans the standards for the care and Maintenance of
Improvements situated on Lots or Parcels established from time to time by the Board or, in the
absence of any standard established by the Board, the standard of care and Maintenance of
In~provements situated on Lots or Parcels generally prevailing tl1roughout White Tank Foothills.
1.41
"Modification" means any addition, alteration, repair, change or other work
wllicl~ in any way alters the exterior appearance of any Improvement located on a Lot or Parcel.
1.42
"Neighborhood Association" means any homeowners association, condoil~iniunl
association or similar association formed or organized pursuant to a Neighborhood Declaration.
1.43
"Neighborhood Common Area" ineans all real property, and all Improveinents
located thereon, owned or leased by a Neighborhood Associatioi~ for the common use and
benefit of the members of the Neighborl~ood Association.
1.44
"Neighborhood Declarationvt nleans any Declaration of Covenants, Conditions
and Restrictions, Condonlinium Declaration or similar instrument (other than this Declaration or
a Supplemental Declaration) recorded against any pai-t of White Tank Foothills.
1.45
"Owner" means the record owner, whether one or Inore Persons, of beneficial or
equitable title (and legal title if the same has merged with the beneficial or equitable title) to tlle
fee simple interest of a Lot or Parcel. Owner shall not include Persoils having an interest in a Lot
or Parcel merely as security for the perfom~ance of an obligation or a Lessee. In tl~e case of a
Lot or Parcel subject to a Recorded option, the optionor shall be deemed to be the Owner.
Owner sllall include a purchaser under a Recorded contract for the conveyance of real property
subject to the provisions of A.R.S. 5 33-74 1 et. seq. Owner sl~all not include a purchaser under a
purchase contract and receipt, escrow instructions or similar executoiy contracts which are
intended to control the rights and obligations of the parties to the executory contracts pending the
closing of a sale or purcllase transaction. In the case of Lots or Parcels subject to a deed of trust
pursuant to Arizona Revised Statutes, Section 33-801, et seq., the Trustor shall be deemed to be
the Owner. In tlle case of Lots or Parcels the fee simple title to which is vested in a trustee
pursuant to a subdivision trust agreement or similar agreement, tlle beneficiary of any such trust
who is entitled to possession of the trust propei-ty shall be deemed to be the Owner.
1.46
"Owner's Agent" means any employee, agent: coiltractor or subcontractor acting
on behalf of or pursuant to a contract with an Owner.
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1.47
"Parcel" ineans each separately owned col~tiguous area of real propei-ty within
White Tank Foothills other than a Lot, Coininon Area or Neighborhood Coininon Area;
provided, however, that for purposes of Articles 3, 7 and 8 only, "Parcel" shall also meail
Neigl~borhood Coininon Area.
1.48
"Person" means a natural person, coi-poration, busii~ess trust, estate, trust,
partnership, association, joint venture, limited liability company, govermne~~t,
govermnental
subdivision or agency, or other legal or coininercial entity.
1.49
"Plat" means ally subdivisioil plat or condon~iiliuill plat recorded against all or
ally part of White Tank Foothills.
1.50
"Purchaser" ineans any Person (other than the Declarant) who becomes the
Owner of a Lot or Parcel, except for: (a) a Person who purchases a Lot and then leases it to the
Declarai~t for use as a inodel in connection with the sale or lease of other Lots; or (b) a Person
who, in addition to purchasing a Lot or Parcel, is assigned any or all of the rights of the
Declarant under this Declaration.
1.51
"Recording" means placing an iilstruinent of public record in the office of the
County Recorder of Maricopa County, Arizona, and "Recorded" means having been so placed
of public record.
1.52
"Regular Assessment" ineans the Regular Assessineilts levied by the
Associatioil pursuant to Section 6.2.
1.53
"Residence" ineans any building, or pol-tioil of a building, situated upon a Lot
and designed and intended for independent ownership and for use and occupancy as a residence.
1.54
"Resident" means each natural person occupying or residing in any Residence.
1.55
"Special Assessment" means any assessmeilt levied and assessed pursuant to
Section 6.3.
--
1.56
"Special Services" meails services designated in a Supplemental Declaration as
being for the sole or primary benefit of the Owilers, Lessees and Residents of a particular part of
White Tank Foothills. Special Services inay include, without limitation, guard services
(including the rnainteilailce of guard gates or guardhouses) and landscape nlailltenance services
for landscaping situated oil Lots and/or Parcels.
1.57
"Supplemental Declaration" means a Supplemental Declaration executed by the
Declarant and Recorded pursuant to Section 2.2.
1.58
"Visible From Neighboring Property" means, with respect to any given
Iinprovemeilt, that such Iinprovement is or would be visible to a natural person six feet tall,
standing at ground level on any part of any Lot, Parcel, Common Area, Neighborhood Cominon
Area or any public street within or adjacent to White Tank Foothills; except where the
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Iinprovement is visible solely tl~ough a wrought isoil feiice and would not be visible if the
wrought iron fence were a solid fence.
1.59
"White Tank Foothills" means the real property described on Exhibit A attached
to this Declaration, together with all I~nproveillents located thereon.
ARTICLE 2
PROPERTY AND PERSONS BOUND BY DECLARATION; ESTABLISHMENT OF
GENERAL PLAN OF DEVELOPMENT
2.1
Purpose and Binding Effect.
Declarant and Pulte intend by this Declaration to impose upon White Tank Foothills
covenants, conditions, restrictions and easements to create a general plan of development for
White Tank Foothills and to provide a flexible and reasonable procedure for the administration,
maintenance, preservation, use and enjoyillent of White Tank Foothills. The Declarant and Pulte
declare that all of White Tank Foothills shall be held, sold, used and conveyed subject to the
easements, restrictions, conditions and co~~enants
set forth in this Declaratio~l which are for the
purpose of protecting the value, desirability and appearance of White Tank Foothills. Declarant
and Pulte further declare that all of the easements, restrictions, conditions and covenants in this
Declaration shall ruii with White Tank Foothills and shall be binding upon and inure to the
benefit of the Declarant, Pulte and all Owners, Lessees and Residents and all other Persons
having or acquiring any right, title or interest in White Tank Foothills or any part thereof, their
heirs, successors, successors in title and assigns. Each Person who acquires any right, title or
interest in the Property, or any part thereof, agrees to abide by all of the provisioiis of the
Cominunity Docui~~ents.
This Declaratioi~ shall be binding upon and shall be for the benefit of
and enforceable by the Association.
2.2
Supplemental Declarations.
The Declarant shall have the riglit to record one or more Supplemental Declarations for
various parts of Wliite Tank Footliills. If the property covered by the Supplemental Declaratioii
is not owned by the Declarant, then the Suppleinental Declaration must also be signed by the
owners of fee title to the property covered by the Supplemental Declaration. A Supplemental
Declaration may designate Coininon Areas or other Areas of Association Responsibility and
iinpose such covenants, conditions, restrictions and easements as the Declarant deems
appropriate for the property to be covered by the Supplen~ental Declaration. A Suppleinental
Declaratioil may also designate Limited Conmion Areas, and Special Services.
If a
Supplemental Declaratio~l designates any Limited Common Areas or Special Services, the
Supplen~ental Declaratioii shall also designate the Benefited Property Assessillent Areas
containing the Lots and Parcels which will be subject to a Benefited Property Assessmei~t. A
Supplewental Declaration may only be amended by a written instrumeilt executed by: (a) the
Owners representing more than sixty-seven percent (67%) of the votes ia the Association held by
the Owi~ers of all of the Lots or Parcels subject to the Supplemental Declaration; (b) the
Association; and (c) the Declarai~t so long as the Declara~it owns any Lot or Parcel. If an
ainendn~ent to a Supplemental Declaration adds, deletes or cllanges ally Limited Coininon Areas
or Special Services or any Benefited Property Assessn~ent Area, then such ainendrnent nus st also
be approved by at least two-thirds (213) of the votes held by Owners of Lots and Parcels within
sucll Benefited Property Assessnlent Area or by such greater percentage of votes as may be
required by the Supplemental Declaration, and, if the proposed amendnlent will convei-t any
Limited Conlnloil Areas to Coinmon Areas mailltailled by the Association without a Benefited
Propei-ty Assessn~ent, by the Class A Meinbers holding more than fifty-percent (50%) of the
votes allocated to Lots and Parcels owned by the Class A Meinbers and located outside of the
area forn~erly subject to the Benefited Property Assessment. Any amendment to a Supplemental
Declaration approved in accordance wit11 this Section shall be executed by tlle Associati011 and
shall be effective only upon the Recording of the Supplemeiltal Declaratioi~. The Association
shall not accept as Coinmon Area any (a) private streets or alleys, (b) parlting areas, (c)
clubhouses or (d) tennis courts unless such Conunon Areas are designated as Limited Conlmon
Areas for which the benefited Lots or Parcels shall be subject to a Benefited Property
Assessment.
2.3
Disclaimer of Representations and Implied Covenants.
The Declarant makes no representatioil or warranty that White Tank Footl~ills will be
developed in accordance with the Developinent Plan as it exists as of the Recording of this
Declaration. Each Owner. Lessee, Resident and other Person acquiring any Lot, Parcel or other
property in White Tank Foothills acknowledges that the Developinent Plan nlay be amended
fro111 time to time by the Declarant and the County. The Declarant nlaltes no wasranties or
representations, express or implied, as to the binding effect or enforceability of all or any portioil
of the Corninunity Documents or as to the coinpliance of ally provision of the Community
Docuinents with public laws, ordiilances, or regulations applicable to White Tank Foothills.
Nothing which inay be represented to a purcllaser by real estate brokers or salesinen shall be
deemed to create any iinplied covenants, servitudes or restrictions with respect to the use of any
property subject to this Declaration.
2.4
Development Plan.
Notwitllstailding any other provisioil of this Declaration to the contrary, the Declarant,
with the approval of the Cou~lty but without obtaining the coilsent of any other Owner or Person,
shall llave the right to inalte changes or modifications to the Developmeilt Plan with respect to
any property owned by the Declarant in any way which the Declarant desires including, but not
limited to, changing the density of all or any poi-tion of the property owned by such Declarant or
clanging the nature or extent of the uses to which the property inay be devoted; providedg
however, that the cl~ange or modification shall not increase or decrease the ilumber of lots
permitted under the existing Developinent Plan by more than ten percei~t (1 0%).
2.5
Further Subdivision, Property Restrictions, Rezoning. and Timeshares,
Without the prior written approval of the Declarailt and the Association, no Owner other
than tlie Declarant or a Builder shall do ally of the following: (a) further subdivide a Lot or
Parcel or separate a Lot or Parcel illto smaller lots or parcels; (b) convey or transfer less than all
of a Lot or Parcel; (c) replat a Lot or Parcel or combine a Lot or Parcel with other Lots or
Parcels; (d) record covenants, conditions, restrictions or easeweilts against any Lot or Parcel; (e)
file any application for zoning, rezoning, variances or use permits pei-taining to any Lot or Parcel
with the County or any municipality having jurisdiction; or (f) subject or use a Lot or Parcel for
any timesharing, cooperative, weekly, nlonthly or any other type of revolving or periodic
occupancy by multiple owners, cooperators, licensees or timesl~aring participants.
2.6
Obligation to Construct Common Area Improvements.
Any Builder that owi~s real property identified or designated on a Plat or any
Supplemeiltal Declaration as real property which is to be Coinmon Area or to be ail Area of
Association Respoilsibility shall be respoilsible for installing and constructing inlprovenlents 011
such real property ill accordance with plans and specifications for such real property approved by
the County. The construction and installation of improveinellts on any such real property shall
be constructed in a good and workn~aillike nlanner and in accordance with applicable industry
standards. The construction and installation of iinprovements on any such real property shall be
completed within such time period as may be specified by the Declarant or the Design Review
Committee.
2.7
Proximity to Luke Air Force Base.
By becoming the Owner of a Lot or Parcel or by occupying a Residence, each Owner,
Lessee and Resident acknowledges and agrees that White Tank Foothills is located in close
proximity to the Luke Air Force Base Auxiliary Field 1, which is the site of intense instrument
procedure landing approaches, with approxi~nately 12,000 flight operations per year. Aircraft
will descend down to 200 feet above the ground over the Auxiliary Field and will create severe
noise in the surrounding area. All Residences should include "sound attenuation" measures as
directed by State law. For fui-ther information. Owners, Lessees and Residents should check the
Luke Air Force Base website at uiww.lul<e.af.inillurbandevelopmei~t
or contact the Maricopa
County Planning and Development Department.
2.8
Land Subsidence and Earth Fissures.
White Tank Footl~ills is within an area of ltnown land subsidence and earth fissuring.
Land subsidence is known to occur in alluvium filled valleys where agricultural activities and
urban development have caused over-drafting or reinoval of groundwater from thick basin
aquifers.
The magnitude of subsidence is directly related to the subsurface geology, the
thickness of the alluvial sediments deposited in the valleys, and the net groundwater decline.
The weight of the soil is gradually increased as the buoyant effects and aquifer pressures induced
by the water acting on the soil are decreased, thus causing increased loading stresses to
consolidate portions of the thick conlpressible sediments which result in the lowering
(subsidence) of the land surface over a large area. Eai-th fissures are initiated underground when
tensile stresses, induced by groundwater over-drafting, exceed the strength of the soils and
propagate toward the surface causing the ground to crack to forin an earth fissure. Eai-th fissures
can cause damage to highways, pipelines and canals and can require ongoing maintenance.
Studies and investigations of land subsidence and earth fissuring were conducted by
Geological Consultants Incorporated from August 2, 2000 to May 2, 2005. The studies and
investigations were broken into three stages with Task 1 being a Preliminary Assessineilt Report,
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Task 2 being Land S~lbsidence and Eartli Fissure Field Reconnaissance and Tasli 3 being Suspect
Earth Fissure Investigation. Included in the Coilclusioils and Recommendatioi~ of Task 2 was
the following: "Land subsidence is coininon in many of the large alluvial basins of southern and
south central Arizona including the Salt River Valley (Phoenix), the Queen Creek Apache
Junction area, the Eloy - Casa Grande - Stanfield area, Tucson, and the Avra Valley. The land
subsideilce documeilted in the White Tank Foothills area is consistent with findings in other
areas and not unusual. Tlle proposed White Tank Foothills development is presently located
within an area of residual land subsidence. If the regional water table in the area reinaiils static
or starts to rise as has been the trend in local well data, the subsidence rate will decrease and land
subsidence in the area will eventually cease. Earth fissures are documented within the vicinity of
the White Talk Footl~ills development.
The closest mapped earth fissure is located
approximately 0.9 iniles east of the study area. The lmown earth fissures do not trend toward the
White Tank Foothills property. None of the known fissures trend toward the property bo~mdary.
Three areas containii~g suspect earth fissure features were located within, or adjacent to the
property boundary." In the Conclusions and Recommendations of Task 3 (Suspect Earth Fissure
Investigation) it states "Based on the results of our Task 2 field reconnaissance and Taslc 3
subsurface exploration, we coilclude that there are no earth fissures located on the White Tank
Foothills propei-ty as of May 11, 2005".
Copies of the reports may be obtained from the
Association.
2.9
Withdrawal of Property.
The Declarant shall have the unilateral right to withdraw from this Declaration, without
the coilsent or approval of the Association or any other Owner or Person, any real property that
the Declarant determines will be coilveyed to a school district or other governlneiltal body for
use as a public school. The withdrawal of all or any portion of White Tank Foothills fro111 this
Declaration shall be effected by the Declarant Recording a Declaration of Withdrawal setting
forth the legal description of the property being withdrawn. If the Declarant does not own the
property to be withdrawn, then the Declaration of Withdrawal must be signed by the owners of
fee title to the property to be withdrawn. Upon the withdrawal of any propei-ty from White Tank
Foothills pursuant to this Section, such propel-ty shall no longer be subject to any of the
covenants, conditions and restrictioils set forth in the Coininunity Documents.
ARTICLE 3
ARCHITECTURAL CONTROL
3.1
Design Review Committee.
The Declarant shall have the sole right to determine the number of members on the
Design Review Committee and to appoint and remove the members of the Design Review
Committee until all Parcels have been subdivided and a Residence has been constructed on every
Lot. Thereafter, the Board shall determine the ~~uinber
of inembers on the Design Review
Committee, and the members of the Design Review Colnlnittee shall be appointed and inay be
removed by the Board. The Declarant may at ally time voluntarily sui~ender its riglit to appoint
and remove the members of the Design Review Committee, and in that event the Declarant may
require, until all Parcels have been subdivided and a Residence has been constructed oil every
10
Lot, that specified actions of the Design Review Committee, as described in a Recorded
instruinent executed by the Declarant, be approved by the Declarant before they become
effective.
The Design Review Coinnlittee nlay adopt, amend and repeal architectural guidelines,
standards and procedures to be used in renderiilg its decisions. The Design Guidelines may
include, without limitation, provisions regarding: (a) the size and height of Residences, buildings
or other iinproven~eiits; (b) arcl~itect~~ral
style or design; (c) placement of Residences and other
buildings including establishing building envelopes; (d) landscaping design, content and
conforinance with the character of White Tank Foothills and permitted and prohibited plaiits; (e)
requirements coilcerning exterior color schemes, exterior finishes and materials; (f) signage; (g)
perimeter and screen wall design and appearance; (h) time periods for cominenceinent and
completion of any approved Construction or Modification; and (i) rules and regulations
governing construction activities; and ('j) standards and procedures for subinissions and approval
of plans. After the Declarant's right to appoint and remove the inembers of the Design Review
Coinmittee has terminated, any repeal or amendment of the Design Guidelines must be approved
by the Board. Any approval by the Design Review Cominittee of standard plans for use by a
Builder shall apply to all Lots on which sucl~ Builder desires to use such plans and shall not be
subject to subsequent rescission or modification without the Builder's consent.
3.2
Approval Required.
No Construction or Modification shall be made or done without the prior written
approval of the Design Review Committee; provided, however, that the provisions of this Article
do not apply to, and approval of the Design Review Committee shall not be required for, the
Construction or Modification of any Iinproveineilts or any other work made by, or on belialf of
the Declarant.
The Design Review Coininittee may exempt certain Construction or Modification from
the application and approval requirements of this Article 3, provided such Construction or
Modification is undei-taken in strict coinpliance wit11 the requiren~ents of such exemption. No
approval shall be required to repaint the exterior of a structure in accordance with the origiilally
approved color scheme or to rebuild an Improvement in accordance with origiilally approved
plans and specifications.
Any Owiler may remodel. paint or redecorate the interior of a
Residence or other building without approval so long as such activity does not affect the exterior
appearance of the Residence or building.
Any Owner desiring approval of the Design Review Committee for any Construction or
Modification shall subinit to the Design Review Committee a written request for approval
specifying in detail the nature and extent of the Construction or Modification which the Owner
desires to perforin. The request for approval must be accompanied by plans or specifications
showing the nature, kind, color, shape, height, materials and location of the In~provements and
such other information as inay be required by the Design Guidelines. Any Owner requesting the
approval of the Design Review Cominittee shall also subinit to the Design Review Coinmittee
any additional information, plaiis and specifications which the Design Review Committee may
request.
In the event that the Design Review Cominittee fails to approve or disapprove an
application for approval within forty-five (45) days after the complete applicatioil, together with
any fee payable pursuant to Section 3.7 and all supportii~g information, plans and specifications
requested by the Design Review Committee, have been submitted to the Design Review
Committee, the Owner submitting such plans may deliver to the Design Review Committee a
demand that the Design Review Coinillittee act on the plans subinitted by the Owner. If the
Design Review Committee does not disapprove the plans within thii-ty (30) days after receipt of
the demand from the Owner, then the plans shall be deeined approved. The approval by the
Design Review Conlmittee of any Constructiol~ or Modification shall not be deemed a waiver of
the Design Review Committee's right to withhold approval of any Constructioi~ or Modification
subsequently submitted for approval.
The Design Review Cominittee inay delegate its authority to approve or disapprove any
proposed Construction or Modification to the Association's managing agent upon such
conditioils and subject to such limitations as the Design Review Committee iliay determine to be
appropriate. The Design Review Comnlittee may establish one or more subcoinlnittees
consisting of one or more members of the Design Review Coinnlittee and inay delegate to such
subcominittee or subcommittees the authority and power of the Design Review Conlmittee to
approve or disapprove any Construction or Modificatioil within White Tank Foothills or within a
specified poi-tion of White Tank Foothills. The Design Review Committee may also delegate to
a Neighborhood Association the authority to review and approve or disapprove any Construction
or Modification withill tlle property subject to the jurisdiction of the Neigl~borhood Association.
Any delegation by the Design Review Cominittee of its authority or power under this Article 3
shall be subject to such conditions and limitations as may be imposed by tlle Design Review
Committee and may be revoked at ally time by the Design Review Committee by written notice
to the Person or Neighborliood Associati011 to whom the power or authority had been delegated.
3.3
Review of Plans.
In reviewing plans and specifications for any Construction or Modification, the Design
Review Coininittee may consider any aiid all factors which the Design Review Committee, in its
sole and absolute discretion, determines to be relevant including, but not limited to: (a) the
hannony of the proposed Improvements wit11 existing Improvemeilts in White Tanlc Foothills or
with Iinprovemeilts previously approved by the Design Review Committee but not yet
constructed; (b) the location of the proposed In~provements in relatioil to existing topography,
finished grade elevations, roads, Con~mon Area and other structures; (c) the exterior design,
finish inaterials and color of the proposed Improvements; and (d) coinpliance of the proposed
In~provemeiits with this Declaration and the Design Guidelines. The Design Review Committee
may disapprove plans and specifications for any Constructioi~ or Modification even though the
plans and specifications may be in substailtial compliance with this Declaration and the Design
Guidelines if the Design Review Comnlittee, in its reasonable discretion, deteriniiles that the
proposed Construction or Modification, or some aspect or portion thereof, is u~ldesirable or
unattractive.
Decisions of the Design Review Coinmittee may be based on purely aestl~etic
considerations. Each Owner acltnowledges that determinations as to such matters are purely
subjective and opinions may vary as to the desirability and attractiveness of certain
Improvements. Eacli Owner agrees that the decision of the Design Review Conlmittee shall be
final on all matters submitted to it pursuant to this Declaration, subject to a11 appeal of the
decision to the Board as provided in this Section.
The approval required of the Design Review Committee pursuant to this Article 3 shall
be in addition to, and not in lieu of, ally approvals or permits which may be required under any
federal, state or local law, statute, ordinance, rule or regulation.
All Improveillents constructed on Lots or Parcels shall be of new construction, and no
buildings or other structures shall be removed from other locations onto ally Lot or Parcel.
After the Declarant's right to appoint and remove the members of the Design Review
Committee has tern~inated, any Owiler aggrieved by a decision of the Design Review Committee
may appeal the Design Review Committee's decisioii to the Board. Any appeal to the Board
shall be made in accordance with such procedures as may be adopted by the Board.
3.4
Variances.
The Design Review Committee may grant variances from con~pliance with any provision
of the Design Guidelines in circumstances where the design meets the intent of the provision
sought to be varied and where granting of the variance would enhance design innovation and
excellence, or when circumstai~ces such as topography, natural obstructions, econon~ic or
procedural hardship, or aesthetic or environmental considerations so require, and the Design
Review Committee determines, in its reasonable discretion, that the objective of the particular
requirement call still be achieved. No variance approved by the Design Review Conlnlittee shall
be effective until the varia~lce is set forth in a written document signed by or on behalf of the
Design Review Committee.
No variance shall amend or modify any provision of this
Declaration or prevent the Design Review Con~mittee from denying a variance in other
circumstances. For purpose of this Section, the inability to obtain approval of any governmental
agency, the issua~lce of any license or peimit, or co~nply wit11 the teims of any financing shall not
constitute an econonlic or procedural hardship.
3.5
Construction of Improvements.
Upoil receipt of approval from the Design Review Committee for any Construction or
Modification, the Owner wlio had requested such approval shall proceed with the Construction
or Modification approved by the Design Review Committee as soon as practicable and within
such time as may be prescribed by the Design Review Committee. After commencement of the
approved construction or modification, the Owner shall diligently pursue such Construction or
Modification so that it is conlpleted as sooil as reaso~lably practicable and within such time as
may be prescribed by tile Design Review Committee.
3.6
No Changes Without Approval.
Any Constructioi~ or Modification approved by the Design Review Committee must be
done or performed in accordance with the plains and specifications approved by the Design
Review Committee. No change, deletion or addition to the plans and specifications approved by
the Design Review Cornillittee inay be made without the prior written approval of the Design
Review Committee.
3.7
Review Fee.
The Design Review Committee shall have the right to charge a fee for reviewing requests
for approval of ally Construction or Modification, wl~ich fee shall be payable by the Owner at the
time the application for approval is subinitted to the Design Review Committee. The fee charged
by the Design Review Coinmittee inay include the actual or estimated fees or costs incurred or
anticipated to be incurred by the Design Review Con~mittee in processing the application and in
consulting with, or having the application reviewed by, architects, engineers or other
professionals. Tbe Design Review Committee may retain architects, engineers or otl~er persons
as deemed necessary to review applications.
3.8
No Warranty; Limitation of Liability.
The approval by the Design Review Cominittee of any Construction or Modification shall
not be deemed a warranty or representatioil by the Design Review Coininittee as to the quality of
such Constructio~l or Modification or that such Construction or Modification coilfori~~s
to any
applicable building codes or other federal, state or local law, statute, ordinance, rule or
regulation. Tlle Design Review Colninittee shall not be liable or bear any responsibility for (a)
ensuring the structural integrity, quality, soundiless or worknailship of any Construction or
Modification approved by the Design Review Cominittee, (b) ensuring compliance wit11 building
codes or other governlnental requirements or (c) ensuring that all Improvenlents are of
conlparable quality, value. size or similar design.
3.9
Improvements to Areas of Association Responsibility.
If plans and specifications subinitted to the Design Review Comlnittee pertain to an
Iinproveinent which is within an Area of Association Responsibility so that the Association is
responsible for the maintenance, repair and replacenlent of such Improvement. the Design
Review Conlmittee inay condition its approval of the plans and specifications for the proposed
Construction or Modification 011 the agreement of the Owner to reimburse the Association for the
future cost of the repair, maintenance or replacement of such Improvement.
3.10
Compliance Deposit.
The Design Review Coininittee shall have the right, 011 a case-by-case basis and in its
sole discretion, to condition the approval by the Design Review Conlmittee of plans submitted
by an Owner, upon the receipt by Design Review Coinmittee of a deposit (the "Compliance
Deposit") to secure the perfoimailce of the Owner's obligations under Section 7.7 to clean up
and/or remove equipment, building materials, dirt, debris and similar materials, and to protect
froin damage and repair any damage to iinproveineilts sustained, in coi~nection wit11 construction
activities by or for the benefit of Owner and to ei~sure that the Construction or Modification will
be made in accordance with the plails and specifications approved by the Design Review
Committee. The Coinpliance Deposit shall be in such amount as may reasonably be determined
by the Design Review Committee. The Design Review Conlmittee may apply the Co~npliance
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Deposit toward payilleilt of (a) any costs incurred by the Design Review Committee or the
Association with respect to any coi~struction cleanup or reinoval required aind/or the repair or
replaceinent of any dainaged or destroyed in~provements, the cost for which the Owiler is
responsible under Sectioil 7.7; (b) any costs incurred by the Association or the Design Review
Coinmittee in connection with the inspection of the Coilstruction or Modification to ascertain
whether the Coilstruction or Modification is being made in accordance with the approved plans;
and (c) any attorney fees, court costs and other costs (including, but not limited to, costs incurred
to correct the violation) incurred by the Association in conllection with any violation of the
Coinmunity Docui~~eilts
related directly or indirectly with the Coilstruction or Modification.
Followiilg receipt by the Design Review Conlinittee of a written request froin ail Owner
delivered subsequeilt to the completion of the Coi~structioi~
or Modification, and followiilg
confirination by the Design Review Coinmittee that any necessary cleanup work or damages
attributable to the Owner or the Owner's Agent has been properly perforn~ed, repaired or
replaced, as applicable, that all costs attributable to the Owner in connectioil tl~erewitli have been
paid in full and that the Coilstruction or Modification was made ill accordance with the plans and
specifications approved by the Design Review Committee, the Design Review Coinmittee shall
retuix to such Owner the unapplied pol-tion of the Owner's Compliance Deposit. The liability of
an Owner to promptly cleanup such Owner's Lot or Parcel and any suwounding area of White
Tank Foothills and to repair or replace any iinproveineilts dainaged or destroyed by an Owner or
the Owner's Agent shall not be limited to the amount of such Owner's Compliance Deposit, and
in no event shall the posting of a Coinpliailce Deposit limit or prejudice the right of the Design
Review Coinmittee or the Association to pursue any available legal remedies against the Owner
or any of Owner's Agents causing tl~e need for cleanup or causing the damage or destruction.
ARTICLE 4
EASEMENTS AND DEVELOPMENT RIGHTS
4.1
Easements for Use of Common Area.
Every Owner. Lessee and Resident and their guests shall have a right and easement of
enjoyment in and to the Cominon Area, which right shall be appurtenant to and shall pass with
the title to every Lot or Parcel, subject to:
(a)
The right of the Association, subject to
Section 5.10, to dedicate, convey. transfer, lease or encumber the
Comnloil Area; provided, however, that if access to a Lot or Parcel
is over any part of the Coinmon Area, any conveyance, lease or
encumbrance of such Conlinon Area shall be subject to an
easement for ingress and egress in favor of the Owner, Lessees and
Residents of the Lot or Parcel and their guests and invitees.
(b)
The right of tlie Board to adopt rules,
regulations or policies regulating the use of the Coinmon Area
including rules, regulations and policies limiting the i~uinber of
guests who inay use the Coininoil Area and restrictii~g or
prohibiting access to such portions of the Conlinon Area (such as
laildscaped areas) not intended for use by the Owners, Lessees or
Residents.
(c)
The right of the Associatioil to suspend the
right of an Owner and such Owner's family, tenants aiid guests to
use the Coilmon Area (other than the right of an Owner and such
Owner's fanlily, tenants and guests to use any streets which are
part of tlie Con~inon Area for ingress or egress to the Owner's Lot
or Parcel) if such Owner is inore tllan fifteen (1 5) days delinquent
in the payment of Assessn~ents or other ainounts due to the
Association or if tlie Owner has violated any other provisioils of
tl~e Community Documents and has failed to cure such violation
within fifteen (1 5 ) days after the Association notifies the Owner of
the violation.
(d)
The rights aiid easements reserved by or
granted to the Declarant by the Community Documents.
(e)
The right of the Association to rent or lease
any portion of the Coininon Area on a short-term basis to an
Owner or Resident for the exclusive use of such Owner or
Residents and their guests and invitees.
(f)
The right of the Association to charge
reasonable admission or other fees for the use of any recreatioilal
facility or amenity situated on the Common Area.
(g)
The riglit of the Association to peimit tl~e
use of any recreational facility or amenity situated on the Common
Area by Persons other than Owners or Residents and their guests
upon payment of such fees as may be established by the Board.
(h)
The rights and easements, if any, reserved or
granted to the Declarant, a Builder or any other Person in the deed
coiiveying the Common Area to the Association.
The right of easement and enjoyment of the Coninloll Area nlay not be transferred or
assigned except upon the conveyance or transfer of the Lot or Parcel to which such riglit is
appurtenant.
Notwithstanding any other provision of this Sectioil to the contrary, the right to use and
enjoy any Limited Cominon Area shall only extend to the Owners and Residents designated in
tlie Suppleinental Declaration establishing such Limited Coinmon Area as the Owners and
Residents solely or permanently benefited by the Limited Coinmon Area.
16
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4.2
Rights and Easements to Facilitate Development.
The Declarant hereby reserves to itself and its successors and assigns a 11011-exclusive
blanket easement over and though White Tank Footl~ills for all pui-poses reasoilably related to
the development and completio~i of Improveinents in White Tank Foothills, including without
limitation: (a) easements for the teinporary storage of supplies of building nlaterials and
equipment necessary to complete Iinproven~ei~ts; and (b) easements for the construction,
installation and Maintenance of such Iinproveinei~ts as the Declarant determines, in its
reasonable discretion, to be necessary or desirable.
The Declasai~t hereby reserves to itself, its successors and assigns the right to: (a) use any
Lots or Parcels owned or leased by the Declarant, any other Lot or Parcel with written coilsent of
the Owner thereof. or ally portioi~ of tl~e Colninoil Area as models, ~nanagement offices, sales
offices, a visitors' center, construction offices, custoiner service offices or sales office or model
home parking areas; and (b) install and maintain on the Com~llon Area, ally Lot or Parcel owned
or leased by the Declarant or any otl~er Lot or Parcel wit11 the consent of the Owner thereof, such
marketing or prolnotional flags and flag poles and such marketing, promotional, identification,
direction or other signs which the Declarailt deeins necessary for the developmei~t, sale or lease
of Lots and Parcels in White Tank Foothills. The Declarant shall have the right to grant and
reserve easements, rights-of-way and licenses over and through the Common Area for the
purposes set forth in this Section or for any other puspose necessary or desirable for the orderly
development of White Tank Foothills. The Declarant may make ally dedications and grant any
easemellts, rigl~ts-of-way and licenses required by any governnient or govermeiltal agency over
and tlxough all or any postion of the Colnmon Area.
Any and all conveyances made to the Association or any Owner sllall be coi~clusively
deemed to incorporate these reservatioils of rights and easemeilts, whether or not set forth in such
grants. The easements and rights granted or reserved to the Declarant in this Declaration shall
not terilzinate or merge and sl~all coiltinue to run with the land, notwithstanding the consinon law
doctrine of merger and the common owllesship of all of White Tank Foothills by the Declarant.
Upon written request of the Declarant, the Association and each Owner shall fro111 time to time
sign, acknowledge and deliver to the Declarant sucl~ further assurances of these reservatio~ls of
rights and easements as inay be requested.
In the event of any conflict or inconsistency between this Section and any other provision
of the Cornillunity Doculne~lts, this Section shall prevail.
4.3
Easement for Maintenance and Enforcement.
The Association and its directors, officers, agents, contractors and eiilployees, the Design
Review Committee and any other Persons authorized by the Board are hereby granted the right
of access over and through ally Lots and Parcels (excluding the interior of any Residence) for:
(a) the exercise and discharge of their respective powers and responsibilities uilder the
Coininunity Documents; (b) making inspections in order to verify that all In~proveme~~ts
011 the
Lot or Parcel have been constructed in accordance with the plans and specifications for such
Improvements approved by the Design Re\lie~v Committee and that all Iinproveinents are being
properly n~aiiltained as required by the Corninunity Documents; (c) correcting ally conditioil
C \DOCLIME- 1 \ded\I,OCALS-l \Temp\mwtemp I f4\\vsEB tmp
originating in a Lot or Parcel or in any Coininon Area threatening another Lot or Parcel, the
Coininon Area or any Neighborhood Comn~on Area; (d) performing installations or Mai~~tenance
of utilities, landscaping or other Iinprovenleilts located on Areas of Association Responsibility
situated within the boundaries of the Lots or Parcels; or (e) correctiilg any condition which
violates the Community Documents.
4.4
Easements for Encroachments.
If any Iinprovemeilts on any Lot or Parcel or portion of the Cominon Area or
Neighborhood Coinmo~~
Area now or hereafter encroach on ally other property by reason of: (a)
the original construction thereof; (b) deviations within normal construction tolerances in the
Maintenance of any Improven~ent; or (c) the settling or shifting of any land or Inlproveinei~t, an
easemelit is hereby granted to the extent of any such encroaclm~ent for the period of time the
encroachment exists. The Owner of the encroaching Improveinent shall also have an easement
for the liillited purpose of Maii~tenance of the encroaching Improvement. This easement does
not relieve ally Owner or any other Person from liability for such Owner's or other Person's
gross negligence or willful misconduct.
ARTICLE 5
THE ASSOCIATION
5.1
Formation and Powers of the Association.
The Associatioil shall be an Arizona ~~oiiprofit
corporation. The Association shall have
all of the common law and statutory powers conferred upon nonprofit coi-porations under
Arizona law and all powers necessary or desirable: (a) to perfornl tlle Association's duties and
obligations under the Comnlunity Documents or imposed by law; (b) to exercise the rights and
powers of the Associatioil set forth in the Community Docunlents; and (c) to foster and pronlote
the conllnon good and general welfare of White Tank Footl~ills, the Owners, Residents and
Lessees, and the surrounding community. The Association may exercise any right or privilege
given to the Association expressly by the Community Documents and every other right or
privilege reasonably to be implied from the existence of any right or privilege given to the
Association by the Con~~nunity
Docunlents or reasonably necessary to effectuate ally such right
or privilege. The Associatioi~ shall be managed by a Board of Directors. Until the ter~ilination
of the Declarant Co~~trol
Period, the Declarant shall have the right to appoint and remove the
members of the Board. After the termination of the Declarant Control Period, the menlbers of
the Board shall be elected by the Owners in accordance with the Articles and Bylaws, The
Association shall not be dissolved unless another entity has agreed to assume the operation and
maintenance respoi~sibilities of the Associatioi~ under the Cominunity Documents.
The Association inay create profit or nonprofit subsidiaries which may be tax-exempi
organizations and delegate to such subsidiaries portions of the powers and authority of the
Association under the Conlmunity Documents. The Association may engage in activities to
benefit persons otl~er tha11 Owners, Lessees and Residents and may operate, manage and
maintain propei-ty not owned by the Association (including, without liinitatioi~, propei-ty
dedicated to public use) if the Association determines in its discretion that sucll action confers
some benefit upon Wllite Tank Foothills.
Tlle Association shall have the power and authority to enter illto an agreement with
RuralIMetro Fire Department or any other organization providing fire protection services (a "Fire
Protection Provider") pursuant to which the Fire Protection Provider would provide fire
protection services to all or a portion of the Lots and/or Parcels. Any such agreeinent may
provide for the Association to pay the Fire Protection Provider for such services or may provide
for the cost of such fire protection services to be billed directly by the Fire Protection Provider to
the Owners of the Lots and/or Parcels to which fire protection services are provided. If the
agreeinent with the Fire Protection Provider requires tlze Associati011 to pay tlle Fire Protection
Provider for the fire protection serxiices, the11 the cost paid by the Association for such services
shall be included in the Regular Assessment levied against the Lots and Parcels pursuant to
Section 6.2; provided, however, tliat if the fire protection services are provided to less than all of
the Lots and Parcels, then tlle cost of the fire protection services shall be assessed as a Benefited
Property Assessme~lt against only those Lots and Parcels to which fire protection services are
provided pursuant to the agreement between the Association and the Fire Protection Provider.
The Associati011 shall llave the power and authority to enter into an agreement with a
waste disposal company (a "Waste Collector") pursuant to which the Waste Collector would
provide for the collection and removal of garbage, trash, recycling materials and other refuse
from all or a poi-tion of the Lots and/or Parcels. Any such agreement may provide for the
Association to pay the Waste Collector for such services or may provide for the cost of such
services to be billed directly by the Waste Collector to the Owners of the Lots andlor Parcels to
which such services are provided. At the option of the Association, each Owller shall contract
directly with the Waste Collector for such services and shall pay the Waste Collector directly for
such services. Each Owner shall be obligated to use the Waste Collector selected by the
Association. If the agreeinent with the Waste Collector requires the Association to pay the
Waste Collector for the waste and trash disposal services, then the cost paid by the Association
for such services sl~all be included in the Regular Assessment levied against the Lots and Parcels
pursuant to Section 6.2; provided, however, that if the waste and trash disposal services are
provided to less than all of the Lots and Parcels, then the cost of the waste and trash disposal
services sllall be assessed as a Benefited Property Assess~neilt against only those Lots and
Parcels to which waste and trash disposal services are provided pursuant to the agreement
between the Association and the Waste Collector.
5.2
Authorized Community Activities, Services and Programs.
The Association may organize, fund and adininister con~munity-building activities,
services and programs as the Association deems necessary, desirable or appropriate. Exanlples
of such activities, services and progranls include, but are not limited to, the following:
(a)
Operation and management of the Areas of Association
Responsibility;
(b)
Primary and adult educatioii progran~s;
(c)
Recreation and social programs;
19
(d)
Activities designed to promote conlpliance with the
Conllnunity
Docun~ents tllrougl~ education
and
communication;
(e)
Public relations activities
011 behalf of White Tank
Foothills;
(f)
Cultural, arts, environmental and well~less programs;
(g)
Coinmunity service activities for the benefit of Owners,
Lessees or Residents of White Tank Foothills and the
sussounding community;
(h)
Conllnunity internet and intranet sites;
(i)
Chai-ter clubs and other volunteer orgai~izations and
activities;
Cj)
Other services, activities and programs wllich enhance the
sense of coilimunity in White Talk Foothills.
Nothing in this Section shall be construed as a representation by the Declarant or the
Association as to what, if any, activities, services and prograins will be provided by the
Association. In addition, the Association inay modify or cancel existing activities, services and
programs in its discretion. Nonuse of any activities, services or prograins offered by the
Association sl~all not exempt any Owner from the obligation to pay Assessn~ents.
5.3
Relationship with Other Entities.
The Association nlay enter into cooperative agreements and expend funds for facilities,
services and activities which benefit White Tank Foothills and the sui~ounding coinmun~ity. The
Association may provide, or provide for, such services and facilities for all of the Owners,
Lessees and Residents and their Lots and Parcels, and the Association is autllorized to enter into
and terminate contracts or agreements with other entities, including the Declarant or its affiliate,
to provide such services and facilities. The Association may charge use or service fees for ally
such services and facilities provided, but may also include all or a portion of the cost thereof ill
the Association's budget as an Association Expense and assess it as part of the Regular
Assessment if the services and facilities are provided to all Lots and Parcels or may also include
all or a poi-tion of the cost thereof in a Benefited Property Assessinent if the services and
facilities are provided to less than all of the Lots and Parcels. I11 any contracts or agreemeilts
with third parties for the provision of services within White Tank Foothills, tlle Association inay
assign to the service provider the right to bill Owners directly and to pursue all legal or equitable
remedies otherwise available to the Association for the collection of such bills.
5.4
Oversight of Neighborhood Associations.
Tlle Association shall have oversigl~t authority over any action talcen or proposed by a
Neigl~borl~ood
Association and may, in its discretion, veto any action or decision of a
Neighborhood Association deterlllined to be contrary to the general schenle of developnlent for
White Tank Foothills. In addition, the Association shall have the power to take action against, or
require that specific action be taken by, a Neighborllood Association, and to enforce the terins of
any Neigl~borhood Declaration. Such actioiis may include requiring specific maintenance or
repairs to Neighborhood Conlmon Area.
5.5
Identity of Members.
The lneinbers of the Association shall be Owners of the Lots and Parcels. All Owners of
Lots and Parcels shall be maildatory menlbers of the Association. A11 Owner of a Lot or Parcel
sllall automatically, upon becoining the Owner thereof, be a inember of the Association and shall
remain a Inember of the Association until such time as his ownership ceases for any reason, at
which time his menlbership in the Association shall auton~atically cease.
5.6
Allocation of Memberships.
Each Lot and Parcel shall be allocated inembersl~ips in the Association. Each Owner
shall have the number of Memberships allocated to the Lots and Parcels owned by such Owner.
Each Lot and Parcel is allocated Memberships in the Association as follows:
(a)
Each Lot is allocated one (1) Membership.
(b)
Each Parcel is allocated one (1) Membership for each Lot
that may be created by the subdivision of the Parcel as
shown on the Development Plan. If a subdivisiol~ plat or
other instrument creating Lots is Recorded covering all or
part of the area within the Parcel, the Parcel shall be
reduced in size by the area so platted and the number of
Memberships allocated to such Parcel shall be reduced by a
number equal to the nuillber of Lots in the Recorded
subdivisioil plat.
All Memberships attributable to tlle
Parcel shall cease when the land area ceases to be a Parcel
because all of the area in the Parcel has been platted or
otherwise dedicated to the public and no unplatted area
reinains within the Parcel.
5.7
Classes of Members and Voting Rights.
The Association shall have the following two classes of voting inembersl~ip:
Class A. Class A menlbers shall be all Owners,
wit11 the exception of the Declarant and the Builders until the
termination of the Class B membership, of Lots and Parcels. Each
Class A inember sllall be entitled to one (1) vote for each
Meillbership held such Member.
Class B.
The Class B inembers shall be the
Declarant and the Builders. The Declarai~t and each Builder shall
be entitled to thee (3) votes for each Membership held by the
Declarant or the Builder.
5.8
The Association Rules.
Tlie Board may adopt, ainend and repeal rules and regulations pertaining to: (a) the
management, operation and use of the Areas of Association Responsibility including, but not
limited to, any recreational facilities situated upon the Areas of Association Responsibility; and
(b) ininiinuin standards for the Maintenance of Lots and Parcels. In the event of any conflict or
inconsistency between the provisions of this Declaratioi~ and the Association Rules, the
provisions of this Declaration shall prevail. The Association Rules shall be enforceable in the
same manner and to the same extent as the covenants, conditions and restrictions set forth in this
Declaration.
5.9
Personal Liability.
No director, officer, employee or agent of the Association or the Design Review
Comn~ittee or of any con~n~ittee
of the Association or the Design Review Committee, and no
other Person acting on behalf of the Association or the Design Review Conlnlittee shall be
personally liable to any Person for any damage, loss or prejudice suffered or claimed on account
of any act, omission, error, or negligence in the discharge of such Person's duties and
responsibilities under the Comlnunity Documents provided such Person acted in good faith.
5.10
Conveyance, Lease or Encumbrance of Common Area.
Tlle Association nlay dedicate parts of the Coinmoil Area to tile County or any public
agency, autliority or utility for such purposes and subject to such conditions as the Board may
deterinine to be in the best interests of White Tank Foothills. The Association inay convey
poi-tions of the Common Area for tlie pui-pose of adjusting the boundary lines between the
Coinn~on Area, Limited Conlnion Area and adjoining Lots or Parcels or dedicated rights-of-way.
The Association may grant permits, licenses and easements on, over, under and though the
Cominon Area for utilities, roads and other purposes reasonably necessary or useful for the
proper maintenance and operation of White Tank Foothills. The Association inay lease all or
any part of the Common Area for such purposes and on such terills and conditions as the Board
determines to be necessary or desirable; provided, however, that any lease entered in to after the
termination of the Declarant Control Period niust be approved by Owners entitled to cast more
than fifty percent (50%) of the Eligible Votes. Except as otllerwise expressly provided in this
Declaration, the Common Area shall not be mortgaged or conveyed without tlie prior written
consent or affirmative vote of Members holding at least two-thirds (213) of the Eligible Votes
and by the Declarant so long as the Declarant owi~s any Lot or Parcel.
ARTICLE 6
COVENANT FOR ASSESSMENTS AND CREATION OF LIEN
6.1
Creation of Lien and Personal Obligation of Assessments.
Each Owner, by becoming the Owner of a Lot or Parcel, is deemed to covenant and agree
to pay to the Association all Assessments, Collection Costs and all other fees and costs which
may become payable by the Owner to the Associati011 under the Conlmunity Documents. All
Assessments shall be established and collected as provided in this Declaration.
Each
Assessment, together with all interest thereon, shall also be the personal obligation of the Person
who was the Owner of the Lot or Parcel at the time when the Assessment became due. The
persoi~al obligation for delinquent Assessments shall not pass to the successors in title of the
Owner unless expressly assunled by them. No Owner shall be exeil~pt from liability for
Assessments because of such Owner's non-use of the Cornnlon Area, abandonnlent of such
Owner's Lot or Parcel or other circumstance. The obligation to pay Assessnlents is a separate
and independent obligation on the part of each Owner. No diminutioil or abatement of
Assessments or set-off shall be claimed or allowed for any alleged failure of the Association. the
Board or the Design Review Committee to take some action or perfoiln some fuilction required
of them.
6.2
Regular Assessments.
At least thirty (30) days prior to the commencement of each Assessme~lt Period, the
Board shall prepare and adopt a budget (the "Budget") of the estimated Association Expenses for
the next Assessment Period, including any contribution to be made to a reserve fund. The
Budget shall also reflect the sources and estimated amount of funds required to pay such
Association Expenses, which sources ]nay include any surplus to be applied from prior years,
any income expected from sources other than Assessments and the amount to be generated
tlxough Assessme~lts against the Lots and Parcels. The Budget shall separately reflect any
Benefited Property Expenses.
Concurrently with the adoption of the Budget, the Board shall deteimine the amount of
the Regular Assessnlent for each Assessable Lot and Assessable Parcel. The Regular Assessillent
for each Assessable Lot and Assessable Parcel owned by an Owner other tllail a Builder shall be
the product of the number of Men~berships allocated to the Lot or Parcel pursuant to Sectioil 5.6
multiplied by the amount obtained by dividing the anlo~ult of Association Expenses to be
assessed by the total number of Memberships allocated to all Lots and Parcels. The Regular
Assessment for each Assessable Lot and Assessable Parcel owned by a Builder shall be 25% of
the product of the number of Memberships allocated to the Lot or Parcel pursuant to Section 5.6
multiplied by the amount obtained by dividing the amount of Association Expenses to be
assessed by the total number of Membersl~ips allocated to all Lots and Parcels. The amount of
increase, if any, in the Regular Assessment from one Assessment Period to the next Assessment
Period shall be subject to such limitations as may be iinposed by Arizona law.
Tlle Board shall give notice of the Regular Assessinent to each Owner at least thirty (30)
days prior to the beginning of each Assessmeilt Period, but the failure to give such notice shall
not affect the validity of tl~e Regular Assessn~eilt established by the Board 110s relieve any Owner
froin its obligatioil to pay the Regular Assessment. If the Board fails to adopt a Budget for ally
Assessineilt Period, then until and unless such Budget is adopted and a Regular Assessillent is
levied by the Board for such Assessment Period, the ainlount of the Regular Assessmeilt for the
immediately preceding Assessment Period shall reinain in effect.
If the Board deternlines during any Assessinent Period that the funds budgeted for that
Assessmellt Period are, or will, become inadequate to meet all Associatioil Expenses for any
reason, including, without limitation, nonpayment of Assessmeilt, the Board inay amend the
Budget and increase the Regular Assessment for that Assessnlent Period and the revised Regular
Assessment shall commence on the date designated by the Board.
6.3
Special Assessments.
The Association may levy against each Assessable Lot and Assessable Parcel a Special
Assessment for the purpose of (a) obtaining funds to pay the cost of any construction,
reconstruction, repair or replacement of an In~proveillent upon the Common Area (including
fixtures and personal property related thereto), or (b) to pay unbudgeted expenses or expenses in
excess of the amount budgeted. The Association shall not levy any Special Assessment unless
the Special Assessment is approved by Members holding two-thirds (213) of the votes cast with
respect to the Special Assessment. No Special Assessnlent shall be levied during the Declarant
Coiltrol Period unless the Special Assessment is approved in writing by the Declarant. The
Special Assessinent for each Assessable Lot and Assessable Parcel shall be the product of the
number of Memberships allocated to the Lot or Parcel pursuant to Section 5.6 multiplied by the
amount obtained by dividing the total Special Assessment by the total number of Memberships
allocated to all Assessable Lots and Assessable Parcels.
6.4
Enforcement Assessment.
The Association may inlpose against an Owner as an Enforcement Assessmellt the
following expenses: (a) any Collection Costs incurred by the Association in attempting to collect
Assessn~ents or other amounts payable to the Association by the Owi~er; and (b) ally inonetary
penalties levied against the Owner.
The Enforcement Assessineilt sl~all be autoinatically
iniposed against an Owner at such time as the Collection Cost or other amounts are incurred by
the Association or, in the case of a monetary penalty, the date the inonetary penalty is imposed
on the Owner by the Board.
6 .
Rcnefittel Propcrtv Asscssnicnts.
All Association Expenses pertaining to the Maintenance of Limited Coinlnon Areas or
pertaining to the providing of Special Services shall be shown separately in the budget adopted
by the Board. The Association Expenses pertaining to the Maintenance of a Limited Coinmoll
Area or to the providing of Special Services shall be assessed solely against the Lots and Parcels
within the Benefited Property Assessment Area as established by the Suppleme~ltal Declaration
designating the Benefited Propel-ty Assessment Area. No Association Expenses pertaining to the
Maintenance of Limited Common Area or pei-taiiiiiig to providiilg Special Services shall be used
in coinputiilg the Regular Assessn~ents to be levied pursuant to Sectioi~ 6.2. Unless otherwise
provided for in the applicable Suppleinental Declaration, Benefited Property Assessinents shall
be levied against the Assessable Lots and Assessable Parcels within the Benefited Property
Assessment Area at a uniform ainoullt per Membership. If the Board determiiles during ally
Assessment Period that any Benefited Property Assessment is, or will, become inadequate to pay
all Associatioll Expenses to be paid by the Benefited Property Assessment for any reason,
including, without limitation, nonpayment of Benefited Property Assessinents by Owners, the
Board may increase the Benefited Property Assessment for that Assessment Period and the
revised Benefited Propei-ty Assessilleilt sllall coininence on the date designated by the Board.
6.6
Obligation of Builders for Deficiencies.
The Builders shall pay to the Associatioll such funds as nlay be necessary, when added to
the Regular Assessinents levied by the Association, to pay all Associatioil Expenses of the
Associatioil as they become due. The paymei~t of any such alnouilts shall be allocated between
the Builders on a pro rata basis according to the number of Memberships held by each Builder as
of the date the payment is requested by the Board. The Board may require the payment of such
funds by the Builders froin time to time as the Board deems necessary by giving written notice
thereof to the Builders. Each such notice shall state the total amount of funds required and the
calculatioil of the pro rata share of such funds to be paid by each Builder. In no event shall a
Builder be obligated to pay funds to the Association in excess of the amount of Regular
Assessments that would have been payable by the Builder if the Lots and Parcels owned by the
Builder had been assessed as Assessable Lots and Assessable Parcels owned by an Owner other
than a Builder.
6.7
Assessment Period.
The period for which the Regular Assessment and Benefited Property Assessinents shall
be levied shall be the calendar year, except that the first Assessmellt Period shall coinmence on
the first day of the first month after the conveyailce of the first Lot or Parcel to a Purchaser or
such later date as may be selected by the Board of Directors and terminate on December 3 1 of
sucll year. The Board in its sole discretion from time to time inay change the Assessment Period.
6.8
Rules Regarding Billing and Collection Procedures.
Regular Assessnients and Benefited Propei-ty Assessinents shall be collected on a
monthly basis or such other basis as may be selected by the Board. Special Assessments may be
collected as specified by the Board. The Board shall have the right to adopt rules and regulatioils
setting foi-th procedures for the pui-pose of malting Assessmeilts and for the billing and collection
of the Assessinents provided that the procedures are not inconsistent with the provisiolls of this
Declaration. The failure of the Association to send a bill to an Owner shall not relieve any
Owner of such Owi~er's liability for any Assessment or charge under this Declaration. The
Association shall be under no duty to refund ally payments received by it even though the
ownership of a Lot or Parcel changes during ail Assessinel~t Period, but successor Owners of
Lots or Parcels sllall be given credit for prepayments, on a prorated basis, made by prior Owners.
C \DOCUME- l\dcd\LOCALS- l\Temp\m\\,tcmpl f4\\lrsEB tmp
6.9
Effect of Nonpayment of Assessments; Remedies of the Association.
Any Assessinent, or any installment of an Assessment, not paid witl~in fifteen (1 5) days
after the Assessment, or the ii~stallinent of the Assessment, first became due shall bear interest
from the due date at the rate of interest set from time to tiine by the Board. 111 addition, the
Board may establish a late fee to be charged to any Owner who has not paid ally Assessn~ent, or
any installmeilt of an Assessment, within fifteen (1 5) days after such payment was due.
The Association shall have a lien on each Lot and Parcel for: (a) all Assessiilents levied
against the Lot or Parcel or the Owners thereof together with interest thereon as provided in this
Section; (b) all monetary penalties imposed on the Owner of the Lot or Parcel; (c) any amounts
payable to the Association pursuant to Section 7.3, Sectioil 7.4 or Section 7.8; and (d) any other
amounts payable to the Association pursuant to the Comnlunity Documents.
The Recording of this Declaration constitutes record notice and perfection of the
Assessment Lien. The Association may, at its option, record a Notice of Lien setting forth the
name of the delinquent Owner as shown in the records of the Association, the legal description
or street address of the Lot or Parcel against which the Notice of Lien is recorded and the ainount
claimed to be past due as of the date of the Recording of the Notice, including interest, lien
recordiilg fees and reasonable attorneys' fees. Before recordiilg any Notice of Lien against a Lot
or Parcel, the Association shall make a written demand to the defaulting Owner for payment of
the delinquent Assessn~ents, together wit11 interest, late charges and reasonable attorneys' fees, if
any, and all other amounts secured by the Assessment Lien. Each default sl~all constitute a
separate basis for a demand, but any number of defaults may be included within the single
demand. If the amounts specified in the demand are not paid within ten (10) days after delivery
of the demand, the Association lnay proceed with recordiilg a Notice of Lien against the Lot or
Parcel. If the Association records a Notice of Lien, the Association or the Association's
managing agent may charge the Owner of the Lot or Parcel against which the Notice of Lien is
Recorded a lien fee in an ainount established from time to tiine by the Board.
The Assessment Lien shall have priority over all liens or claims except for: (a) liens and
encumbrances Recorded before the Recording of this Declaration; (b) liens for real estate taxes
and other governmental assessn~ents and charges; and (c) the lien of ally First Mortgage or
seller's interest in a first contract for sale recorded prior to the Assessment Lien. Any First
Mortgagee or any other Person acquiring title or conling into possession of a Lot or Parcel
tl~rough foreclosure of the First Mortgage, purchase at a foreclosure sale or trustee sale, or
through any equivalent proceedings, such as, but not limited to, the taking of a deed in lieu of
foreclosure shall acquire title free and clear of any claims for unpaid assessments and charges
against the Lot or Parcel wl~icl~
became payable prior to the acquisition of such Lot by the First
Mortgagee or other Person. Any Assessineilts and cllarges against the Lot or Parcel which
accrue prior to such sale or trailsfer shall remain tl~e obligatioil of tl~e defaulting Owner of the
Lot or Parcel. The Association shall not be obligated to release tl~e Assessment Lien until all
delinquent Assessnients and all other sums payable to tlle Association by the Owner of the Lot or
Parcel have been paid in full.
The Association shall have the right, at its option, to enforce collection of ally delinquent
Assessments and any other sums due to the Association in any manner allowed by law including,
but not liinited to: (a) brillging ail action at law against the Owner persoilally obligated to pay the
deliliqueilt Assessments and such action inay be brought without waiving the Assesslnellt Lien;
or (b) bringing an action to foreclose the Assessineilt Lien against the Lot or Parcel in the
mailller provided by law for the foreclosure of a realty mortgage. Tlle Associatiol~ shall have the
power to bid in at any foreclosure sale and to purchase, acquire, hold, lease, inortgage and
convey ally and all Lots and Parcels purchased at such sale.
6.10
Purposes for which Association's Funds May Be Used.
The Association may use all f~mds and property collected and received by it (includii~g
the Assessn~ents, fees, loan proceeds, surplus funds and all fui~ds and property received by it
from any other source) for the purpose of: (a) discharging and perforining the Association's
duties and obligations under the Coininunity Docuineilts or applicable law; (b) exercisiilg tlle
rights and powers granted to the Association by the Commuility Docuinents or applicable law;
(c) providing for promotioli activities and services the Board deeins appropriate, necessary or
desirable to foster or promote the coinmo~~
good and general welfare of White Tank Foothills
and the Owners, Lessees and Residents; (d) coiitractiilg for services (including, without
limitation, cable television) to be provided to Ow~lers, Lessees and Residents; and (e) taking such
other action as the Associatioil deeins necessary, appropriate or desirable for the management
and adinillistratioil of the Association or for the benefit of the Associatioil or of White Taiilc
Foothills.
6.11
Surplus Funds.
Tlle Associatioi~ shall not be obligated to spend in ally year all the Assessn~ents and other
sulils received by it in such year, and lnay carry forward as surplus ally balances remaining. The
Associatioi~ shall not be obligated to reduce the a~nount of the Regular Assessineilt in tlle
succeeding year if a surplus exists from a prior year, and the Associatioil lnay carry forward froin
year to year such surplus as the Board in its discretioil may determine to be desirable for tlie
fillallcia1 security of the Associati011 and the accoinplishineilt of its purposes. To tlle extent
permitted by law, the Associatioli sliall refund any such surplus to the Builders wl1o paid
deficiency payineilts to the Association pursuailt to Section 6.6 pro rata based on the amount of
deficiency payments made by each Builder.
6.12
Contribution to Reserves.
Except as otllerwise provided in this Section, each Persoil (otller than the Declarallt or a
Builder) who purcllases or otherwise becomes the Owiler of a Lot shall pay to the Associatioi~,
immediately upon becolilillg tlle Owner of the Lot, a colltribution (tlie "Reserve Colltribution")
to the reserves to be established pursuant to Section 6.13. The ainouiit of the Reserve
Colltribution shall be equal to one-fourth (114"') of the Regular Assesslneilt for the Lot. The
Board of Directors lnay froill time to time thereafter increase or decrease the anlount of the
Reserve Contribution, but the ailiouilt of the Reserve Col~tributioli inay not be increased by the
Board of Directors by inore than twenty percent (20%) during ally twelve montl~ period without
the approval of Meinbers holding Inore tllail fifty percent (50%) of the Eligible Votes. The
Reserve Contributioil sllall be deemed a contributioii to the capital of the Association. All
Reserve Contributions shall be deposited in the Reserve Accouilt established pursuallt to Sectioll
6.13.
No Reserve Contributioi~ shall be payable with respect to: (a) the trailsfer or conveyai~ce
of a Lot by devise or intestate succession; (b) a transfer or coilveyallce of a Lot to a fainily trust,
fainily limited partnership or other Persoil for boila fide estate plaiming purposes; (c) a trailsfer
or conveyance of a Lot to a corporation, partnership or other entity ia which the grantor owils a
illajority interest unless the Board deterinines, in its sole discretion, that a inaterial purpose of the
trailsfer or collveyailce was to avoid payillent of the Reserve Contributioi~; or (d) the trailsfer or
conveyai~ce of a Lot as a result of a trustee's sale under a deed of trust, the foreclosure of a realty
mortgage or the forfeiture or foreclosure of a purchaser's interest uilder a Recorded coiltract for
the conveyance of real property subject to A.R.S. 33-741, et seq.
6.13
Reserves.
The Board shall establish reserves for the future periodic maintenal~ce, repair or
replacemelit of the illajor coillponents of tl~e Areas of the Associatio~~
Respoasibility. The
reserves inay be funded fro111 Regular Assessments, the Reserve Coi~tributions paid pursuant to
Sectioil 6.12 or ally other revenue of the Association. All ai~~ounts
designated as reserves shall
be deposited by the Board of Directors in a separate bank acco~ult (the "Reserve Account") to be
held for the purposes for which they are collected and are to be segregated from and not
coillilliilgled with ally other f ~ ~ i ~ d s
of the Association. To assist the Board in deterinilliilg the
appropriate alnouilt of reserves, tl~e Board shall obtain a reserve study at least once every three
years, wl~ich study shall at a minimun~ include (a) identification of the illajor components of the
White Tank Foothills which the Associatiolz is obligated to repair, replace. restore or illaiiltaiil
which, as of the date of the study, have a rel~laining useful life of less than thirty (30) years; (b)
identification of the probable remaining useful life of the identified major componei~ts as of the
date of the study; (c) an estimate of the cost of repair, replacemei~t, restoration, or maii~tenance
of the identified illajor con~polleilis during and at the end of their useful life; (d) ail estiillate of
the total ailnual coiltribution necessary to defray the cost to repair, replace, restore, or lllaiiltaill
the identified major coinpoileilts during and at the end of their useful life, after subtracting total
reserve funds as of tl~e date of the study.
6.14
Transfer Fee.
Each Purchaser (other than a Builder) of a Lot or Parcel shall pay to the Associatioll or
the Association's mailagiilg agent immediately upoil becolning the Owiler of the Lot or Parcel a
tralnsfer fee in sucl~ aillo~mt as is established from time to time by the Board to coi~lpensate tl~e
Association for the adilliilistrative cost resultiilg from the trailsfer of a Lot or Parcel. T11e
trailsfer fee is not inteilded to coinpeasate the Association or the Association's illallagiilg agent
for the costs incurred in tlle preparation of the statemei~t wllicl~ the Associatioll is required to
mail or deliver to a purchaser under A.R.S. 5 33- 1806A and, therefore, tile transfer fee shall be in
addition to the fee which the Associatioll is entitled to charge pursuailt to A.R.S. 5 33-1806C.
6.15
Sewer Service Fees.
The City of Surprise (the "City") will invoice and coilect monthly sewer fees from the
Owi~er of each Lot. The amount of the sewer service fees shall be deterniined by the City. The
City shall have a lien on each Lot to secure payment of the sewer fees, together with interest, late
fees and costs of collection. The City's lien shall be in yari yossz~ with the Association Lien, and
the lien rights of the City will be subject to all the same limitations, conditions, restrictions and
requireinents as the Association Lien, including, without liinitatioll, subordination to First
Mortgages and the requireillent to provide timely certifications of payment or nonpayilleilt of the
sewer fees.
Pursuant to the Sewer Service Agreement between the City, the Declarant and Cortessa,
L.L.C., the City, at its option, has tlle right upon ninety (90) days prior written notice to the
Association to invoice and collect montllly sewer fees for residential service for all Lots within
White Tank Foothills on a bulk basis through the Association. If the City elects to invoice and
collect moi~thly service fees on a bulk basis througlz the Association, each Lot upon which a
residential dwelling unit has been coilstructed and coilnected to the City sewer system will be
assessed a montlily sewer assessment in the anlouilt payable by the Association to the City with
respect to such Lot.
ARTICLE 7
MAINTENANCE
7.1
Areas of Association Responsibility.
The Associatioil shall be responsible for the management, operation and Maintenance of
all Areas of Associatioii Responsibility, and all Inlproveinents located thereoil, except for any
part of the Areas of Associatioil Responsibility which any governinental entity is inaintaining or
is obligated to maintain. The Board shall be the sole judge as to the appropriate Maiiltenance of
all Areas of Association Responsibility, but the Areas of Association Responsibility, and the
Improven~ents located thereon, shall be illaiiltaiiled in good condition and repair at all times. No
Owner, Resident or other Persoil shall construct or install any Improvements on the Areas of
Association Responsibility or alter, n~odify or remove any Iinproveme~~ts
situated on the Areas
of Associatioii Responsibility without the approval of the Board. No Owner, Resident or other
Person shall obstruct or interfere with the Associati011 in the performance of the Association's
management, operatioii or Mailitenance of the Areas of Association Responsibility, and the
In~provenlents located thereon.
Eacll Owner of a Lot or Parcel shall be responsible for the Maintenance of his Lot or
Parcel, and all buildings, Residences, landscaping or other Iinprovei~~ents
situated thereon,
except for any portioil of the Lot or Parcel, or any Iinproveinent situated thereon, which is an
Area of Associatioil Responsibility.
All buildings, Residences, landscaping and other
Iinproveineilts shall at all tiines be kept in good coildition and repair. All grass, hedges, shrubs,
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vines and plants of any type on a Lot or Parcel shall be irrigated, mowed, triinined aiid cut at
regular intervals so as to be niaiiitaiiied in a lieat aiid attractive inailiier. Trees, shrubs, vines,
plants aiid grass wliich die sliall be proiiiptly relnoved and replaced with living foliage of lilte
ltind, unless different foliage is approved in writiiig by the Design Review Committee. No yard
equipment, wood piles or storage areas inay be iliaintailled so as to be Visible From Neighboring
Property or streets.
All Parcels and Lots upon which 110 Residences, buildiiigs or other
structures, landscaping or In~proveineiits have been coiistructed sliall be inaintained in a weed
free and attractive manlier.
7.3
Assessment of Certain Costs of Maintenance and Repair.
In the event that the need for Maintenance of an Area of Association Responsibility is
caused through tlie willf~ll or negligent act of any Owner, his family, tenants, guests or invitees,
tlie cost of sucli Maintenance sliall be paid by such Owner to the Associatioil upoii delnaild and
payment of s~lch amounts sliall be sec~u-ed by the Assessnient Lien.
7.4
Improper Maintenance and Use of Lots or Parcels.
In tlie event (a) any portion of aiiy Lot or Parcel is so inaintaiiied as to present a public or
private nuisance, or as to substantially detract from tlie appearance or quality of tlie s~~rrounding
Lots or Parcels or other areas of White Taiilc Foothills, (b) aiiy portioii of a Lot or Parcel is being
used in a manner which violates this Declaration, or (c) the Owner of any Lot or Parcel is failing
to perforill aiiy of its obligations under tlie Coniniunity Documents, tlie Board may give notice to
tlie offending Owner of tlie corrective action that niust be talten aiid the date by which the
corrective action must be completed. If the required corrective action is not completed by the
coinpletioii date established by tlie Board, tlie Board shall be autliorized and empowered to cause
sucli action to be talten and tlie cost thereof sliall be paid by such Owner to the Association upoii
deliland and payment of sucli ainounts sliall be secured by tlie Assessiiient Lien.
7.5
Boundary Walls.
Eacli wall or fence wliicli is located between two Lots or Parcels sliall constitute a
boundary wall and, to tlie extent not inconsistelit with this Section, tlie general rules of law
regarding boundary walls sliall apply.
The Owners of contiguous Lots or Parcels wlio share a boundary wall shall both equally
have tlie right to use such wall provided that sucli use by one Owner does not interfere with the
use and eiijoyinent of same by tlie otlier Owner.
Except as otlierwise provided in this Section, tlie Owners of contiguous Lots or Parcels
who sliare a bo~uidary wall shall each pay one-half (%) of tlie cost of aiiy maintenance, repair or
replacement of the boundary wall. Either of such Owners may perforill any necessary repair,
inaiiitenance or replaceinelit of the boundary wall aiid in sucli event, such Owlier shall be entitled
to reimbursement from the other Owner for one-half (%) of sucli cost.
In the event that any boundary wall is damaged or destroyed tlirougli tlie negligence or
willf~ll act of an Owner, his agents, tenants, licensees, guests or fan~ily, it shall be the obligation
of such Owiler to rebuild and repair the boundary wall without cost to the other Owner or
Owi~ers who share the boundary wall.
The right of ally Owner to contribution from ally other Owner under this Section shall be
appurtenailt to the land and shall pass to such Owner's successors in title. In addition to illeetiilg
the other requiren~ei~ts
of this Declaratioil and of ally other buildlilg code or similar regulations
or ordinances, ally Owiler proposillg to modify, inalte additioils to or rebuild a boui~dary wall
shall first obtain the written coilseilt of the adjoining Owners.
In the event ally boundary wall eilcroaches upoil a Lot or Parcel less than one foot, a valid
easeinent for such eilcroachineilt and for the inaiilteilance of the bo~lildary wall shall and does
exist in favor of the Owlless of the Lots or Parcels which share such boundary wall for so long as
the bouildary wall exists. If the ei~croachinent exceeds one foot, the Owner of the Lot or Parcel
on wl~icl~
the wall encroacl~es shall have the riglit to require the adjoining Owiler to relocate the
wall so that the wall does not eilcroach by Inore than one foot.
7.6
Maintenance of Walls other than Boundary Walls.
Walls (other than boundary walls) located on a Lot or Parcel shall be maintained,
repaired and replaced by the Owner of the Lot or Parcel. Any wall which is placed 011 the
bouildary line between a Lot or Parcel and an Area of Associatioil Responsibility shall be
maintail~ed, repaired and replaced by the Owner of the Lot or Parcel, except that the Association
shall be respoilsible for the repair and nlaintenal~ce of the surface of the wall which faces the
Area of Association Responsibility. In the event ally such wall encroacl~es upon the Area of
Associati011 Respoi~sibility, an easement for such encroachment shall exist in favor of the
Associatioil or the Owner of the Lot or Parcel, as the case inay be, for so long as the wall exists.
Any wall which is placed on the boundary line between a Lot or Parcel and public rigl~t-of-way
shall be maintained, repaired and replaced by the Owi~er of the Lot or Parcel, except that the
Associatioil shall be responsible for the repair and replacelllent of the surface of the wall wl~ich
faces the public right-of-way.
7.7
Construction Activities.
Normal coilstructioil activities and parltiilg in coililectioil with the coilstructioll of
Ii~lprovemeilts on a Lot or Parcel shall not be coilsidered a nuisailce or otl~erwise prollibited by
this Declaration. Lots and Parcels shall be kept ill a neat and tidy coilditioil during co~lstructioil
periods, trash and debris shall not be perinitted to accuill~~late
and supplies of brick, block,
luinber and other building illaterials shall be piled o11ly ill sucll areas as may be approved by the
Design Review Committee. In addition, ally coilstructioil equipment and building inaterials
stored or kept 011 any Lot or Parcel during co~~struction
of in~provelneilts may be ltept oilly i11
areas approved by the Design Review Committee. The Design Review Coininittee may also
require screening of said storage areas. Each Ow~ler shall be obligated to: (a) keep such
Owner's Lot or Parcel, as well as surroundiilg areas of White Tanlt Foothills, including, without
liinitation, all pedestrian and road rights-of-way and drives, reasoilably clean and clear of
equipment, building inaterials, dirt, debris and siinilar materials in coilllection wit11 or related to
construction activities by or for the benefit of sucll Owner; and (b) malte reasoilable efforts to
protect fron~ danlage, and in ally event to promptly repair or rebuild, ally buildings, structures,
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landscaping or other iii~provements (includil~g without limitation ally in~provements that are, or
are illtended to be, Comnion Area, Neighborliood Common Area, Areas of Associatioil
Respo~isibility or owned andlor maintained by the County or ally political subdivisioll or utility
provider, e.g., pavement, c~urbs, sidewallts, landscaping, drainage facilities, hydrants, grade
stakes, surveyor marlters, etc.) tliat are darnaged or destroyed through the act of any Owiier or an
Owner's Agent in connection with or related to coiistructio~i activities by or for tlie benefit of
sucli Owner, wlletlier or not sucli act is negligent or otherwise culpable.
7.8
Installation of Landscaping.
Within ninety (90) days after the date on wliich a Lot is first conveyed to an Owner other
than a Builder, laiidscaping must be installed and substaiitially completed in the front aiid back
yards of tlie Lot. All lalidscapi~ig in the fiont yard and all landscaping in ally portioli of the back
yard wliich is Visible Frorn Neighboring Property must comply with the Design Guidelilies and
inust be approved by the Design Review Committee, and any alteratio~is or niodifications niade
to the lai~dscaping of a Lot as origi~ially installed inust be approved ill advance by tlie Design
Review Committee. If ally Owiier does not install and complete approved landscaping witliin
the applicable time required by this Section, the Association, after giving the Owner thirty (30)
days written notice to cure any such default, shall have the right to cause the iiecessary
landscaping to be installed, and in such event, the Owner shall pay tlie Association, upon
demand, all costs incurred by the Association in collliection witli the installatioil of the
landscaping, together witli interest thereon at tlie rate of fifteen percent (1 5%) per anilum.
ARTICLE 8
USE RESTRICTIONS ON USE OF LOTS AND PARCELS
8.1
Residential Use.
All Lots and Parcels shall be used, improved and devoted exclusively to residelitial use.
No trade or busiiiess may be conducted on any Lot or Parcel or in or from ally Residence, except
that the Owner, Lessee or other Resident of a Residence niay conduct a business activity within
the Residence so long as: (a) tlie existence or operatioli of the busiliess activity is not apparent or
detectable by sight, soulid or siiiell from outside the Resideiice; (b) the busiliess activity is a legal
activity and coilfor~iis to all applicable zoning ordil~aiices or requirenients for the Project; (c) the
business activity does not involve persons coniiiig to the Lot to purchase goods or services or tlie
door-to-door solicitatioii of Ow~iers, Lessees or Residents ill the Project; (d) the use of the
Resideilce for trade or business in 110 way destroys or is incoiilpatible with tlie resideiitial
character of tlie Residence or tlie surroundi~lg iieighborhood; (e) the trade or business is
coilducted only inside the Resideiice, and does not involve the viewing, purchasing or taltiiig
delivery of goods or mercl~andise at, to, from or in ally Residence; (0
the trade or business is
conducted by a Resident or Residents of tlie Residence with no einployee worltillg in or from
such Residence who is not a Residelit t11ereoE; (g) the voluiiie of vehicular or pedestrian traffic or
parkil~g generated by sucli trade or busiiiess does not result ill congestion or be in excess of what
is custoinary in a resideiitial neighborhood; (11) the trade or business does not utilize flanimable
liquids or hazardous materials in quantities not customary to a residential use; and (i) the use of
the Residence for a trade or business does not violate ally other provision of the Coininunity
Doc~unents.
The terms "business" and "trade" as used in this Section shall be coilstrued to have
ordinary, generally accepted meanings, and shall include, witl~out limitation, any occupation,
work or activity undertal<en on an ongoing basis which ii~volves the provision of goods or
services to persons other than the provider's faillily and for wl~ich the provider receives a fee,
coinpensatioii or other forin of coi~sideratioi~,
regardless of whether: (a) such activity is engaged
in f ~ d l or part time; (b) such activity is intended or does generate a profit; or (c) a license is
required for such activity. The leasing of a Residence by tlie Owner thereof shall not be
coilsidered a trade or business witl~in the ineailiilg of this Section.
8.2
Nuisances.
No rubbish or debris of any l<ind shall be placed or perinitted to acculnulate on any Lot or
Parcel, and no odors or loud iloises shall be perinitted to arise or elnit therefrom, so as to render
ally sucli property or any portion thereof, or activity thereon, unsanitary, unsightly, offensive or
detrin~ental to any other property in the vicinity thereof or to the Residents of such other
property. No conditioii sllall be permitted to exist or operate upon any Lot or Parcel so as to be
offensive or detrimeiltal to ally other property in the vicinity thereof or to its Residents. No
outside clotheslines or other outside facilities for drying or airing clothes si~all be erected, placed
or maintained on any Lot so as to be Visible From Neighboring Property. No Person shall
permit any thing or condition to exist ~lpoii any Lot or Parcel whicl~ shall induce, breed or harbor
infectious plant diseases or noxious insects. No Lot shall be used in any nianner to explore for or
to remove any water, oil or other hydrocarbons, ininerals of any lciiid, gravel, gas, east11 or any
earth substance of any kind.
8.3
Animals.
No animal, bird, fowl, poultry, reptile or livestock inay be ltept on any Lot or Parcel,
except that a reasonable iiunlber of dogs, cats or small birds or animals wl~ich are commonly
accepted l~ouseliold pets inay be kept on a Lot if they are kept, bred or raised tllereon solely as
doinestic pets and not for coinmercial purposes. The Board shall have the authority to determine
(a) \vhetl~er a particular ailinla1 or bird is periilitted to be ltept on a Lot pursuant to this Section
and (b) what is a reasoiiable nuinber of dogs, cats or small birds or aniii~als which are coiiimonly
accepted l~ousehold pets for any particular Lot, and tlie Board's deterinination shall be final. All
dogs, cats, birds or animals permitted under this Section sliall be confined to an Owner's Lot,
except that a dog inay be perinitted to leave an Owner's Lot if sucli dog is at all times kept on a
leash and is not perinitted to enter upon any other Lot. Any person bringing a dog onto the
Colninon Area shall inlmediately remove any feces deposited on the Common Area by the dog.
The Board inay restrict the portions of the Coininon Area on whicli dogs are perinitted.
No dog, cat, bird or animal perniitted to be kept on a Lot pursuant to tliis Section shall be
allowed to inalte an unreasonable aniount of noise or to become a nuisance. No structure for the
care, housing or confiiiei~~ent
of any dog, cat, bird or animal perinitted to be kept on a Lot
pursuant to this Section shall be maintained so as to be Visible From Neigllboring Property.
Upon tlie written request of any Owner, Lessee or Resident, tlie Board sliall conclusively
determine, in its sole aid absolute discretion, whetl~er, for the purposes of this Section, a
particular dog, cat, bird or a~iiilial permitted to be ltept on a Lot pursuant to this Section is a
nuisa~ice or iiialtiiig all u~ireasonable aiilouiit of noise. Any decisioii rendered by tlie Board shall
be enforceable in tlie same ilialiner as other restrictioiis set forth iii tliis Declaration.
The Board limy adopt rules and regulatioiis f~~rtlier
restrictiilg and gover~iilig aninials
witliin White Taiilt Foothills, wliicli rules liiay include, without limitation rules providiiig for tlie
removal from White Tanlt Foothills of a doniestic pet wliicli has bitteii or attacked a person or
otlier atiiinal, lias a propeilsity to attack persoiis or otlier allilllais or otherwise colistitutes a tlireat
to the safety of perso~ls or otlier aninials in the Property or wliicli because of incessant barltil~g or
other behavior constitutes an ~ulreasonable annoyance or nuisa~lce to Owners and Residents.
8.4
Machinery and Equipment.
No iiiacliiiiery or equip~lleilt of ally ltiild shall be placed, operated or mailitailled upoii or
adjacent to any Lot, except such machinery or equipment as is usual and customasy in
coliilectioii with resideiitial use of property or niachiilery or equipiiient iiecessary for the
constr~~ction
of a Residence, building, structure, or otlier Iinproveilleiit on the Lot.
8.5
Vehicles and Parking.
As used in this Sectioii: (a) "Motor Vehicle" Iiieails a car, van, sport utility veliicle, bus,
truclt, recreatio~ial veliicle, ~iiotor l~ome, motorcycle, all terraii~ vehicle, utility vehicle, picltup
truclt or other motor vehicle; and (b) "Streets" iiieans the streets shown on ally Plat.
No mobile home, travel trailer, tent trailer, trailer, calilper shell, boat trailer or otlier
similar equipinelit or veliicle may be parlted, kept or stored oil the Coinmon Area. No mobile
home, travel trailer, tent trailer, trailer, cainper shell, boat trailer or other similar equipment inay
be parlted, kept or stored 011 any Lot or Parcel so as to be Visible Froin Neighbori~lg Property.
Except as permitted by this Section, no Motor Vehicle may be parlted, ltept or stored on
ally Lot, Parcel or tlie Coiii~no~l
Area. No Motor Vehicle sliall be parlted on a Parcel without the
prior written approval of tlie Board. No Motor Vehicles designed or used for carryiiig
mercliandise, supplies or equipillelit for co~nniercial purposes niay be parlted on tlie Coiii~noii
Area or on a Lot, except for the teiilporary parlting of the Motor Vehicles of contractors,
subcontractors, suppliers or vendors of tlie Association or the Owners, Lessees or Residents.
It is the iiitent of tliis Section to liniit parlting on tlie Streets. No Motor Vehicle owiied or
leased by an Owner, Lessee or Resident of a Lot limy be parlted on the Streets if space for tlie
parlting of the Motor Veliicle is available ill ally of tlie followiiig areas: (a) the garage or carport
situated on the Lot of tlie Owner, Lessee or Resident; (b) tlie driveway on tlie Lot co~lstructed as
part of the initial constructioii of Improveinelits on the Lot by the Declaraiit; or (c) a driveway
expaiisioii coiistructed on tlie Lot with the approval of tlie Desigii Review Committee.
It is also tlie intent of tliis Sectioii to liinit tlie parking of Motor Vehicles owiied or leased
by an Owner, Lessee or Residei~t of the Lot in the driveway and in any driveway expansioii
situated oil the Lot. Accordingly, Motor Vehicles owned or leased by an Owner, Lessee or
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Resident of a Lot must be parlted in tlie garage or carport situated on tlie Lot to tlie extent space
is available in tlie garage for tlie parltiiig of such Motor Veliicles. If space is iiot available in the
garage, tlieii Motor Veliicles owiied or leased by an Owner, Lessee or Resident of a Lot may be
parlted on the driveway constructed as part of the initial coiistructioii of Improvements on tlie Lot
by tlie Declarant. Parlting of Motor Vehicles owned or leased by an Owner, Lessee or Resident
of a Lot may only be parlted on a driveway expansion coi~structed with the approval of tlie
Desigii Review Coininittee if space for the parltiiig of sucli Motor Vehicles is not available either
in the garage or in tlie driveway constructed as part of the initial constructioii or Iinproveinents
on tlie Lot by the Declarant. Tlie parltiiig of a Motor Veliicle owiied or leased by an Owner,
Lessee or Resident of a Lot on a driveway expaiisioii is also subject to sucli rules and regulations
as inay be adopted by the Board.
No Motor Veliicle of aiiy ltiiid inay be stored on a Lot except in a garage, aiid no Motor
Vehicle of ally ltiiid inay be stored on the Common Area. For purposes of illustration but iiot of
limitation, a Motor Veliicle sliall be deemed stored if it is covered by a car cover, tarp or otl~er
material. Motor Veliicles owned by guests of an Owner, Lessee or otlier Resideiit may be parlted
in the driveway on a Lot or on tlie Streets or i11 designated parltiiig spaces on tlie Coininoil Area.
Recreational vehicles, s~iotor homes aiid similar vehicles owiied or leased by an Owner,
Lessee or Resideiit inay be parked in the driveway on a Lot for the purpose of loading or
unloading, subject to sucli limitations as may be establislied by the Board.
No Motor Vehicle shall be constructed, reconstructed or repaired on aiiy Lot in sucli a
manner as to be Visible From Neighboring Property, and no inoperable Motor Veliicle inay be
stored or parked on any Lot in sucli a manner as to be Visible Froin Neigliboriiig Property.
Except for eiiiergency repairs, no Motor Veliicle sliall be constructed, recoiistructed or repaired
on the Streets or any otlier part of tlie Common Area. No inoperable Motor Veliicle may be
stored or parlted oil tlie Streets or any otlier part of tlie Coininon Area.
Tlie Board shall have tlie riglit aiid power to adopt rules and regulations governing aiid
f~~rther
restricting the parlting of Motor Veliicles on Lots or the Streets and implementing tlie
provisioiis of tliis Section. In tlie event of any conflict or incoiisistency between tlie provisioiis
of tliis Sectioi~ aiid tlie rules and regulations adopted by tlie Board of Directors, tlie provisions of
this Section sliall control.
8.6
Garages.
No garage or carport shall be converted to living spaces or altered or used for purposes
wliicli would prevent the use of the garage for the parltiiig of at least two a~ltornobiles, except
tliat the Declarant inay use a garage in one or inore model lionies for a sales office and/or a
construction office. Tlie interior of all garages sliall be maintained and kept in a neat, cleaii aiid
sigl~tly condition, free of debris or unsightly objects. Garage doors shall be kept closed except
wheii tlie opening of tlie door is necessary to permit ingress or egress.
8.7
Rooftop HVAC Equipment Prohibited.
No lieatiiig, ventilating, air coiiditioiiing or evaporative cooling units or equipinelit
related thereto iiiay be mounted, installed or iiiaintaiiied on the roof of any Residence or other
building so as to be Visible From Neighboring Property.
8.8
Basketball Goals and Backboarcls.
No portable basltetball goals or bacltboards inay be ltept or used on a Lot. Perma~ie~it
basltetball goals or bacltboards attaclied to a free standing pole iiiay be constructed, installed or
iiiaiiitaiiied 011 a Lot, provided tlie location, design, ~liaterial aiid color of tlie pole aiid the
basltetball goal or bacltboard are approved by the Desigii Review Colii~iiittee and they are used
in accorda~ice witli the Associati011 Rules wliich Iilay govern the hours of use. Liglitiiig of
basltetball goals or bacltboards is prohibited.
8.9
Playgrouncl Equipment.
No jungle gyms, swiiig sets or similar playgrouiid equipment whicli would be Visible
From Neighboring Property sliall be erected or illstalled on ally Lot without tlie prior written
approval of the Desigii Review Committee.
8.10
Rental of Lots.
No Owner may lease less thaii liis entire Lot aiid the Residence situated tliereoii. All
leases inust be iii writing and inust provide that tlie terms of tlie lease are subject in all respect to
tlie provisioiis of the Coniinunlty Docuine~its and tliat any violati011 of tliis Declaratio~l or tlie
Associatioii Rules by the lessee or the other occupa~its shall be a default uiider the lease.
At least ten (10) days before coininencemeiit of tlie lease terin, tlie Owiier shall provide
tlie Associatioii with tlie following information: (a) the cornmenceine~it date aiid expiratioii date
of the lease tern; (b) tlie iiaiiies of each of the Lessees aiid eacli other person who will reside in
tlie Residei~ce during the lease teriii; (c) tlie address and teleplio~ie number at whicli the Owiier
can be coiltacted by the Associatioii during tlie lease term; and (d) tlie name, address aiid
teleplioiie number of a persoii other than the Owiier who111 tlie Associatioil call coiitact ill the
eveiit of ail elnergelicy i~ivolviiig tlie Lot. Any Owner who leases liis Lot and tlie Residence
situated thereon iiiust provide tl~e Lessee witli copies of tliis Declaration, tlie Design Guideliiies
aiid tlie Association Rules.
Ally lease of a Lot or Residelice situated thereoil inust be for an initial terin of at least six
(6) months.
Tlie Owner shall be liable for ally violation of this Declaration, the Desigii
Guideliiies or the Associatioli Rules by the Lessees or other persons residing in the Residence
and their guests or iiivitees and, in tlie eveiit of any such violation, tlie Owner, up011 deinand of
tlie Association, sliall immediately take all necessary actions to correct ally such violations;
provided, liowever, that the Owner sliall not be liable for any dainage to the Comrnoii Area or tlie
Lots caused by tlie Lessees or otlier persons residing in the Residence or by their guests or
invitees.
8.1 1
Screening Materials.
All screening materials, whether fences, hedges or walls, sliall be maintained aiid
replaced from time to time on the Lots by the Owners thereof in accordance with the origiiial
coiistructioii of such Iiiiproveinents by a Declarant or as approved by tlie Design Review
Coinniittee pursuaiit to Article 3.
8.12
Lights.
Except as initially installed by the Declarant, no spotliglits, floodligllts or otlier liigli
intensity lighting shall be placed or utilized upoii any Lot or any structure erected tliereoii whicli
in any manlier will allow liglit to be directed or reflected on any other property except as
approved by the Desigii Review Committee.
8.13
Window Cover Materials.
All window coverings facing tlie street must show white or beige colors unless otlierwise
approved in writing by tlie Desigii Review Committee. No reflective materials (including, but
without limitation, aluminum foil, reflective screens or glass, niirrors or siiiiilar items) and no
sheets, bedding or similar iteiils sliall be installed or placed upoii tlie outside or inside of any
windows of a Residence without the prior written approval of the Board. No enclosures, drapes,
blinds, shades, screens or otlier iteiils affecting the exterior appearance of a Residence sliall be
constructed or installed without tlie prior written conselit of tlie Board.
8.14
Trash Containers and Collection.
No garbage or trash sliall be placed or kept on any Lot or Parcel except in covered
containers of a type, size and style wliicli are approved by the Desigii Review Committee. In no
event shall sucli containers on a Lot or Parcel be rnaiiitained so as to be Visible Froin
Neighboriiig Property except to malte the saiiie available for collectioii aiid then only for tlie
shortest time reasoilably necessary to effect sucli collection. All r~~bbisli,
trash, or garbage sliall
be reiiioved from Lots aiid Parcels and sliall not be allowed to accumulate tliereon. No outdoor
iiiciiierators shall be ltept or ~iiaiiitaiiied on any Lot or Parcel.
8.1 5
Rights of Builders.
Notwithstanding any other provision of this Declaration to the contrary, a Builder sliall
have the right to maintain model homes and sales offices on Lots or Parcels owned or leased by
the Builder and to coiistruct and maintain parltiiig areas for tlie purpose of accoininodatiiig
persons visiting sucli inodel lioiiies aiid sales offices provided: (a) tlie plans and specifications for
tlie inodel hoines and sales offices, aiid related landscaping, have been approved in writing by
the Desigii Review Committee; (b) the location and design of the parlting areas iiicidental to such
iiiodel hoines and sales offices has been approved in writing by tlie Design Review Committee;
(c) tlie opening aiid closing hours for such model lionies and sales offices have been approved in
writing by the Design Review Committee; aiid (d) the construction, operation and maintenance
of sucli iiiodel lionies aiid sales offices otlierwise complies with all provisions of this
Declaration. Any lio~ne constructed as a niodel hoiiie sliall cease to be used as a niodel hoilie
C \I>OCUME- I\dcd\LOCAI.S- LYTem~\mwtem11 f4\\\~sEB tmp
and any sales office shall cease to be used as a sales office at any time the Builder is not actually
engaged in the construction and sale of Lots. Notwithstanding any other provisio~l of this
Declaratioll to the contrary, a Builder nlay store supplies of brick, block, lumber and other
building materials on a Lot or Parcel owned or leased by a Builder during the course of
construction of Iniprove~nents on Lots or Parcels provided such materials are kept in areas
approved in writing by the Design Review Committee and such materials are ltept and stored in
conipliance wit11 the Design Guidelines.
Norinal constructio~~
activities of the Builder in
connection wit11 the constr~~ction
of I~nprove~ne~lts
shall not be considered a nuisance or
otherwise prohibited by this Declaration. A Builder constructing Inlprove~nents on Lots or
Parcels shall lteep the Lots and Parcels in a clean, safe and neat condition free of weeds, trash
and debris throughout the constr~~ction
process. No approval or consent by the Design Review
Committee under this Section 8.15 shall be unreasonably witl~held or delayed and any request for
approval by a Builder in writing that is not denied within forty-five (45) days following
subnlission sliall be deemed approved.
8.16
Temporary Occupancy and Temporary Buildings.
No trailer, basement of any incomplete building, tent, shack, garage or barn, and no
tenlporary buildings or structures of any Itind, sl~all be used at ally time for a residence, either
tenlporary or per~nanent. Temporary buildings, trailers or other structures used during the
construction of Ilnprovenlents approved by the Design Review Co~nniittee sl~all be removed
inilnediately after the co~npletion of construction, and in no event shall any such buildings,
trailers or other structures be ~naintained or ltept 011 any property for a period in excess of twelve
montl~s without the prior written approval of the Design Review Committee.
8.17
Antennas.
Except for antezmas, satellite dishes and other over-the-air receiving devices covered by the
FCC rules govenling Over-the-Air Reception Devices; Television Broadcast Service and Multi-
channel Multipoint Distribution Service (the "FCC Rule9'), no antenna for the transmission or
reception of television or radio signals or for access to the intelllet shall be installed on any Lot or
Parcel unless approved by the Board of Directors. Any antenna, satellite dish or other receiving
device covered by the FCC Rule may be installed on a Lot or Parcel without the prior approval of
the Board of Directors provided the antenna, satellite dish or receiving device is placed inside a
Residence or other Building or is placed on the portion of the Lot or Parcel which is the least
Visible Froin Neighboring Propel-ty and does not interfere with the viewer's ability to install,
inai~ltain or use tl~e antenna, satellite dish or receiving device. The Board of Directors shall l~ave
the right to adopt rules and regulatiolls wit11 respect to the il~stallation and placement of antennas,
satellite dishes and other receiving devices; provided, however, that the Board of Directors shall
not impose or enforce any rule or regulation whicl~ is inconsistent wit11 or prohibited by the FCC
Rule.
8.1 8
Utility Service.
No lines, wires, or other devices for the comnlunication or tra~lsinission of electric
current or power, including telephone, television, and radio signals, shall be erected, placed or
~naintained anywhere in or upon any Lot or Parcel unless the same shall be contained ill conduits
or cables installed and maintained underground or concealed in, under or on buildings or other
3 8
structures approved by the Design Review Committee. No provision of tliis Declaration sliall be
deenied to forbid the erection of teinporary power or telephone structures incident to tlie
construction of buildings or structures approved by the Design Review Committee.
8.19
Overhead Encroachments.
No tree, shrub, or planting of any ltiiid on aiiy Lot or Parcel sliall be allowed to overliang
or otherwise to eiicroach upon aiiy sidewalk, street, pedestrian way or other area from ground
level to a lieiglit of eight (8) feet without the prior written approval of tlie Design Review
Committee.
8.20
Signs.
No signs wliatsoever (including, but not limited to, "for sale" or "for lease" signs) inay be
erected, posted or displayed on ally Lot or Parcel in a location that is Visible Froin Neighboring
Property without tlie prior written approval of the Design Review Conzmittee, except for signs
constructed or erected by the Declarant or by tlie Association.
8.21
Drainage.
No Residence, str~~cture,
building, landscaping, fence, wall or other Improvement shall be
constructed, installed, placed or nlaintained in any manner that would obstruct, ii~terfere with or
change tlie direction or flow of water 111 accordance witli tlie drainage plans for White Tank
Footl~ills, or any part thereof', or for any Lot or Parcel as sliown on the drainage plans 011 file witli
the County.
ARTICLE 9
DISPUTE RESOLUTION
9.1
Defined Terms. As used in tliis Article 9, the following terins shall the ineaning
set forth below:
(a)
"Alleged Defect" means any alleged defect or deficiency
ill the plaiiniiig, design, engineering, grading, coiistruction or
developinellt of the of tlie Colnnion Area or any Lot, or tlie
buildings, Residences and other struct~~res or in~provesnents
located thereon, by a Declarant Party including, without limitation,
any failure to comply witli applicable buildiiig codes or federal,
state or local laws, ordinances or reg~~lations
or any failure to
comply with any express or implied warranty or standard of
workma~lship.
(b)
"Declarant Party" means:
(i) the Declarant aiid its
members, managers, officers and employees; (ii) the entity which
platted the Project if different from but affiliated with Declarant;
(iii) the general contractor for the Project; (iv) the subcontractors,
material suppliers, labor suppliers, architects, engineers and
consultants of ally of the said contractors, iilcludli~g but not linlited
to their respective members, managers, directors, officers, partners,
employees, agents and indepeildeilt contractors; or (v) any
einployee or other represeiltative of the Declarant who serves as a
director or officer of the Association.
(c)
"Claim" means: (i) any claim or cause of action by a
Claimant against a Declarant Party arising out of or related in any
way to an Alleged Defect, including, witllout limitation, any claiin
or cause of action for breach of express or iinplied warranties or
that a Declarant Party was negligent in the planning, design,
engineering, grading, construction or developnlent of the Project;
or (ii) any claiin or cause of action against a Declarant Party
arising out of or in any way related to the developineilt of the
Project or the inanageinent or operation of the Association,
including, without limitation, any claiin for negligence, fraud,
iiltei1tional misconduct or breach of fiduciary duty.
9.2
Agreement to Resolve Certain Disputes Without Litigation. The Association,
all Owilers and all Declarant Parties agree that it is in the best interests of the Association, the
Owners and the Declarant Parties to encourage the amicable resolution of Clainls and to resolve
Claiins witllo~tt the e~notioilal and financial costs of litigation. Therefore the Association, all
Owners and all Declarant Parties agree that all Clainls sl~all be resolved exclusively in
accordance with the dispute resolution procedures set forth in this Article 11.
9.3
Notice of Alleged Defect. The Association or any Owner who beco~nes aware of
any Alleged Defect whicll could be the basis for a Claim against ally Declarant Party shall give
written notice (the "Notice of Alleged Defect") proinptly to each Declarailt Party who could be
responsible for the Alleged Defect. The Notice of Alleged Defect sllall state plainly and
concisely:
(a) the nature and location of the Alleged Defect; (b) the date on whicl1 the
Association or Owner giving the Notice of Alleged Defect first became aware of the Alleged
Defect; and (c) whether the Alleged Defect has caused any damage to any persons or property.
Following the receipt by a Declarant Party of a Notice of Alleged Defect, the Declarant Party
and any of its employees, agents, contractors, subcontractors and consultants shall llave the right,
upon reasonable notice to the Association or Owiler giving the Notice of Alleged Defect to enter
oilto or into, as applicable, the Coininon Area or any Lot for the purposes of iixspectiilg a~ndior
conducting testing to determiile the existence, nature and extent of the Alleged Defect and, if
deemed necessary by the Declarant Party, to correct, repair and/or replace tlze Alleged Defect. In
conducting such inspection, testing, repairs andlor replacement, the Declarailt Party shall be
entitled to take any actions it deeins reasonable and necessary under the circunlstances. Nothing
set forth in this Section 9.3 shall be coilstrued to impose any obligation on any Declarailt Party to
inspect, test, repair or replace any itell1 or Alleged Defect for whicll the Declarant Party is not
otherwise obligated under applicable law or any warranty provided by the Declarant or any other
Declarant Party. The right of a Declarant Party and its employees, agents, contractors and
coiisultaiits to enter, inspect, test, repair andlor replace under this Sectloii sliall be irrevocable
and inay iiot be waived or otlierwise teriiiinated, except by written document, in recordable forin,
executed and recorded by tlie Declaraiit Party. In 110 event sliall any statute of liiiiitatioiis be
tolled during tlie period in which a Declaraiit Party conducts any inspection, testing, repair or
replacement of tlie Alleged Defect. If the Alleged Defect is iiot repaired or replaced to the
satisfaction of the Associatioii or Owiier giving the Notice of Alleged Defect witliiii sixty (60)
days after the Notice of Alleged Defect is given to the Declaraiit Party, tlieii the Associatioii or
Owiier inay proceed witli the preparation of the delivery of a Notice of Claiin as provided in
Section 9.4.
9.4
Notice of Claim. The Associatioii or ally Owiier wlio coiiteiids or alleges to liave
a Claiiil (a "Claimant") against ally Declaraiit Party (a "Respondent") sliall notify each
Respoiideiit in writing of tlie Claiin (the "Claim Notice"), stating plainly and concisely: (a) tlie
nature of Claim, including, date, time, location, Persolis involved, and Respondelit's role ill tlie
Claiiii; (b) tlie factual and legal basis of the Claiin; aiid (c) what Claiiiiaiit wants Respoiideiit to
do or iiot do to resolve tlie Claiiii. In tlie evelit the Claiiiiant is tlie Association and tlie Claim
iiivolves an Alleged Defect, the Association must provide written iiotice to all Members prior to
deliveriiig a Claiiii Notice to a Declaraiit Party or initiating any legal action, cause of action,
proceeding, or arbitration against ally Declarant Party which notice sliall (at a iniiiimuni) include:
(a) a descriptioii of tlie Claiiii; (b) a descriptioii of the attempts of Declarant or any other
Declarant Party to correct such Alleged Defect aiid tlie opportunities provided to Declaraiit or
any other Declaraiit Party to correct sucli Alleged Defect; (c) a certification from an engineer
licensed ill the State of Arizona that sucli Alleged Defect exists along with a descriptioii of tlie
scope of work liecessary to cure sucli Alleged Defect aiid a resuiiie of sucli engineer; (d) the
estiinated cost to repair such Alleged Defect; (e) tlie name ancl professional background of tlie
attoriley retained by the Association to pursue tlie Claim aiid a descriptioii of tlie relationsliip
between such attorney and ineiiiber(s) of the Board of Directors (if any); (f) a descriptioii of tlie
fee arrangement between such attorney and the Associatioii; (g) the estiinated attorneys9 fees aiid
expert fees and costs necessary to pursue tlie Claim and tlie source of tlie f ~ ~ n d s
which will be
used to pay sucli fees and expenses; (11) tlie estimated time necessary to coiiclude the actioii; aiid
(i) an affiriiiative stateinelit from tlie Board of Directors that tlie action is in tlie best interests of
tlie Association and its Members. If the Alleged Defect is alleged to be the result of an act or
oiiiissioii of a person liceiised by tlie State of Arizona under Title 20 or Title 32 of the Arizona
Revised Statutes (a "Licensed Professional"), then tlie Claiin Notice from tlie Associatioii must
be accompanied by an affidavit from a Licensed Professioiial in tlie same discil?liiie as the
Licensed Professional alleged to be responsible for the Alleged Defect. The affidavit iiiust
contaiii the inforiliatioil required to be coiitained iii a prelinlinary expert opiiiioii affidavit
subnlitted pursuant to Section 12-2602B of the Arizona Revised Statutes.
9.5
Mediation. The Claimant aiid tlie Respoiideiit shall negotiate in good faith in ail
attempt to resolve tlie claim. If the Parties do not resolve the Claim tlirougli iiegotiatioii within
tliirty (30) days after the date of the Claiin Notice or witliin sucli longer period as may be agreed
upon by the Parties ("Teninination of Negotiations"), Claiinant sl~all have thirty (30) additioiial
days witliiii wliicli to submit the Claim to iiiediatioii by the American Arbitration Associatioii
("AAA") or such otlier independelit inediatioii service selected by mutual agreeinelit of the
Claiinalit and the Respondent. If Claimant does iiot subinit the Claiiii to mediation witliiii tliirty
(30) days after Terininatioii of Negotiations, Claiinaiit shall be deenied to liave waived tlie
Claim, and Respondent shall be released and discharged from any and all liability to Claimant on
account of such Claim. If the Parties do not settle the Claiin within thirty (30) days after
subn~ission of the inatter to the lnediation process, or within such time as deteriniiled reasonable
or appropriate by the mediator, the nlediator shall issue a notice of ternlinatio~l of the mediation
proceediilgs ("Terinination of Mediation Notice"). The Termination of Mediation Notice shall
set forth when and where the Parties met, that the Parties are at an impasse, and the date that
nlediation was terinii~ated.
9.6
Binding Arbitration. In the event a Claim is not resolved by mediation, the
Clainlant shall have ninety (90) days after the date of the Ternlination of Mediation Notice to
subinit the Clainl to binding arbitration in accordance wit11 this Section 9.6. If the Claiinant fails
to tinzely subinit the Claim to arbitration, then the Claiin shall be deemed waived and abandoned
and the Respondeilt shall be relieved of any and all liability to Clairnant arising out of the Claim.
A Claiinant nlay only submit a Claim in arbitration on its own behalf. No Clainlant inay submit
a Claim in arbitration as a represeiltative or nlenlber of a class, and no Clainl may be arbitrated
as a class action. The Association, the Owilers and all Declarant Parties agree that all Clainls
that are not resolved by negotiation or mediation shall be resolved exclusively by arbitration
conducted in accordance wit11 this Section 9.6. The Association, the Owners and all Declarant
Parties waive their right to have a Claim resolved by a court, including, witl~out limitation, the
right to file a legal action as the representative or ineinber of a class or in ally other
representative capacity. The Claiinant and Respondent shall cooperate in good faith to assure that
all Declarant Parties wl1o may be liable to the Claiinal~t or Respondent with respect to the Claim
are made parties to the arbitration. If the Claimant subinits the Clainl to binding arbitration in
accordance with this Section 9.6, the arbitration shall be conducted in accordance with the
following rules:
(a)
Initiation of Arbitration. The arbitration shall be initiated by
either party delivering to the other a Notice of Intention to Arbitrate as provided
for in the AAA Coinmercial Arbitration Rules or such other rules as the AAA
may deternline to be applicable (the "AAA R~iles").
(b)
Governing Procedures. The arbitration shall be conducted in
accordai~ce with the AAA Rules and A.R.S. § 12-1501, et seq. In the event of a
conflict between the AAA Rules and this Section 9.6, the provisions of this
Section 9.6 shall govern.
(c)
Appointment of Arbitrator. The parties shall appoii~t a single
Arbitrator by m~~tual
agreement. If the parties have not agreed within tell (10)
days of the date of the Notice of Intention to Arbitrate on the selection of an
arbitrator willing to serve, the AAA shall appoi~~t
a qualified Arbitrator to serve.
Any arbitrator chosen in accordance with this Subsectiol~ (c) is referred to in this
Section 9.6 as the "Arbitrator".
( 4
Qtialifications of Arbitrator. The Arbitrator shall be neutral and
impartial. T11e Arbitrator sl~all be f ~ ~ l l y
active in such Arbitrator's occupation or
profession, knowledgeable as to the subject matter involved in the dispute, and
experienced in arbitration proceedings.
T11e foregoing shall not preclude
otl~erwise qualified retired lawyers or judges from acting as the Arbitrator.
(e)
Disclosure.
Any candidate for the role of Arbitrator shall
pron~ptly disclose to the parties all actual or perceived conflicts of interest
involving the dispute or the parties. No Arbitrator may serve if such person has a
conflict of interest involvillg the subject matter of the dispute or the parties. If an
Arbitrator resigils or becoines unwilling to continue to serve as an Arbitrator, a
replacemeilt shall be selected in accordance with the procedure set forth in
Subsection 9.6 (c).
(-0 Compensation. The Arbitrator shall be fully compensated for all
time spent in connection with the arbitration proceedings in accordance with the
Arbitrator's usual hourly rate unless otherwise agreed to by the parties, for all time
spent by the Arbitrator in connection with the arbitration proceeding. Pending the
final award, the Arbitrator's coinpensatioil and expenses shall be advanced equally
by the parties.
(g)
Preliminan1 Hearing. Within thirty (30) days after the Arbitrator
has been appointed, a preliminary hearing anlong the Arbitrator and co~ulsel for
the parties shall be held for the purpose of developing a plan for tl~e inanagen~ent
of the arbitration, whicl~ shall then be inenlorialized in am al~propriate order. The
inatters which nlay be addressed include, in addition to those set forth in the AAA
Rules, the following: (i) definition of issues; (ii) scope, timing and types of
discovery, if any; (iii) schedule and place(s) of hearings; (iv) setting of other
timetables; (v) subn~ission of inotioi~s and briefs; (vi) whether and to what extent
expert testin~ony will be required, whether the Arbitrator sl~ould engage one or
more neutral experts, and whether, if this is done, engagement of experts by the
parties can be obviated or minimized; (vii) whether and to what extent the direct
testin~ony of witnesses will be received by affidavit or written witness statement;
and (viii) ally other inatters which may pronlote the efficient, expeditious, and
cost-effective conduct of the proceeding.
(11)
Management of the Arbitration. The Arbitrator shall actively
manage tlze proceedings as the Arbitrator deenls best so as to n~alce the
proceedings expeditious, economical and less burdensome than litigation.
(i)
Conficlentiality.
All
papers,
documents, briefs,
written
cominunication, testiinony and transcripts as well as any and all arbitration
decisions shall be confideiltial and not disclosed to anyone other than the
Arbitrator, the parties or the parties9 attorileys and expert witnesses (where
applicable to their testimony), except that ~ipon prior written consent of all parties,
such. i~lforination may be divulged to additioi~al third parties. All third parties
shall agree ill writing to keep such inforination confidential.
(i 1
. Hearings inay be held at any place within Maricopa
County, Arizona designated by the Arbitrator and, in the case of particular
witnesses not subject to subpoeila at the usual hearing site, at a place where such
witilesses call be compelled to attend.
(I<)
Final Award. The Arbitrator shall promptly (but, ill no evelit later
t11a11 sixty (60) days following the coilclusion of the proceedings or such longer
period as the parties mutually agree) deteriniile the claims of the parties and
render a final award ill writing. The Arbitrator may award the prevailiilg party in
the proceediilg all or a part of such party's reasoilable attorneys' fees and expert
witness fees, talcing illto account the final result of arbitration, the coilduct of the
parties and their counsel in the course of the arbitration, and other relevant
factors. The Arbitrator shall not award ally punitive damages. The Arbitrator
shall not award indirect, coilsequeiltial or special damages regardless of whether
the possibility of such damage or loss was disclosed to, or reasonably foresee11 by
the party against whom the claiin is made. The Arbitrator shall assess the costs of
the proceediilgs (including, without limitation, the fees of the Arbitrator) against
the non-prevailing party.
9.7
Right to Enter, Inspect, Repair and/or Replace. Following tlze receipt by a
Declarailt Party of a Claim Notice with respect to an Alleged Defect, the Declarant Party and its
employees, agents, contractors, subcoiltractors and coilsultailts shall have the right, upon
reasoi~able notice to Claimant and during ilorinal busiiless hours, to enter onto or into, as
applicable, the Corninoil Area and ally Lot for the purposes of iilspecting and/or coilducting
testing to deterinine the validity of the Claim and, if deemed necessary by the Declarant Party, to
correct, repair and/or replace the Alleged Defect. In coilductiilg such inspection, testing, repairs
and/or replacement, the Declarant Party shall be entitled to take any actioils as it shall deem
reasonable and necessary under the circumstances. Nothing set forth in this Sectioil 9.7 shall be
constr~~ed
to impose ally obligatioil on ally Declarant Party to inspect, test, repair, or replace ally
itell1 or Alleged Defect h r which the Declarant Party is not otherwise obligated. The right of a
Declarailt Party and its employees, agents, coiltractors and consultailts to enter, inspect, test,
repair and/or replace reserved 11ereby shall be irre\~ocable and may 11ot be waived or otl~erwise
termii~ated except by a written document, ill recordable form, executed and Recorded by the
Declarant Party. In no event shall ally statutes of limitations be tolled during the period in which
a Declarailt Party coilducts ally illspection, testing, repair or replacemerit of any ~ l l e ~ e d
Defects.
9.8
Use of Funds. Any judgment, award or settleinelit received by a Claimant in
coni~ection with a Claim involving an Alleged Defect shall first be used to correct and/or repair
such Alleged Defect or to reimburse the Clain~ailt for ally costs actually illcurred by such
Claiinant ill correctiilg and/or repairing the Alleged Defect. If the Claimait receiviilg the
judgment, award or settlement is the Association, ally excess funds reinaiiliilg after repair of such
Alleged Defect shall be paid into the Association's reserve f~md.
9.9
Approval of Arbitration or Litigation. The Associatioil shall not deliver a
Claim Notice to any Declarant Party or commence any legal action or arbitratioiz proceeding or
illcur legal expenses (including without limitation, attori~eys' fees) in coililection wit11 any Claim
without the writtell approval of Owilers entitled to cast more than seventy-five perceilt (75%) of
the total votes in the Association, excluding the votes of any Owner who would be a defendant in
such proceediags. The Associatioil must pay for ally such legal action or ~l~ediation
or arbitratioil
proceeding with inonies that are specifically collected for such purposes and nlay not borrow
inoney or use reserve funds or other inoilies collected for specific Associatioi~ obligations other
illan legal fees. In tlle event that the Associatioil conlinellces ally legal action or arbitration
proceediiig i~lvolviilg a Claim, all Owilers must notify prospective purcl~asers of their Lot of such
legal action or arbitratioil proceeding and must provide such prospective purcllasers with a copy
of the notice received from tlze Association in accordance with Section 9.4.
9.10
Statute of Limitations. All statutes of limitations applicable to Claiins shall
apply to the commencemei~t of arbitration proceedings under Section 9.6. If the arbitratioil
proceedii~gs are not initiated within the time period provided by Arizoila law for tlie filing of a
legal action with respect to the Clam, the Claim shall forever be barred.
9.11
Fecleral Arbitration Act.
Because Inally of the nlaterials and products
ii~corporated illto the Project are nlanufactured in other states, the development and conveyance
of the Lots evidences a transaction involving interstate conlinerce and the Federal Arbitration
Act (9 U.S.C. $1, @, m.) now in effect or as it may be l~ereafter amended, will govern the
interpretation and enforcement of the arbitration provisioils of this Declaration.
9.12
Conflicts. In the event of ally conflict between this Article 9 and any other
provision of the Condominium Documents, this Article 9 shall control. In tlie event of any
coi~flict between the provisions of this Article 9 and the terins of any express warranty provided
to a Purchaser by tlle Declarant or a Builder or ally tllird party honle warranty coinpany in
conilectioil wit11 the purchase of a Lot froin the Declarant or a Builder, tlle provisions of the
express warranty shall control; provided, however, that if the Claim is being asserted by the
Association, the approval of tlie inembers of the Associatioil required by Section 9.9 must be
obtained prior to tlle Associatioll deinanding arbitratioil of the Claim or filing any legal action
wit11 respect to the Claim.
BY ACCEPTANCE OF A DEED OR BY ACQUIRING A LOT OR PARCEL, EACH
PERSON,
FOR
HIMSELF,
HIS
HEIRS,
PERSONAL
REPRESENTATIVES,
SUCCESSORS, TRANSFEREES AND ASSIGNS, AGREES TO HAVE ANY CLAIM
RESOLVED ACCORDING TO THE FEDERAL ARBITRATION ACT, THE ARZIONA
REVISED STATUTES PERTAINING TO THE ARBITRATION OF DISPUTES TO THE
EXTENT NOT INCONSISTENT WITH THE FEDERAL ARBITRATION ACT AND
THE PROVISIONS OF THIS ARTICLE 9 AND WAIVES THE RIGHT TO PURSUE
ANY DECLARANT PARTY IN ANY MANNER OTHER THAN AS PROVIDED IN
ARTICLE
9.
THE
ASSOCIATION,
EACH
OWNER
AND
DECLARANT
ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL CLAIMS AS
PROVIDED IN THIS ARTICLE 9, THEY ARE GIVING UP THEIR RESPECTIVE
RIGHTS TO HAVE SUCH CLAIM TRIED BEFORE A JURY. THE ASSOCIATION
AND EACH OWNER FURTHER WAIVE THEIR RESPECTIVE RIGHTS TO AN
AWARD OF PUNITIVE AND CONSEQUENTIAL DAMAGES RELATING TO A
CLAIM. BY ACCEPTANCE OF A DEED OR BY ACQUIRING A LOT OR PARCEL,
EACH OWNER VOLUNTARILY ACKNOWLEDGES THAT HE IS GIVING UP ANY
RIGHTS HE MAY POSSESS TO PUNITIVE AND CONSEQUENTIAL DAMAGES OR
THE RIGHT TO A TRIAL BEFORE A JURY RELATING TO A CLAIM.
C:\DOCUME-
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IF AN OWNER OR THE ASSOCIATION FILES A CIVIL ACTION ASSERTING ANY
CLAIM AGAINST ANY DECLARANT PARTY INSTEAD OF COMPLYING WITH
THE DISPUTE RESOLUTION PROVISIONS OF THIS ARTICLE 9 (OR THE OTHER
DISPUTE RESOLUTION PROVISIONS, AS APPLICABLE), THE DECLARANT
PARTY AGGRIEVED BY THE FILING MAY APPLY TO THE MARICOPA COUNTY
SUPERIOR COURT FOR AN ORDER DISMISSING THE CIVIL ACTION AND
COMPELLING THE FILING PARTY TO SUBMIT THE CLAIM TO THE DISPUTE
RESOLUTION PROVISIONS APPLICABLE THERETO. THE APPLYING PARTY
SHALL BE ENTITLED TO IMMEDIATE ENTRY OF AN ORDER OF DISMISSAL
AND A MANDATORY AWARD OF ATTORNEY'S FEES AND TAXABLE COSTS
INCURRED IN COMPELLING COMPLIANCE WITH THE APPLICABLE DISPUTE
RESOLUTION PROVISION.
IN THE EVENT THE ARBITRATION PROVISIONS OF THIS ARTICLE 9 ARE HELD
NOT TO APPLY OR ARE HELD INVALID OR UNENFORCEABLE FOR ANY
REASON, ALL DISPUTES SHALL BE TRIED BEFORE A JUDGE IN A COURT OF
COMPETENT JURISDICTION WITHOUT A JURY.
EACH OWNER AND THE
ASSOCIATION HEREBY WAIVE AND COVENANT NOT TO ASSERT THEIR
CONSTITUTIONAL RIGHT TO TRIAL BY JURY OF ANY DISPUTES, INCLUDING,
BUT NOT LIMITED TO, DISPUTES RELATING TO CONSTRUCTION DEFECTS,
MISREPRESENTATION OR FAILURE TO DISCLOSE MATERIAL FACTS. THIS
MUTUAL WAIVER OF JURY TRIAL SHALL BE BINDING UPON THE RESPECTIVE
SUCCESSORS AND ASSIGNS OF SUCH PARTIES AND UPON ALL PERSONS AND
ENTITIES ASSERTING RIGHTS OR CLAIMS OR OTHERWISE ACTING ON
BEHALF OF DECLARANT, ANY OWNER, THE ASSOCIATION OR THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
ARTICLE 10
INSURANCE
1 0 .
Scope of Coverage.
Coniii~eiiciiig not later than the time of the first conveyance of a Lot or Parcel to a
Purchaser, tlie Association shall maintain, to the extent reasonably available, the followiiig
insurance coverage:
(a)
Comprehensive
general
liability
insurance,
i~icluding niedical payments insurance, in an amount deteriiiiiied
by tlie Board, but not less tl~an $1,000,000. Such ins~~raiice
sl~all
cover all occurrences coniiiioiily insured against for death, bodily
injury and property daiiiage arising out of or in coniiectioii witli tlie
use, ownership or inaintenance of the Areas of Association
Responsibility and all other portions of White Tank Foothills
wliicli the Association is obligated to inaintain under this
Declaration, and shall also iilclude hired autolnobile and non-
owned autonlobile coverages with cost liability endorseinents to
cover liabilities of the Owners as a group to an Owner;
(b)
Property insurance on all Areas of Association
Responsibility insuring against all risk of direct physical loss,
insured against in a11 ainount equal to tl~e lnaxin~um insurable
replaceinent value of the Areas of Association Responsibility, as
determined by the Board; provided, however, that the total anlount
of insurance after application of any deductibles shall not be less
than one hundred percent (1 00%) of the c~~rrent
replaceinellt cost
of the insured property, exclusive of land, excavations, foundations
and other items normally excluded froin a property policy.
(c)
Worl<men's conlpensation illsurance to the extent
necessary to ineet the requiremeilts of the laws of Arizona;
(d)
Such other insurance as the Board shall deternline
from time to tiiile to be appropriate to protect the Association or
the Owners;
(e)
The insurance policies purcl~ased by the Association
sl~all, to the extent reasoilably available, contain tl~e following
provisions: (i) that there shall be no subrogation with respect to
the Association, its agents, servants, and employees, with respect
to Owners and ineil~bers of their l~ousehold; (ii) no act or onlission
by any Owner, unless acting within the scope of his authority on
behalf of the Association, will void tl~e policy or be a condition to
recovery on the policy; (iii) that the coverage afforded by such
policy shall not be brought into contributioii or proratioil with ally
insurallce wl~ich may be purcl~ased by Owners or their nlortgagees
or beneficiaries under deeds of trust; (iv) a "severability of
interest" endorsement wllicl~ shall preclude the illsurer from
dei~yiilg the claim of an Owner because of the negligent acts of tlie
Association or other Owners; (v) statenleilt of the iianie of the
insured as the Association ; and (vi) for policies of l~azard
insurance, a standard mortgagee clause providing that the
insurance carrier shall notifj~ the first mortgagee named in tlie
policy at least tell (10) days in advance of the effective date of any
substantial modification, reductioi~ or cancellation of tl~e policy.
The preiniunls for any insurailce obtained by the Association
pursuant to this Section 10.1 sl~all be included in the budget of the
Association and sl~all be paid by the Association.
10.2
Certificates of Insurance.
An iiisurer tliat has issued an iiisuraiice policy ulider tliis Article 10 sliall issue a
certificate or a iiieinoraiidum of iiisuraiice to tlie Associatioii and, upon request, to any Owiier,
mortgagee or beneficiary uiider a deed of trust. Any iiisuraiice obtained pursuaiit to tliis Article
10 iiiay iiot be caiicelled until thirty (30) days after notice of tlie proposed cancellatioil has been
-
inailed to tlie Associatioii, eacli Owner aiid eacli iiiortgagee or beneficiary under a deed of trust
to whom certificates of insurance have been issued.
10.3
Payment of Insurance Proceeds.
With respect to ally loss to any Area of Associatioii Respoiisibility covered by property
iiisuraiice obtained by tlie Association in accordalice with tliis Article 10, tlie loss sliall be
adjusted with the Associatioii, and tlie iiisuraiice proceeds sliall be payable to tlie Associatioli aiid
iiot to any mortgagee or beneficiary uiider a deed of trust. Subject to tlie provisions of Section
10.4,
tlie proceeds sliall be disbursed for tlie repair or restoratioii of tlie damage to tlie Area of
Association Responsibility.
10.4
Repair and Replacement of Damaged or Destroyed Property.
Aiiy portioii of tlie Areas of Association Responsibility wliicli is dainaged or destroyed
sliall be repaired or replaced proinptly by tlie Associatioii unless repair or replacelneiit would be
illegal uiider any state or local liealth or safety statute or ordinance. The cost of repair or
replacement in excess of iiis~lrance proceeds aiid reserves shall be paid by tlie Association. If all
of the Areas of Association Responsibility are iiot repaired or replaced, iiisuralice proceeds
attributable to tlie dainaged Areas of Association Respoilsibility sliall be used to restore tlie
daiiiaged area to a coliditioii wliicli is iiot ill violation of ally state or local liealth or safety statute
or ordinalice.
ARTICLE 11
GENERAL PROVISIONS
11.1
Enforcement.
The Associatioii inay enforce tlie Coiilrnunity Docuineiits in ally manlier provided for in
the Coiniiiuiiity Doc~riiieiits or by law or in equity, including, but not limited to:
(a)
ilnposiiig reasonable monetary fiiies after
notice and an opportunity to be heard by tlie Board is giveii to the
Owiier or otlier violator.
Ail Owiier sliall be respoiisible for
payment of any fine levied or imposed against a Lessee or
Resident of tlie Owner's Lot or by any guest or iiivitee of the
Owiier or any Lessee or Resident;
(b)
suspendiiig an Owner's right to vote;
(c)
suspending any Person's right to use any
recreational facilities situated on tl~e Coinillon Area; provided,
however, nothing herein shall authorize the Board to limit ingress
or egress to or from a Lot or Parcel;
(d)
suspending any services provided by the
Association to an Owner or the Owner's Lot or Parcel if the Owner
fails to pay any Assessment or other cllarge owed to tlle
Association within fifteen (15) days after denland for payment is
made;
(e)
exercising self-help or talcing action to abate
any violation of the Coinmunity Documents;
(f)
requiring an Owner, at the Owner's expense,
to senlove any structure or In~proveinent on sucls Owner's Lot or
Parcel in violation of this Declaration and to restore the Lot or
Parcel to its previous condition and, upon failme of the Owner to
do so, the Board or its designee shall have the right to enter tlse
property, remove the violation and restore the property to
substantially the same condition as previously existed and any sucl~
action shall not be deemed a trespass;
(6)
witliout liability to any Person, prollibiting
any contractor, subcontractor, agent, enlployee or other invitee of
an Owner who fails to coislply with the terins and provisions of this
Declaration or the Design Guidelines from continuing or
performing any furtller activities in White Tank Footllills;
(11)
towing vellicles which are parlted on
Conlnloil Area in violation of this Declaration or the Association
Rules;
(i)
filing a suit at law or in equity to enjoin a
violation of the Community Documents, to conlpel compliailce
with the Coinillunity Documents, to recover fines or nloney
danlages or to obtain such other relief as to which the Association
may be entitled;
Cj)
record a written notice of a violation by any
Owner, Lessee or Residelit of any restriction or other provision of
the Community Documents. The notice sllall be executed by an
officer of the Association and shall contain substantially the
followiilg inforn~atioi~:
(i) the nanle of the Owner, Lessee or
Resident violating, or respoizsible for tl~e violation of, the
Coinillunity Documents; (ii) the legal description of the Lot or
Parcel against wliich tlie iiotice is being Recorded; (iii) a brief
description of the nature of the violation; aiid (iv) a stateiiie~lt of
tlie specific steps wliich niust be talteii by the Owiier or occupant to
cure the violation. Recordation of a iiotice of violation sliall serve
as notice to tlie Owner and Resident, and ally subsequelit purcliasei.
of tlie Lot or Parcel, that there is sucli a violation. Failure by tlie
Associatioii to Record a notice of violation sliall not constitute a
waiver of any such violation, constitute any evidence tliat no
violation exists witli respect to a particular Lot or Parcel or
constitute a waiver of aiiy right of tlie Association to eiiforce tlie
Coniinuiiity Docunients.
Tlie Associatioii may, but sliall iiot be obligated to, talte aiiy eliforcelllent action if tlie
Board determines, in its sole discretion, tliat because of tlie strength of any possible defenses, tlie
time aiid expense of litigation or otlier enforcelllent action, the likeliliood of a result favorable to
tlie Association, or otlier facts deemed relevalit by tlie Board, enforcement actioii would iiot be
appropriate or in tlie best interests of tlie Associatioii. All rights and remedies of the Associatioii
under tlie Com~iiunity Documents or at law or in equity are c~uiiiulative, aiid the exercise of oiie
right or remedy shall iiot waive the Association's right to exercise aiiother riglit or remedy.
Eacli Owner, tlie Association aiid tlie Declarant sliall have the riglit to enforce tliis
Declaration in any iiiaiilier available at law or in equity. Tlie failure of the Association, the
Declaraiit or an Owiier to talte enforcement action with respect to a violation of the Coniin~uiity
Documents sliall not constitute or be deemed a waiver of the riglit of the Association, tlie
Declaraiit or ally Owiier to eiiforce the Coinni~~nity
Docuineiits in tlie f~uture. If aiiy lawsuit is
filed by tlie Association, tlie Declaraiit or any Owiier to enforce tlie provisions of tlie Conimunity
Docunients or in any otlier manner arising out of the Community Docunients or the operations of
tlie Association, the prevailiiig party in sucli action sliall be entitled to recover from tlie otlier
party all attorney fees incurred by tlie prevailing party in tlie action.
11.2
Duration; Termination.
Tliis Declaration, as it inay be amended pursuant to Section 11.3, sliall ruii witli the land
aiid bind White Tank Footliills and be in f~ull force aiid effect in perpetuity unless teriniiiated as
provided in this Section. This Declaration inay be teriniiiated at aiiy time if sucli teriniiiatioii is
approved by (a) the Declaraiit so loiig as tlie Declaraiit owns oiie or inore Lots or Parcels, aiid (b)
by tlie Owners liolding ninety percent (90%) or inore of tlie Eligible Votes. If tlie necessary
votes and consents are obtained, tlie Board sliall cause to be Recorded a Certificate of
Termination, duly signed by tlie President or Vice President and attested by tlie Secretary or
Assistant Secretary of tlie Association, witli their sigliatures acknowledged. Followiiig tlie
Recording of a Certificate of Termination, tliis Declaratioii sliall liave no further force and effect,
and the Associatioii sliall be dissolved pursuant to tlie terins set forth in its Articles.
11.3
Amendments.
Tliis Declaratioli inay be amended at any time by tlie affirmative vote or written consent
of Owners holding iiot less than two-tliirds (213) of tlie Eligible Votes. So loiig as tlie Declaraiit
owns one or more Lots or Parcels, ally amendment to this Declaration nlust be approved in
writing by the Declarant. No aillend~nent to Article 9 or this Sectio~l 11.3 shall be effective
unless the amendmei~t is signed by the Declarant even if the Declarant owns any Lot or Parcel at
the time of the amendment.
Notwithstanding any other provisioit of this Declaration to the contrary, this Declaration
nlay not be anlended to conflict with the conditions of approval of the Plat by the Co~ulty of
Chandler uilless the Plat is abandoned.
Any amendment approved by the Owlless pursuant to this Section shall be signed by the
President or Vice President of the Association and shall be Recorded. Unless a later effective
date is provided for in the amendment, any anlendment to this Declaration shall be effective
upon the Recording of the amendment.
Ally challeilge to an amendment to this Declaratioil for the season that the an~eildment
was not adopted by the required nuinber of Owners or was not adopted in accordailce with the
procedures set forth in tlzis Section must be lnade within one (1) year after the Recording of the
amendment.
11.4
Interpretation.
Except for judicial construction, the Association shall have the exclusive right to construe
aid interpret the provisioils of the Coinnlunity Doc~ullents. In the absence of any adjudication to
tl~e contrary by a court of coimpetent jurisdiction, the Board's construction or interpretation of the
provisioils hereof shall be final, conclusive and binding as to all Persoils and property benefited
or bouild by this Declaration. In the event of any coilflict between this Declaratioil and the
Articles, Bylaws, Associatioil Rules or the Design Guidelines, this Declaration shall control. In
the event of ally conflict between the Articles and the Bylaws, the Articles shall control. In the
event of any conflict between the Bylaws and the Association Rules, the Bylaws shall coiltrol.
Except for judicial construction, the Design Review Coinillittee shall have the exclusive right to
construe and interpret the Design Guidelines. In the absence of ally adjudication to the contrary
by a court of competent jurisdiction, the Design Review Committee's construction or
interpretation of the Design Guidelines shall be final, conclusive and binding as to all Persons
and property benefited or bound by this Declaration.
11.5
Severability.
Ally determination by any court of coinpetent jurisdiction that any provision of this
Declaration is invalid or unenforceable shall not affect the validity or enforceability of any of the
other provisio~~s
hereof.
11.6
Change of Circumstances.
Except as otl~erwise expressly provided in this Declaration, 110 change of conditions or
circunlstances shall operate to extinguisl~, terillillate or modify ally of the provisions of this
Declaration.
11.7
Laws, Ordinances and Regulations.
T11e covenai~ts, conditions and restrictions set forth in this Declaration and the provisioils
req~liring Owilers and other persons to obtain the approval of the Board or the Design Review
Coinmittee with respect to certain actions are independent of the obligatiol~ of the Owners and
other persons to comply with all applicable laws, ordinailces and regulations, and compliance
with this Declaration sl~all not relieve an Owiler or ally other persoil froin the obligation to also
coinply with all applicable laws, ordinailces and regulations.
Any violation of ally state,
municipal, or local law, ordiilance or regulation pertaining to the owilersl~ip, occupation or use of
any property within White Tank Foothills is hereby declared to be a violatioi~ of this Declaratioil
and subject to any or all of the enforcement procedures set forth hereiiz.
11.8
References to this Declaration in Deeds.
Deeds to and instrui~leilts affecting any Lot or Parcel or any other part of Wl~ite Tank
Footl~ills inay contain the covenants, conditioils and restrictions herein set forth by refereilce to
this Declaration; but regardless of whether any such reference is made in any Deed or
instrument, each and all of the provisions of this Declaration sllall be binding upon the grantee-
O\vner or other persoil claimiilg through any instrunlent and his heirs, executors, administrators,
successors and assignees.
11.9
Gender and Number.
Wherever the coiltext of this Declaratioil so requires, words used in the ~nasculine gender
shall include the fenlinine and neuter genders; words used in the neuter gender shall include the
illasculine and fen~inine genders; words in the singular shall iilcl~tde the plural; and words in the
plural shall iilclude the singular.
11.10 Ca~tions and Titles.
All captions, titles or headillgs of the Articles and Sections in this Declaration are for the
purpose of refereilce and conveilience only and are not to be deemed to limit, illodify or
otl~erwise affect ally of the provisions hereof or to be used in deteril~ining the intent of coiltext
thereof. Unless otherwise specified, all refereilces in this Declaration to Articles or Sections are
to Articles and Section of this Declaration.
11.11 Notices.
All notices, demands, stateineilts or other communications required to be given or
served under this Declaratioil shall be in writing and shall be deemed to have been duly given
and served if delivered personally, sent by Federal Express or other overnight delivery service or
sent by United States mail, postage prepaid, as follows: (a) if to an Owiler, at the address which
the Owner files wit11 the Secretary of the Associatioil for tlle purpose of notice or, if no suclz
address is designated, at the address of the Lot or Parcel of such Owiler or; (b) if to the
Association or the Design Review Committee, at the principal place of business of the
Association as sl~own on the records of the Arizona Corporation Coinnlission or at sucll other
address as shall be designated by notice in writing to the Owners pursuant to this Section. Notice
given by personal delivery or overnight delivery service shall be deemed to have been received
by the Person to whom the notice was addressed when the notice is actually received. A notice
given by United States mail shall be deemed to have been received by the Person to whom the
notice was addressed on the earlier of the date the notice is actually received or three days after
the notice is mailed. If a Lot or Parcel is owned by more than one Person, notice to one of the
Owners shall constitute notice to all Owners of the same Lot or Parcel.
CITRUS & NORTHERN, LLC, an Arizona
limited liability company
By:
Hinton Financial Services, Inc., a Colorado
corporation
Its:
Manager
By: /
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Brad Clough, Secretary
Its: k?&ecl@ k = ~ y
Country of Canada
)
) ss.
Province of Alberta
)
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Acknowledged before me this /d
day of
Clough, the Secretary of Hinton Financial Services, In
Citrus & Northei-n, LLC, an Arizona limited liabilit
My Commission Expires:
MELVIN TUSSMAN, LAWYER
NOTARY PUBLIC IN AND FOR THE
PROVINCE OF ALBERTA. MY
APPOINTMENT WES NOT EXPIRE AS
LONG AS I AM AN ACTIVE MEMBER
I:)F 7HE LAW SOCIETY OF ALBERTA.
STATE OF ARIZONA
1
) ss.
Couiity of Maricopa
1
foregoing i~istruiiieiit was acltnowledged before me
2006, by , S ~ ~ M C L ~ ; / C . &/F&UT
, tlie
ion, a Michigan corporation, on bellgf of tlie corpo
My Coln~nissio~l
Expires: 7
I
OFFlClAL SEM
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I
SUZAH BOSWELL
h m l y hWic - S m
of Arizona $
I
MARICOPA COUNTY
%& Ckbrnn$. Expires May 21.2009 $
EXHIBIT A
LEGAL DESCRIPTION
Section 34, Townsliip 3 North, Range 2 West of the Gila and Salt River Meridian, Maricopa
County, Arizona, also ltnown as a resubdivision of Unit 37 of Roiiiola of Arizona Grapefruit
Unit as recorded ill Boolt 18 of Maps, Page 13, Maricopa County Records:
EXCEPT the follo~ving described parcel of land:
Tliat part of the Northeast Quarter of Section 34, Township 3 Nortl~, Range 2 West of the Gila
and Salt River Meridian, Maricopa Cou~lty, Arizona, also ltnown as a resubdivision of Unit 37 of
Ro~nola of Arizona Grapefruit as recorded in Book 18 of Maps, Page 13, Maricopa County
Records, more particularly described as follows:
Commencing at the Maricopa Highway Department Brass Cap in a halidhole marlting tlie
Nortlieast Corner of said Section 34, fro111 whicli tlie Maricopa Highway Department Brass Cap
in a l~andliole lnarlting the East Quarter Corner of said Section 34 bears SOLI~~I
00°00'59" East, a
distance of 2,639.7 1 feet;
Thence Soutli 00°00'59" East, along tlie East line of the Nortlieast Quarter of said Section 34, a
distance of 1,920.16 feet;
Tlie~ice Soutli 89O59'01" West, a distance of 65.00 feet to a point 011 a line whicli is parallel with
and 65.00 feet Westerly, as measured at right angles, from tlie East line of the Nortlieast Quarter
of said Section 34, being tlie True Point of Begi~iniiig;
Tlie~ice South 00°00'59" East, alo~lg said parallel line, a distance of 483.14 feet to the beginning
of a tangent curve of 30.00 foot radius, concave Nortliwesterly;
Thence Southwesterly, along said curve, tl~rougli a central angle of 90°00'01 ", a distance of
47.13 feet;
Tliellce Soutli 89'59'02" West, a distance of 559.00 feet;
Thelice Nortli 00"00158" West, a distance of 512.26 feet;
Tllelice Nortli 89O53'5 1" East, a distance of 589.00 feet to tlie True Point of Beginning; and
EXCEPT tlierefiom the follo\viiig described parcel of land:
Tliat part of the Nortlieast Quarter of Sectioii 34, Townsliip 3 Nortli, Range 2 West of the Gila
and Salt River Meridian, Maricopa County, Arizona, also known as a res~~bdivision
of Unit 37 of
Roniola of Arizona Grapefruit as recorded in Book 18 of Maps, Page 13, Maricopa County
Records, tiiore particularly described as follows:
Coniiiieiiciiig at tlie Maricopa Co~uity Highway Department Brass Cap in a liaiidliole illasking
tlie Nortlieast Corner of said Section 34, from wliicli tlie Maricopa County Highway Department
Brass Cap in a liandl~ole inarltiiig tlie East Quarter Corner of said Section 34 bears Soutli
00'00'59" East, a distance of 2,639.71 feet;
Tlieiice Soutli 00°00'59" East, along tlie East line of tlie Nortlieast Quarter of said Section 34, a
distaiice of 1,020.16 feet;
Thence Soutli 89'59'01" West, departing said East liiie, a distance of 65.00 feet to a poiiit on a
line which is parallel witli aiid 65.00 feet Westerly, as measured at right angles, from tlie East
liiie of the Nortlieast Quarter of said Section 34, being tlie True Point of Beginning;
Tlience South 89'53'51" West, a distaiice of 578.45 feet;
Tlieiice North 00°06'09" West, a distance of 340.00 feet;
Tlience Soutli 89O53'51" West, a distaiice of416.64 feet;
Tlieiice Nortli 00'06'09" West, a distaiice of 610.03 feet to a poiiit 011 a liiie wliich is parallel witli
aiid 70.00 feet Soutlierly, as ineasured at right angles, from tlie Nortli line of the Nortlieast
Quarter of said Section 34;
Tlience Nortli 89'53'45" East, along said parallel line, a distaiice of 966.47 feet to the beginning
of a tangent curve of 30.00 foot radius, concave Southwesterly;
Tlieiice Southeasterly, along said curve, tlirougli a ceiitral angle of 90'05'1 6", a distaiice of 47.17
feet to a point on a liiie which is parallel with and 65.00 feet Westerly, as measured at riglit
angles, from tlie East liiie of the Nortlieast Quarter of said Sectioii 34;
Tlience South 00°00'59" East, along said parallel line, a distance of 920.01 feet to tlie True Poilit
of Beginning.
Note: The followiiig described subdivided property is included witliin tlie above described real
property that is subject to this Declaration:
Lots 1 tliro~lgli 80, iiicl~sive, aiid Tracts A tlirougli F, inclusive, Wliite Tank Footliills Parcel 5,
according to the plat recorded in Boolc 798, Page 47, in tlie records of tlie County Recorder of
Maricopa County, Arizona.
Lots 1 tlirough 85, inclusive, and Tracts A tlirougli IS, inclusive, White Tank Footliills Parcel 6,
according to tlie plat recorded in Boolc 801, Page 43, in tlie records of tlie County Recorder of
Maricopa County, Arizona.
5 6
C \DOCUME-l\tled\LOCALS- I\l'e~~ip\mwtempI
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CONSULATE GENERAL OF THE
UNITED STATES OF AMERICA
S u i t e 1000
615 Macleod T r a i l S e e .
Calgary, A l b e r t a
T2G 4T8
May 1 4 , 1992
Mr. Melvin Tussman
Shtabsky & Tussman
400 Oxford Tower
10235 - 101 S t r e e t
Edmonton, A l b e r t a
T5J 3G1
Dear Mr. Tussman:
T h i s i s t o confirm your r e g i s t r a t i o n with t h i s o f f i c e a s a
Notary P u b l i c .
Your c a r d w i l l be kept permanently i n our
r e c o r d s .
I f your s i g n a t u r e changes s i g n i f i c a n t l y , o r i f you
o b t a i n a new s e a l , p l e a s e p r o v i d e u s w i t h a new c a r d with t h e
same i n f o r m a t i o n .
R e g i s t r a t i o n i s f r e e ;
however, t h e r e is a charge of $10.00
U . S .
f u n d s f o r each a u t h e n t i c a t i o n .
This f e e should be p a i d by
money o r d e r made payable t o t h e C o n s u l a t e General of t h e United
S t a t e s of America.
I hope t h e above i n f o r m a t i o n proves h e l p f u l .
S i n c e r e l y ,
~ e n n i s W, Merz
Consul
TUS SPlAN , MELVIN
SHTABSKY & TUSSMAN
400, 10235 - 101 Street
Edmonton, Alberta.
T5J 3G1
SIGNATURE :
(seal)
This is the sample signature card of Melvin Tussman, on file with the Consulate.
The card is kept permanently in our records. If the signature changes significantly,
please provide us with a new card with the same information.
Notarial Section.
@
Oh
4- LawSocietyofAlberta
4LB +
ID: 2852
Melvin Tussman, Q.C.
Active Member
Expiry: March 15
Member Signature
Executive D~rector
Attachment C
8/13/2021 Second Amendment to the
CC&Rs
Maricopa County,
· Last year, the Developer and his Attorney fraudulently amended Section 2.4 of our White Tank Foothills CC&R
(Covenants, Conditions and Restrictions), which states that the Developer shall not change the lot count by more
than 10% without notifying the homeowners. The Developer deleted this 10% restriction and DID NOT
NOTIFY US! This is fraudulent and part of their malicious strategy to request more than the 10% allowed by our
original governing documents. Without this illegally gotten unenforceable amendment, the Developer could only
build 10%, or 39 additional homes for a total of 429 homes in WTF Phase 3.
· The proposed Rezone will increase lots by 59% over the approved density from 390 homes to 657 homes. This
is inconsistent with the currently approved zoning for WTF Phase 3.
· Approving this Rezone will disrupt the transition of density. No lots in WTF Phase 3 should be narrower than
60-feet wide.
· White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and other
amenities. We are not a high-density community like Marley Park or Verrado with small lots and community club-
style amenities.
· This density is much too high for our neighborhood and was not part of the 2003 approved neighborhood plan
which was in place when we built our homes. We offered a compromise to the developer of one half of their
proposed 380 lot additions but they refused that compromise offer so we took it of the table.
· Remember, 77.4% of all homeowners within 300 feet of the Phase 3 development signed our petition to reduce
the number of lots built in Phase 3 closer to the 429 allowed by the CC&R’s. That is not an insignificant
participation number.
The Board of Supervisors should not encourage the unilateral change to CC&R’s that are a contract with
homeowners in Arizona. Without notice, how can we the homeowners know when the one-year challenge
time period starts? This is the second time they have done this. We did not know about the first time and the
one-year challenge period ended without challenge. The recent Arizona Supreme Court decision in Kalway
v Calabria Ranch HOA we believe has application here and the developer's unilateral amendment is
unenforceable.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners. We will be
attending the public hearing and we appreciate your consideration to deny this Rezone.
Sincerely,
Brian Dockall
8404 N. 180th DRIVE
Waddell, AZ 85355
Maricopa County,
The purpose of this email is to voice our family’s opposition to DMP2021001 & Z2021050 – White Tank
Foothills Ph. 3. This email contains screenshots of the existing White Tank Foothills Homeowners
Association webpage found at www.whitetankfoothillsca.org
White Tank Foothills - White Tanks Foothills Community Association
White Tank Foothills Commuity Association is a deed-restricted community located in Waddell, Arizona
www.whitetankfoothillsca.org
taken on 6/7/2022. If the screenshots cannot be seen in this email, please let me know and I will
resend them in a different format.
· The Declaration of Covenants, Conditions and Restrictions for White Tank Foothills in effect
when most original property owners purchased their homes was dated 5/24/2006 and is
available on the White Tank Foothills Homeowners Association website - see Screenshot #1
below:
Screenshot #1
Note that there are no “amendments” of the CC&Rs posted under the
“Governing Documents” section of this website.
·
· In 2021, the Developer of the White Tank Foothills Phase 3 and his
Attorney fraudulently amended Section 2.4 of our White Tank Foothills CC&R (Covenants,
Conditions and Restrictions), which states that the Developer shall not change the lot count by
more than 10% without notifying the homeowners. The Developer deleted this 10%
restriction and DID NOT NOTIFY US! This is fraudulent and part of their malicious strategy to
request more than the 10% allowed by our original governing documents. Without this illegally
gotten unenforceable amendment, the Developer could only build 10%, or 39 additional
homes for a total of 429 homes in WTF Phase 3.
o
The DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR WHITE
TANK FOOTHILLS dated 5/24/2006 state the following (also see below in Screenshot #2
of White Tank Foothills website with the page and sections 2.4 & 2.5 shown):
Section 2.4 Development Plan
“Notwithstanding any other provision of this Declaration to the contrary, the
Declarant, with the approval of the County but without obtaining the consent of
any other Owner or Person, shall have the right to make changes or modifications
to the Development Plan with respect to any property owned by the Declarant in
any way which the Declarant desires including, but not limited to, changing the
density of all or any portion of the property owned by such Declarant or clanging
the nature or extent of the uses to which the property may be devoted; provided
however, that the change or modification shall not increase or decrease the number
of lots permitted under the existing Development Plan by more than ten percent
(10%).” {Note that highlighting added for emphasis of original wording}
Section 2.5 Further Subdivision, Property Restrictions, Rezoning, and Timeshares
Without the prior written approval of the Declarant and the Association, no Owner
other than the Declarant or a Builder shall do any of the following: (a) further
subdivide a Lot or Parcel or separate a Lot or Parcel into smaller lots or parcels; (b)
convey or transfer less than all of a Lot or Parcel; (c) replat a Lot or Parcel or
combine a Lot or Parcel with other Lots or Parcels; (d) record covenants, conditions,
restrictions or easements against any Lot or Parcel; (e) file any application for
zoning, rezoning, variances or use permits pertaining to any Lot or Parcel with the
County or any municipality having jurisdiction; or (f) subject or use a Lot or Parcel
for any timesharing, cooperative, weekly, monthly or any other type of revolving or
periodic occupancy by multiple owners, cooperators, licensees or timesharing
participants.
Screenshot # 2
· The proposed Rezone will increase lots by 59% over the approved density from 390 homes
to 657 homes. This is inconsistent with the currently approved zoning for WTF Phase 3 and
inconsistent with the conditions set forth in the 5/24/2006 CC&Rs section 2.4 shown in
Screenshot #2 above.
· Approving this Rezone will disrupt the transition of density. No lots in WTF Phase 3 should be
narrower than 60-feet wide. This Rezone will also significantly add to the traffic
congestion utilizing the interior roads within the WTF community and the intersection of N
Citrus Rd and W Northern Ave. If ever there was a hazardous situation requiring immediate
evacuation of WTF homes, significant time delays trying to exit the WTF community and this
potential delay in evacuating could cause casualties to life.
· White Tank Foothills is unique with mid-size lots offering room for private yard space, pools,
and other amenities. We are NOT a high-density community like Marley Park or Verrado with
small lots and community club-style amenities.
· This density is much too high for our neighborhood and was not part of the 2003 approved
neighborhood plan which was in place when we built our homes. We offered a compromise to
the developer of one half of their proposed 380 lot additions but they refused that
compromise offer so we took it of the table.
· Remember, 77.4% of all homeowners within 300 feet of the Phase 3 development signed our
petition to reduce the number of lots built in Phase 3 closer to the 429 allowed by the CC&R’s.
That is not an insignificant participation number.
The Board of Supervisors should not encourage the unilateral change to CC&R’s that are a contract with
homeowners in Arizona. Without notice, how can we the homeowners know when the one-year
challenge time period starts? This is the second time they have done this. We did not know about the
first time and the one-year challenge period ended without challenge. The recent Arizona Supreme
Court decision in Kalway v Calabria Ranch HOA we believe has application here and the developer's
unilateral amendment is unenforceable.
Please share our opposition with your team, including County Staff, Planning and Zoning
Commissioners. We will be attending the public hearing and we appreciate your consideration to deny
this Rezone.
Sincerely,
Holly Browner David Browner Nathaniel
Browner Benjamin Browner Joshua Browner
18136 W Orchid Ln 18136 W Orchid Ln 18136 W Orchid Ln 18136
W Orchid Ln 18136 W Orchid Ln
Waddell, AZ 85355 Waddell, AZ 85355 Waddell, AZ
85355 Waddell, AZ 85355 Waddell, AZ 85355
480.650.2765 602.790.9551 480.433.3014 480.868
.0377 480.625.7702
Thank you for the opportunity to provide input on the WTF Phase 3 proposal. I stand in strong opposition to the
project as it currently designed. My opposition falls under one simple premise and that and that is "Fairness"
The BOS has asked the Developer to work with the community to ensure compatibility with the existing Phase 1 and
Phase 2 of the this "Master Planned" community. We have danced around what compatibility looks like. At one point
prior to the last BOS meeting, we were making progress. We had worked on providing a buffer zone between Phase
1 and Phase 3, with houses that looked similar, single-story homes of a similar lot size without RV garages. These
would run along the wash area as well as Citrus Rd and the length of the new road being routed to Citrus. Many of
us were pleased with the progress and requested a few minor adjustments so that there was a smooth transition to
the higher density being proposed in the SW corner of the property. After the BOS's asked the Developer to seek
more common ground, an approach of divide and conquer was instituted. The Developer offered crumbs to a few
(additional single-story homes along the wash, wider lots along the wash and a straightened road to Citrus) in
exchange for a huge grab. They added RV garages to all homes in the entire project. That is hardly "compatible"
with Phase 1 of WTF. And certainly not fair.
In addition, the residents of Phase 1 and Phase 2, discovered that the Developers Representatives played fast and
loose with the HOA. By suspending the rules on development expansion signed off by the residents, without notice
either before or after their deceitful actions we were victims of a ruthless machine. Ironically, to this day the HOA
(controlled by the Developers) still have not posted the new CC&Rs. They want to hide the truth. Thir actions were
in violation to an Arizona Supreme Court ruling. We cannot reward illegal and deceitful actions. I cannot think these
actions are fair.
Recently the BOS has allowed the city of Glendale to annex a large number of lots along the Loop 303 corridor. This
is great for the City of Glendale and I assume Maricopa County (taxes and Developer fees). The victims of this
however are the residents of Waddell. We have been told that we need to accommodate the influx of workers for
these new businesses. We will absorb traffic, increased crime and a large number of additional students into our
schools. We have been told that the MCDOT will work the traffic issue, there will be no additional police presence
and that the Dysart School District will find a way to absorb the children (maybe not in the schools closest to their
homes but somewhere). Although we have a piece of land designated for a school, it will take 7-10 years for
development. Everyone else realizes the benefits but Waddell must absorb the issues. Hardly seems fair.
I have always been told, not to create problems without a proposed solution. So, what should the BOS do with this
situation?
1. Engage the Attorney's at Maricopa County's disposal and ask for a ruling as to the validity of our claim that the
Developers actions are illegal according to the Arizona Supreme Court. To ask the residents to continue to fight a
multi-million dollar corporation on there own would not be fair. Our attorney has provided our claim, ask the same of
the Developer and ask for a legal ruling from your staff. Seems pretty easy and fair.
2. If you find that the Developer acted in good faith and legally, according to the Arizona Supreme Court, force the
Developer back to the drawing board. Force them to come up with a plan that allows the residents to feel
comfortable with the flow and compatibility of the new project. The majority of the residents, not just those cut from
the herd at others expense. That would be fair.
3. Request MCDOT provide an overarching traffic plan for the area, request the Sheriff's Dept tell us how they will
manage the increased needs for Waddell and require Dysart School District to show us where the children will attend
school and even perhaps a utilization plan for the land being provided. That would be fair to those being asked to
absorb new homes to support Glendale's new business ventures.
Thank you for allowing me the opportunity to share my feelings. In the end, all we want is what is fair.
Michael Brown
18013 W El Caminito Dr
Waddell AZ
Maricopa County,
Last year, the Developer and his attorney fraudulently amended Section 2.4 of our White Tanks
Foothills CC&Rs (Covenants, Conditions, and Restrictions), which states that the Developer shall not
change the lot count by more than 10% without notifying the homeowners. The Developer deleted this
10% restriction and DID NOT NOTIFY US! This is fraudulent and part of their malicious strategy to request
more than the 10% allowed by our original governing documents. Without this illegally gotten,
unenforceable amendment, the Developer could only build 10%, or 39 additional homes for a total of 429
homes in White Tanks Foothills Phase 3.
The proposed Rezone will increase lots by 59% over the approved density from 390 homes to 657
homes. This is inconsistent with the currently approved zoning for White Tanks Foothills Phase 3.
Approving this Redone will disrupt the transition of density. No lots in White Tanks Foothills Phase 3
should be narrower than 60-feet wide.
White Tanks Foothills is unique with mid-sized lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small lots and
community club-style amenities.
This density is much too high for our neighborhood and was not part of the 2003 approved
neighborhood plan which was in place when we built our homes. We offered a compromise to the
Developer of one half of their proposed 380 lot additions, but they refused that compromise offer so we
took the offer off the table.
Remember, 77.4% of all homeowners within 300 feet of the Phase 3 development signed our petition
to reduce the number of lots built in Phase 3 closer to the 429 allowed by the CC&Rs. That is not an
insignificant participation number.
The Board of Supervisors should not encourage the unilateral changes to CC&Rs, which are contracts
with homeowners in Arizona. Without notice, how can homeowners know when the one-year challenge
time period begins? This is the second time the Developer has done this. The homeowners were not made
aware of the first change so the one-year challenge period ended without a challenge. The recent Arizona
Supreme Court decision in Kalway v Valencia Ranch HOA, we believe, has application here and the
Developer's unilateral amendment is unenforceable.
Please share our opposition with your team, including County Staff and Planning and Zoning
Commissioners. We appreciate your consideration to deny this Redone request.
Sincerely,
Elizabeth Catricala
17942 W. Diana Ave
Waddell, AZ 85355
Maricopa County,
Last year, the Developer and his attorney fraudulently amended Section 2.4 of our White Tanks
Foothills CC&Rs (Covenants, Conditions, and Restrictions), which states that the Developer shall not
change the lot count by more than 10% without notifying the homeowners. The Developer deleted this
10% restriction and DID NOT NOTIFY US! This is fraudulent and part of their malicious strategy to request
more than the 10% allowed by our original governing documents. Without this illegally gotten,
unenforceable amendment, the Developer could only build 10%, or 39 additional homes for a total of 429
homes in White Tanks Foothills Phase 3.
The proposed Rezone will increase lots by 59% over the approved density from 390 homes to 657
homes. This is inconsistent with the currently approved zoning for White Tanks Foothills Phase 3.
Approving this Redone will disrupt the transition of density. No lots in White Tanks Foothills Phase 3
should be narrower than 60-feet wide.
White Tanks Foothills is unique with mid-sized lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small lots and
community club-style amenities.
This density is much too high for our neighborhood and was not part of the 2003 approved
neighborhood plan which was in place when we built our homes. We offered a compromise to the
Developer of one half of their proposed 380 lot additions, but they refused that compromise offer so we
took the offer off the table.
Remember, 77.4% of all homeowners within 300 feet of the Phase 3 development signed our petition
to reduce the number of lots built in Phase 3 closer to the 429 allowed by the CC&Rs. That is not an
insignificant participation number.
The Board of Supervisors should not encourage the unilateral changes to CC&Rs, which are contracts
with homeowners in Arizona. Without notice, how can homeowners know when the one-year challenge
time period begins? This is the second time the Developer has done this. The homeowners were not made
aware of the first change so the one-year challenge period ended without a challenge. The recent Arizona
Supreme Court decision in Kalway v Valencia Ranch HOA, we believe, has application here and the
Developer's unilateral amendment is unenforceable.
Please share our opposition with your team, including County Staff and Planning and Zoning
Commissioners. We appreciate your consideration to deny this Redone request.
Sincerely,
Lacey Raeall Young Markowski
18223 W Orchid Lane
Waddell, Arizona 85355
Big money at work again??
Now a rezoning ordinance is being considered for a 740 home development on property on North Citrus
Road. As Home owners on Citrus Rd. we absolutely will fight any more new developments on Citrus Rd
1. No water pressure now.
2. Traffic is a nightmare as it is. Looks like a race track on N. Citrus Rd most of the time people do not
follow posted speed limits.
3. Now they want to open an entrance to thee proposed development right across the road from our
home. I DON'T THINK SO.
4. A water easement on Perryville Rd or Northern preventing an access on either Streets/Road. You
have to be joking.
5. Property values will take a big hit on North Citrus road. More traffic the more a home value loses.
6. We don't need the added pollution and junk that this will add to our yards.
We already told the person that came through doing a survey on the subject "WE DON'T WANT A NEW
DEVELOPMENT RIGHT ACCROSS THE STREET FROM US/ NOR DO WE WANT THE ACCESS TO THE
PROPOSED DEVELOPENT RIGT ACCROSS THE STREET FROM US"
Sincerely,
Joseph Wilson/John Edwards
8125 N. Citrus Rd.
Waddell, AZ 85355
623.872.1829
Hello Martin,
I hope you are the right contact to discuss the development of White Tank Foothills Phase 3 in
Waddell.
I see that there is a zoning hearing on the property NW of Citrus and Northern to rezone to R1-
6RUPD, R1-7, and R1-10 RUPD. I understand there have also been recent changes that include
an entrance to the development from Citrus.
My concern, and that of my neighbors, is the added volume of traffic this will bring to Citrus.
Our homes, which are accessed from Citrus Rd, are directly affected by these changes and I
wanted to know what our recourse was for making recommendations.
We are not against the development of the property, but rezoning to the new parcel size adds
443 homes to this community whose occupants will be passing by our homes at 40+ MPH daily.
With this increased density, it is estimated that in excess of 1000 additional vehicles will be
traveling in front of our homes.
In speaking with my neighbors, we would like to recommend against this density change.
Please let me know if there are additional actions, such as a petition, that need to be drafted up
in order to ensure our voices are heard.
Thank you for your consideration!
Kyle Burbank
623-980-4038
Good morning,
I am currently residing at lot #5 and definitely do not want an exit/entrance off N. Citrus Rd causing
more traffic and congestion! Citrus Rd is already a race track with vehicles traveling over 100
mph. Hopefully an exit/entrance can be developed off Northern Ave and/or Perryville Rd.
Thank you,
Tom Chin
Lot #5
July 17, 2021
Martin Martell, Planner
Maricopa County Planning & Development Department
301 W. Jefferson Street, Suite 170
Phoenix, AZ 85003
Dear Mr. Martell:
This letter is a follow up to the informational meeting that was held at
Mountain View High School on June 23, 2021. At that time, Brennan Ray, an
attorney from the Law Offices of Bruch & Cracchiolo, introduced preliminary
proposed changes to the zoning, development, and construction of White Tank
Foothills Phase III.
Homeowners in attendance were informed that the developer requested to
change the zoning land use to R1-6RUPD, R1-7 RUPD and R1-10 RUPD
residential lots. This proposal would increase the White Tank Foothills Phase
III subdivision from 335 lots to 773 single family detached residential lots with
a higher overall density of homes per acre from that which was originally
approved. The presentation also clearly pointed out the only access road to
and from the Phase III development would be a semi-circular road (White
Tank Mtn. Blvd.) connecting with 181st Ave on the east side and connecting
with 183rd Ave on the west side in the vicinity of Seldon Park.
The meeting was conducted with a combination of 'in person' attendance and
virtual attendance from existing residents of Phase I and Phase II of the White
Tank Foothills communities. Questions and comments were solicited relating
to the design changes that the developer is proposing for Phase III of the
White Tank Foothills subdivision. The stated purpose of the meeting was to
allow existing homeowners in Phases I and II of the White Tank Community
to voice concerns regarding these initial proposed changes. It should be
pointed out, that only a small percentage of existing property owners were
aware of the meeting. Notice of the meeting was limited to property owners
who lived within 300 feet of the outside boundaries of the Phase III
development. All property owners in the White Tank Foothills Development
will be affected by these changes and should have been notified.
At this time those property owners aware of the proposed zoning changes are
reaching out to formally document our concerns. We feel it is imperative that
we put you on notice of some serious safety and property value issues that
will result if the proposed zoning and construction plans for Phase III of the
White Tank Foothills community are implemented. We outline these issues as
follows:
Premise:
The planned limited access to and egress from the new White Tank Foothills
Phase III development is not adequate to provide safe and reasonable traffic
flow. The proposed plan calls for increasing the home density from 330 homes
(from a previous proposal) to 773 homes. That would potentially add 1,500+
vehicles using existing roads. The current proposed plan shows only one road,
White Tank Mtn Blvd, providing access into and out of the Phase III
community. This road is proposed to connect solely to Seldon Lane (via 181st)
and to 183rd. Seldon Lane, 181st and 183rd are already heavily traveled. This
plan will not only cause congestion for Phase III; it will also negatively affect
access and egress from the other homes in Phases I and II. Access to and
use of Seldon Park (the only park of significant size for all communities) will
also be affected.
Basis for Concerns:
Because there is no approach on to or off of the 303 from Olive, all traffic from
the White Tank communities and a significant number from the Cortessa
community use 183rd/Seldon to access Citrus and then Northern. Northern is
the closest road that directly provides an on and off ramp to the 303.
Commuters taking I-10 East, or Northern Parkway East, all utilize this traffic
route. All traffic headed North to access the Prasada and Bell Road shopping
areas also must utilize Seldon to exit our community. It is unreasonable to
expect this one heavily used access road to sufficiently carry the proposed
increase in traffic.
Adding to this congestion are School Bus pick up and drop off locations. Each
morning and afternoon up to 5 busses stop traffic on Seldon to load and unload
children. Seldon Lane is the only School Bus pickup/drop off point for the
whole community. Parents wait in cars, in the middle turn lanes and along the
side of the road to ensure the safety of their children and to provide rides
home. Adding more traffic to this area will cause larger backups, longer
delays, and a true safety concern for children and parents.
Currently the homes in the Silver Sky section of WTFoothills Phase I (Homes
between 181st, and Citrus) have only one egress point. That point is the
exit from Las Palmaritas on to 181st. If 181st becomes the default main
access to and egress from Phase III, this intersection will be extremely
congested and a significant safety hazard. Should there be an emergency in
the community such as a gas leak, fast spreading fire, or an active shooter,
homeowners in this division will have no alternative routes of escape. All
other WTFoothills communities have 2 to 4 exits.
Another concern is the impact on foot traffic and cyclists. Bicyclists, joggers,
walkers, dog walkers and children at play all access sidewalks, walking paths,
bike paths and existing park areas. All roads must include bike lanes.
Individuals walk through the community daily and need to cross Seldon Lane
to access parks, walking paths and other recreational areas. Crossing Seldon
Lane poses a particular problem. Because of the sharp turn it is impossible to
see a car coming around the corner as you step off the curb. Cars travel in
excess of the speed limit often requiring a sprint across the street to avoid
being hit. These crossings are an even greater hazard for people with
disabilities, physical limitations, and for children. Painted crosswalks at Las
Palmaritas, and Townley Ave have been requested of the HOA several times
with no response. With additional traffic and poor access to main routes out
of this community, cars will be driving even faster. Pedestrian crosswalks must
be included across Seldon Lane.
Desired Solution:
One desirable solution would be to reduce the number of homes planned for
Phase III to the previously approved plan. A second and perhaps more
reasonable solution would be to add one or two additional access points that
do not solely rely on Seldon Lane no matter the number of homes proposed.
It is imperative that this new development be designed with alternative roads
in and out of the community. Additional roads providing direct access to
Citrus, to Northern and even to Perryville are completely feasible. A water
shed area designed for the North side of Northern was stated as the reason
for not making an access road directly onto Northern. A large culvert over
that area is all that is needed to take traffic flow directly on to Northern and
to the 303. We understand there are plans for a future widening of Northern
allowing it to accommodate increased traffic more efficiently. In fact, this
construction has already commenced to the East of Citrus Road. Another
desirable solution to traffic congestion would be to take White Tank Mountain
Blvd directly out to Citrus rather than looping it back into 181st. Seldon exits
on to Citrus, why can’t White Tank Mountain Blvd also Exit on to Citrus? This
would alleviate the need to build a bridge or road over the already existing
large water catchment area separating this community.
With the potential of an additional 1,500+ vehicles utilizing the White Tank
Foothills communities, traffic control mechanisms must be employed. Control
lights at main intersections and monitored reduced speed areas should all be
considered. Pedestrian crosswalks must be included across Seldon Lane.
A Planning and Zoning vehicle was recently observed driving through our
community. We are hopeful that you are taking our concerns seriously and
are taking the time to visualize for yourselves how we may be impacted. It
must be noted however this is not the best time to be making those
judgments. One, school is not in session at this time of the year, and you will
not observe bussing safety issues. Two, it is in the middle of Summer and
our hottest weather periods. Many of our residents leave during these months
for summer homes, or extended vacations. Therefore, traffic assessments at
this time will not give you a true picture of our traffic during the remaining
nine months of the year.
Thank you for your professional consideration of the issues that we and many
others here in White Tank Foothills are raising. We have a very desirable
community with people frequently seeking to purchase homes in this area.
The next phase must be done correctly or the desirability and value of all our
properties, even the new ones will be detrimentally affected. Do Not cut
corners! Do it right and all affected parties will benefit.
We welcome further open discussion and suggestions for resolving the
concerns we have raised. We look forward to hearing from you soon.
Respectfully,
Frank Scaglione
8338 N 180th Drive
Waddell, AZ 85355
____________________________________
fdssdf68@yahoo.com
Nancy R Rosenberg
18020 W El Caminito Drive
Waddell, AZ 85355
_____________________________________
nancyrrosen@yahoo.com
Steven G Rosenberg,
18020 W El Caminito Drive
Waddell, AZ 85355
_____________________________________
sgr@pacbell.net
The following parties have also received this letter.
Brennan Ray, Attorney at Law
Agent for Citrus & Northern
Law Offices of Burch & Cracchiolo.PA
1850 N Central Ave. Suite 1700
Phoenix, AZ 85004
bray@bcattorneys.com
Tom Bilsten
Bilsten Consulting
77 W Chicago St Suite 1
Chandler, 85286, AZ
tom.bilsten@gmail.com
Citrus & Northern LLC
2901 N. Central Ave # 200
Phoenix, AZ 85012
Lilli Foster, Community Manager
AAM, LLC
1600 W. Broadway Rd. Ste 200
Tempe, AZ 85282-1112
lfoster@associatedasset.com
White Tank Foothills Board of Directors
c/o Lilli Foster, Community Manager
July 17, 2021
Martin Martell, Planner
Maricopa County Planning & Development Department
301 W. Jefferson Street, Suite 170
Phoenix, AZ 85003
Dear Mr. Martell:
This letter is a follow up to the informational meeting that was held at
Mountain View High School on June 23, 2021. At that time, Brennan Ray, an
attorney from the Law Offices of Bruch & Cracchiolo, introduced preliminary
proposed changes to the zoning, development, and construction of White Tank
Foothills Phase III.
Homeowners in attendance were informed that the developer requested to
change the zoning land use to R1-6RUPD, R1-7 RUPD and R1-10 RUPD
residential lots. This proposal would increase the White Tank Foothills Phase
III subdivision from 335 lots to 773 single family detached residential lots with
a higher overall density of homes per acre from that which was originally
approved. The presentation also clearly pointed out the only access road to
and from the Phase III development would be a semi-circular road (White
Tank Mtn. Blvd.) connecting with 181st Ave on the east side and connecting
with 183rd Ave on the west side in the vicinity of Seldon Park.
The meeting was conducted with a combination of 'in person' attendance and
virtual attendance from existing residents of Phase I and Phase II of the White
Tank Foothills communities. Questions and comments were solicited relating
to the design changes that the developer is proposing for Phase III of the
White Tank Foothills subdivision. The stated purpose of the meeting was to
allow existing homeowners in Phases I and II of the White Tank Community
to voice concerns regarding these initial proposed changes. It should be
pointed out, that only a small percentage of existing property owners were
aware of the meeting. Notice of the meeting was limited to property owners
who lived within 300 feet of the outside boundaries of the Phase III
development. All property owners in the White Tank Foothills Development
will be affected by these changes and should have been notified.
At this time those property owners aware of the proposed zoning changes are
reaching out to formally document our concerns. We feel it is imperative that
we put you on notice of some serious safety and property value issues that
will result if the proposed zoning and construction plans for Phase III of the
White Tank Foothills community are implemented. We outline these issues as
follows:
Premise:
The planned limited access to and egress from the new White Tank Foothills
Phase III development is not adequate to provide safe and reasonable traffic
flow. The proposed plan calls for increasing the home density from 330 homes
(from a previous proposal) to 773 homes. That would potentially add 1,500+
vehicles using existing roads. The current proposed plan shows only one road,
White Tank Mtn Blvd, providing access into and out of the Phase III
community. This road is proposed to connect solely to Seldon Lane (via 181st)
and to 183rd. Seldon Lane, 181st and 183rd are already heavily traveled. This
plan will not only cause congestion for Phase III; it will also negatively affect
access and egress from the other homes in Phases I and II. Access to and
use of Seldon Park (the only park of significant size for all communities) will
also be affected.
Basis for Concerns:
Because there is no approach on to or off of the 303 from Olive, all traffic from
the White Tank communities and a significant number from the Cortessa
community use 183rd/Seldon to access Citrus and then Northern. Northern is
the closest road that directly provides an on and off ramp to the 303.
Commuters taking I-10 East, or Northern Parkway East, all utilize this traffic
route. All traffic headed North to access the Prasada and Bell Road shopping
areas also must utilize Seldon to exit our community. It is unreasonable to
expect this one heavily used access road to sufficiently carry the proposed
increase in traffic.
Adding to this congestion are School Bus pick up and drop off locations. Each
morning and afternoon up to 5 busses stop traffic on Seldon to load and unload
children. Seldon Lane is the only School Bus pickup/drop off point for the
whole community. Parents wait in cars, in the middle turn lanes and along the
side of the road to ensure the safety of their children and to provide rides
home. Adding more traffic to this area will cause larger backups, longer
delays, and a true safety concern for children and parents.
Currently the homes in the Silver Sky section of WTFoothills Phase I (Homes
between 181st, and Citrus) have only one egress point. That point is the
exit from Las Palmaritas on to 181st. If 181st becomes the default main
access to and egress from Phase III, this intersection will be extremely
congested and a significant safety hazard. Should there be an emergency in
the community such as a gas leak, fast spreading fire, or an active shooter,
homeowners in this division will have no alternative routes of escape. All
other WTFoothills communities have 2 to 4 exits.
Another concern is the impact on foot traffic and cyclists. Bicyclists, joggers,
walkers, dog walkers and children at play all access sidewalks, walking paths,
bike paths and existing park areas. All roads must include bike lanes.
Individuals walk through the community daily and need to cross Seldon Lane
to access parks, walking paths and other recreational areas. Crossing Seldon
Lane poses a particular problem. Because of the sharp turn it is impossible to
see a car coming around the corner as you step off the curb. Cars travel in
excess of the speed limit often requiring a sprint across the street to avoid
being hit. These crossings are an even greater hazard for people with
disabilities, physical limitations, and for children. Painted crosswalks at Las
Palmaritas, and Townley Ave have been requested of the HOA several times
with no response. With additional traffic and poor access to main routes out
of this community, cars will be driving even faster. Pedestrian crosswalks must
be included across Seldon Lane.
Desired Solution:
One desirable solution would be to reduce the number of homes planned for
Phase III to the previously approved plan. A second and perhaps more
reasonable solution would be to add one or two additional access points that
do not solely rely on Seldon Lane no matter the number of homes proposed.
It is imperative that this new development be designed with alternative roads
in and out of the community. Additional roads providing direct access to
Citrus, to Northern and even to Perryville are completely feasible. A water
shed area designed for the North side of Northern was stated as the reason
for not making an access road directly onto Northern. A large culvert over
that area is all that is needed to take traffic flow directly on to Northern and
to the 303. We understand there are plans for a future widening of Northern
allowing it to accommodate increased traffic more efficiently. In fact, this
construction has already commenced to the East of Citrus Road. Another
desirable solution to traffic congestion would be to take White Tank Mountain
Blvd directly out to Citrus rather than looping it back into 181st. Seldon exits
on to Citrus, why can’t White Tank Mountain Blvd also Exit on to Citrus? This
would alleviate the need to build a bridge or road over the already existing
large water catchment area separating this community.
With the potential of an additional 1,500+ vehicles utilizing the White Tank
Foothills communities, traffic control mechanisms must be employed. Control
lights at main intersections and monitored reduced speed areas should all be
considered. Pedestrian crosswalks must be included across Seldon Lane.
A Planning and Zoning vehicle was recently observed driving through our
community. We are hopeful that you are taking our concerns seriously and
are taking the time to visualize for yourselves how we may be impacted. It
must be noted however this is not the best time to be making those
judgments. One, school is not in session at this time of the year, and you will
not observe bussing safety issues. Two, it is in the middle of Summer and
our hottest weather periods. Many of our residents leave during these months
for summer homes, or extended vacations. Therefore, traffic assessments at
this time will not give you a true picture of our traffic during the remaining
nine months of the year.
Thank you for your professional consideration of the issues that we and many
others here in White Tank Foothills are raising. We have a very desirable
community with people frequently seeking to purchase homes in this area.
The next phase must be done correctly or the desirability and value of all our
properties, even the new ones will be detrimentally affected. Do Not cut
corners! Do it right and all affected parties will benefit.
We welcome further open discussion and suggestions for resolving the
concerns we have raised. We look forward to hearing from you soon.
Respectfully,
Frank Scaglione
8338 N 180th Drive
Waddell, AZ 85355
____________________________________
fdssdf68@yahoo.com
Nancy R Rosenberg
18020 W El Caminito Drive
Waddell, AZ 85355
_____________________________________
nancyrrosen@yahoo.com
Steven G Rosenberg,
18020 W El Caminito Drive
Waddell, AZ 85355
_____________________________________
sgr@pacbell.net
The following parties have also received this letter.
Brennan Ray, Attorney at Law
Agent for Citrus & Northern
Law Offices of Burch & Cracchiolo.PA
1850 N Central Ave. Suite 1700
Phoenix, AZ 85004
bray@bcattorneys.com
Tom Bilsten
Bilsten Consulting
77 W Chicago St Suite 1
Chandler, 85286, AZ
tom.bilsten@gmail.com
Citrus & Northern LLC
2901 N. Central Ave # 200
Phoenix, AZ 85012
Lilli Foster, Community Manager
AAM, LLC
1600 W. Broadway Rd. Ste 200
Tempe, AZ 85282-1112
lfoster@associatedasset.com
White Tank Foothills Board of Directors
c/o Lilli Foster, Community Manager
Mr. Martell:
We are reaching out today because of our concerns regarding the zoning and entrances for the
expansion project in the White Tank Foothills. We live on Citrus Road. Currently we experience
significant traffic issues because of the number of residents who leave White Tank Foothills in an
attempt to get on the 303. Because there is no entrance on Olive (which is the closest 4 lane main road)
the residents leave Seldon and speed down Citrus to get to Northern. The number of drivers makes it
challenging for us to be able to cross the street to go for walks, in addition to the noise of them flooring
their accelerators to get up to 50-60 mph as they leave the stop sign at Seldon and Citrus. This is the
current situation.
When you add the 600 additional homes, traffic will increase exponentially, because so many people will
still be trying to get to the 10 via the 303. The exit through 181st street would only work if you created
on/off ramps at Olive and the 303. Citrus Road is a residential street, not a 4 lane throughway. By
putting an exit for the development on Citrus you will be significantly negatively changing our quality of
life and the amount of traffic will cause traffic jams. Northern Ave seems to be your only choice for an
exit to that area, but again work needs to be done to be able to handle that kind of traffic because the
road is only a two way with stop signs at the four way with Citrus. That runs into issues though because
our development, Crystal Springs Estates, has water runoff ditches there between the houses and the
road.
In conclusion, to reduce the number vehicles on Citrus Road in our front yards we would propose that
you either use the 181st street as the exit and open an on/off ramp on Olive to the 303 or that the exit
filter out through Perryville Rd or Northern Ave, but significant changes will need to occur to make
traffic flow well on those streets as well. We object to having an exit on Citrus and to having the exit on
181st without filtering traffic to Olive instead of Northern.
If you have further questions, please feel free to email us.
Thank you,
Brent and Bethany Stevenson
Crystal Springs Estates Resident on Citrus Road
Weboat2gether@gmail.com
Mr. Martell and Mr. Ray:
I am writing to you concerning the White Tank Foothills Phase II on behalf of my family, some neighbors
and myself.
I understand there will now be an entrance to that community from Citrus Road. We were told when we
bought our home the entrance would be from Perryville Road.
We would like to share our opposition against adding the entrance from Citrus Road. Our concern is that
the added amount of traffic
this will bring to Citrus Road. Our property, which is accessed directly from Citrus Road will be subject to
an increase in the amount
of traffic, noise and more congestion. It is difficult, at times now, to get our of our driveways due to the
amount of traffic.
Currently, because of the access to the 303 (Northern and Olive do not have ramps for ingress and
egress in both directions) and
existing White Tank Foothills residents, Citrus has a large volume of traffic passing by our homes at 40
plus MPH, especially morning
and late afternoons. This makes it difficult to access our properties and makes Citrus unsafe for the
children to play in the front yards,
individuals to cross the street or walk along Citrus. I believe Citrus should be a residential street and not
a throughway.
We are not against the developing of the property, but rezoning to the new parcel size adds 443 homes to
the community from the original 350. With this increased density, it is estimated that in excess of 1,000
additional vehicles be traveling in front of our homes.
Please move this entrance to Northern and/or Perryville Road. I know there is a drainage easement off
Northern, but I believe amendments can be made to build a suitable crossing as one already exists on
Citrus, 177th and 178th.
Thank you for your time and please let me know if I can provide additional information.
Respectfully,
Cathy Short
602-319-1786
Crystal Springs Estates
Bucky10813@aol.com
Subject: OPPOSITION to DMP2021001 & Z2021050 – White Tank Foothills Ph. 3
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770 homes. This
is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on
Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small
lots and community club-style amenities.
• This density is much too high for our neighborhood and was not part of the neighborhood plan
when we built our homes.
• Please understand the REZONE will ruin the character of our community by allowing high-
density small lots, smaller homes, two story homes and more traffic along with all the
related safety issues and concerns…all can be prevented by DENYING this REZONE to allow
higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Anthony Belmonte
18241 W El Caminito Dr
Waddell,AZ 85355
708-567-2473
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770
homes. This is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on Northern
to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small
lots and community club-style amenities.
• This density is much too high for our neighborhood and was not part of the neighborhood plan when
we built our homes.
• Please understand the REZONE will ruin the character of our community by allowing high-density
small lots, smaller homes, two story homes and more traffic along with all the related safety issues
and concerns…all can be prevented by DENYING this REZONE to allow higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Alfred DeLeon Sr. and Leslie Gee DeLeon
18221 west El Caminito Drive
Waddell, AZ 85355
623-234-8902
Regarding DMP2021001 & Z2021050 – White Tank Foothills Ph. 3
My family is strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770 homes. This is
inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on Northern to the
75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and other
amenities. We are not a high-density community like Marley Park or Verrado with small lots and community
club-style amenities.
• This density is much too high for our neighborhood and was not part of the neighborhood plan when we built
our homes.
• Please understand the REZONE will ruin the character of our community by allowing high-density small lots,
smaller homes, two story homes and more traffic along with all the related safety issues and concerns…all can be
prevented by DENYING this REZONE to allow higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners, and the
Board of Supervisors. We will be attending the public hearing and we appreciate your consideration to deny this
Rezoning Request.
Sincerely,
Allison Payne, homeowner
18419 W Northern Ave
Waddell, AZ 85355
623-518-7606
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770
homes. This is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on Northern
to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small lots
and community club-style amenities.
• This density is much too high for our neighborhood and was not part
of the neighborhood plan when we built our homes. We have all
attempted to maintain the beautiful, rural nature of our community. This
high density development is WRONG!
• Please understand the REZONE will ruin the character of our
community by allowing high-density small lots, smaller homes, two
story homes and more traffic along with all the related safety issues and
concerns…all can be prevented by DENYING this REZONE to allow
higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Sherry L. Ramm
17943 W. El Caminito Drive
Waddell, AZ 85355
623-243-9330
Martin Martell
Planning and Zoning
Maricopa County
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes
to 770 homes. This is inconsistent with the currently 2013 approved zoning for WTF
Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+)
lots on Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching
Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard
space, pools, and other amenities. We are not a high-density community like Marley
Park or Verrado with small lots and community club-style amenities.
• This density is much too high for our neighborhood and was not part of the
neighborhood plan when we built our homes.
• Please understand the REZONE will ruin the character of our community by
allowing high-density small lots, smaller homes, two story homes and more traffic along
with all the related safety issues and concerns…all can be prevented by DENYING this
REZONE to allow higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and
Zoning Commissioners, and the Board of Supervisors. We will be attending the public
hearing and we appreciate your consideration to deny this Rezone.
Sincerely,
Steve and Nancy Rosenberg
18020 W El Caminito Dr
Waddell, AZ 85355
(510) 459-5957
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes
to 770 homes. This is inconsistent with the currently 2013 approved zoning for
WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+)
lots on Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching
Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard
space, pools, and other amenities. We are not a high-density community like
Marley Park or Verrado with small lots and community club-style amenities.
• This density is much too high for our neighborhood and was not part of the
neighborhood plan when we built our homes.
• Please understand the REZONE will ruin the character of our community by
allowing high-density small lots, smaller homes, two story homes and more traffic
along with all the related safety issues and concerns…all can be prevented by
DENYING this REZONE to allow higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning
Commissioners, and the Board of Supervisors. We will be attending the public hearing and we
appreciate your consideration to deny this Rezone.
Sincerely,
Mary Ross
18247 W. El Caminito Dr.
Waddell, AZ 85355
360-708-1194
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
· The proposed Rezone will almost double the approved density from 390 homes to 770
homes. This is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
· Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on
Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
· White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small lots
and community club-style amenities.
· This density is much too high for our neighborhood and was not part of the neighborhood plan
when we built our homes.
· Please understand the REZONE will ruin the character of our community by allowing high-density
small lots, smaller homes, two story homes and more traffic along with all the related safety issues
and concerns…all can be prevented by DENYING this REZONE to allow higher density with 770
homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Annette Runowiecki
8236 N. 180th Drive
WADDELL, AZ 85355
623 536-4781
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770
homes. This is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on Northern
to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small
lots and community club-style amenities.
• This density is much too high for our neighborhood and was not part of the neighborhood plan when
we built our homes.
• Please understand the REZONE will ruin the character of our community by allowing high-density
small lots, smaller homes, two story homes and more traffic along with all the related safety issues
and concerns…all can be prevented by DENYING this REZONE to allow higher density with 770
homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Mitch and Jodi Boling
18253 W. El Caminito Dr.
Waddell, AZ 85355
623-293-1394- Jodi
623-293-1393- Mitch
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770 homes. This
is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on
Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small
lots and community club-style amenities.
• This density is much too high for our neighborhood and was not part of the neighborhood plan
when we built our homes.
• Please understand the REZONE will ruin the character of our community by allowing high-
density small lots, smaller homes, two story homes and more traffic along with all the
related safety issues and concerns…all can be prevented by DENYING this REZONE to allow
higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Jed Groat
13532 N. 147th Drive
602-350-0914
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770 homes. This is
inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on Northern to the
75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and other
amenities. We are not a high-density community like Marley Park or Verrado with small lots and
community club-style amenities.
• This density is much too high for our neighborhood and was not part of the neighborhood plan when we built
our homes.
• Please understand the REZONE will ruin the character of our community by allowing high-density
small lots, smaller homes, two story homes and more traffic along with all the related safety issues
and concerns…all can be prevented by DENYING this REZONE to allow higher density with 770
homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners, and the
Board of Supervisors. We will be attending the public hearing and we appreciate your consideration to deny this
Rezone.
Sincerely,
V. Hari Areti
Barbara J. LeBel
18225 W El Caminito Dr.
Waddell AZ 85355
757-255-8601
We are sending this email in the hopes of your future consideration on the rezoning request in our neighborhood
in the White Tank Foothills subdivision in Waddell, AZ.
We are STRONGLY against this change and the rezoning plan for numerous reasons.
I moved my wife and 3 children to this area in Waddell specifically to be further out from the Surprise City area
where we had all lived since 1997 due to it's ever increasing small housing, packed into a small area with homes
right up next to each other.
The two neighborhoods in which we previously lived eventually turned into homes being sold and then numerous
renters moving into them which quickly deteriorated our quality of life in our neighborhood including our home
values. This also quickly led to an increase in crime and completely changed the dynamic of our "Small town feel"
to the point where we began to no longer even feel safe at times. I work as a long time Sworn Law Enforcement
Officer in our community and I could not be happier with the current area in Waddell and the community in which
we reside. I truly feel that approving this rezoning and allowing the number of planned homes for our community,
during phase 3 to double from its' already approved original plan would drastically change this area to the point of
no return. I know first hand what can quickly happen to the crime rates in a specified area due to some of these
listed concerns.
We moved to this area and this subdivision specifically to be further out away from the normal "cookie cutter"
type high density homes already provided in most city communities. The original plans for this community was
certainly a huge factor in our decision to be here, on larger lots without those high density issues.
Your vote in allowing this to happen in our community would only eventually force us and others in our similar
situation to move even farther out away from the city areas. We are very happy in our home and with this
community and its' quiet lifestyle. We do not plan to move and our hope is that in you all making the right decision
on this matter, it will prevent that from happening. The original 390 homes for this area is sufficient and will not
completely alter the dynamic of our neighborhood!
The proposed rezone will almost double the approved density from 390 homes to 770 homes. This is inconsistent
with the currently 2013 approved zoning for WTF Phase 3. Approving this rezone will disrupt the transition of
density from the larger (1-acre+) lots on Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching
Seldon to the north. White Tank Foothills is unique with mid-size lots offering room for private yard space, pools,
and other amenities. We are not a high-density community like Marley Park or Verrado with small lots and
community club-style amenities and this density is much too high for our neighborhood and was not part of the
neighborhood plan when we built our homes. Please understand the rezone will ruin the character of our
community by allowing high-density small lots, smaller homes, two story homes and more traffic along with all the
related safety issues and concerns…this all can be easily prevented by DENYING this REZONE to allow higher
density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners, and the
Board of Supervisors. We plan to attend the public hearing and we appreciate your consideration to deny this
rezone request. My wife and I have spoken to numerous neighbors, and long time friends in our immediate area
that all fall within the specified 300 feet of this planned change, and not one of them does not feel similar to us
and they feel very strongly opposed to this proposed change as well.
Thank you in advance for your consideration.
Sincerely,
Dennis and Brandy Ogorchock
18165 W. Las Palmaritas Drive
Waddell, AZ. 85355
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
•
The proposed Rezone will almost double the approved density from 390 homes to
770 homes. This is inconsistent with the currently 2013 approved zoning for WTF Phase
3.
•
Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots
on Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to
the north.
•
White Tank Foothills is unique with mid-size lots offering room for private yard space,
pools, and other amenities. We are not a high-density community like Marley Park
or Verrado with small lots and community club-style amenities.
•
This density is much too high for our neighborhood and was not part of the
neighborhood plan when we built our homes.
•
Please understand the REZONE will ruin the character of our community by allowing
high-density small lots, smaller homes, two story homes and more traffic along with all
the related safety issues and concerns…all can be prevented by DENYING this
REZONE to allow higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning
Commissioners, and the Board of Supervisors. We will be attending the public hearing and we
appreciate your consideration to deny this Rezone.
Sincerely,
Dr. and Mrs. Jason Ward
17929 W. Echo Lane
Waddell, AZ 85355
(623)606-8178 / (623)986-9992
Jason Ward, Ed.D.
IB Coordinator
Teacher Foreign Lang
Willow Canyon High School
p: 623-523-8000 x4080
a: 17901 W Lundberg St, Surprise, AZ 85388
w: dysart.org/wchs • Teacher Website
e: jward@dysart.org
Maricopa County,
I own the property at 17931 W Royal Palm Road in Waddell and I am opposed to this Rezoning Request
for the following reasons:
White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and other
amenities. We are not a high-density community like Marley Park or Verrado with small lots and
community club-style amenities.
Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on Northern to
the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
This density is much too high for our neighborhood and was not part of the neighborhood plan when
we built our homes.
In the Developers latest plan change they are also attempting to add a road to the South and parallel to
Royal Palm where an open green belt was planned and not a Road.
The REZONE will ruin the character of our community by allowing high-density small lots, smaller
homes, two story homes and more traffic along with all the related safety issues and concerns…all can be
prevented by DENYING this REZONE to allow higher density with 770 homes.
Please share my opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Jeffrey Sears
17931 W Royal Palm Rd., Waddell
602-309-5855
Mr. Martin Martell,
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
•
The proposed Rezone will almost double the approved density from 390 homes to 770 homes.
This is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
•
Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on
Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
•
White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with
small lots and community club-style amenities.
•
This density is much too high for our neighborhood and was not part of the neighborhood plan
when we built our homes.
•
Please understand the REZONE will ruin the character of our community by allowing high-density
small lots, smaller homes, two story homes and more traffic along with all the related safety
issues and concerns…all can be prevented by DENYING this REZONE to allow higher density
with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning Commissioners,
and the Board of Supervisors. We will be attending the public hearing and we appreciate your
consideration to deny this Rezone.
Sincerely,
Richard and Susan Willson
18009 W. Royal Palm Road
Waddell, AZ 85355
Maricopa County,
We are strongly opposed to this Rezoning Request for the following reasons:
• The proposed Rezone will almost double the approved density from 390 homes to 770 homes. This
is inconsistent with the currently 2013 approved zoning for WTF Phase 3.
• Approving this Rezone will disrupt the transition of density from the larger (1-acre+) lots on
Northern to the 75-foot wide R1-8 and 65-foot wide R1-7 lots approaching Seldon to the north.
• White Tank Foothills is unique with mid-size lots offering room for private yard space, pools, and
other amenities. We are not a high-density community like Marley Park or Verrado with small
lots and community club-style amenities.
• This density is much too high for our neighborhood and was not part of the neighborhood plan
when we built our homes.
• Please understand the REZONE will ruin the character of our community by allowing high-
density small lots, smaller homes, two story homes and more traffic along with all the
related safety issues and concerns…all can be prevented by DENYING this REZONE to allow
higher density with 770 homes.
Please share our opposition with your team, including County Staff, Planning and Zoning
Commissioners, and the Board of Supervisors. We will be attending the public hearing and we
appreciate your consideration to deny this Rezone.
Sincerely,
Jennifer Mayor
17944 W El Caminito Dr
Waddell AZ 85355
630-853-9641
Subject: Rezoning of White Tank Foothills adddition
I attended the second neighborhood meeting regarding the rezoning. I find it very discouraging that a 20
year old traffic study is being held in stone. This study needs to be redone, physically. Enough with
estimations and projections. Also, how can there not be an increase in emergency services with this
many new homes? One fire department and one dedicated sheriff? Please. Due diligence and proper
protection needs to be provided.
Vivian Hagstrom
DMP2021-001 White Tank Foothills Phase III and Z2021050 – White Tank Foothills Phase III
INCREASE IN THE NUMBER OF BUILDING SITES
The proposed construction does not align with the community that is presently adjacent to the proposed
construction in any direction. Presently homes in Noble Ridge are nearly a quarter of an acre or over a quarter of
an acre. Properties south and east of the proposed development are larger or large parcel rural horse properties.
This proposed denser construction does not mesh with the existing rural feel of the area. In addition, due west of
the proposed construction is land that is open and undeveloped.
GENERAL AREA TRAFFIC CONDITIONS
It needs to be re-emphasized that the traffic access to 303 and Northern Parkway in this area is limited and
constrained at best. People in the proposed community will only have access to 303 going south and will only have
an off ramp to the north. Due to the rail spur at Olive, there is no access to 303. This puts anyone needing access
to 303 to the north having to depart using Citrus to Olive to Cotton to Peoria, to have full access to 303. The Peoria
and Cotton intersection is already an overtaxed intersection that is poorly designed for normal use. Tight turning
radii and large vehicles compound the problem and during peak hours it is backed up 20 to 25 cars deep.
Access to Northern Parkway is cumbersome. The drivers will have to use Olive or Northern Avenue to get to the
Northern Parkway access point. This isn’t the only proposed development in the area, and many others are under
construction.
Olive Avenue is a primary access to this area from the north and recently a K-12 school began construction that will
significantly increase traffic in the morning and the afternoon during the school year. This school is a welcome
addition to the community, but its presence increases traffic during peak travel times.
In summary the general traffic conditions the full immediate access to 303 is Peoria Avenue on the north and
Glendale Avenue on the south. There has been limited traffic infrastructure improvement to this area. Traffic
saturation and congestion is a certainty under the present conditions and allowing additional building sites will
only increase the problem.
ACCESS TO THE PROPOSED DEVELOPMENT
This ingress and egress to the proposed development is of particular concern. My anecdotal evaluation is that the
traffic analysis does not match the current traffic conditions. The proposed use of White Tank Foothills Boulevard
to be the primary ingress and egress will overload 181st Street. This puts the load of traffic right through an
existing community. Even with the addition of the access to Citrus from the proposed development the natural
flow for those going north will be to drive to Seldon, a four-lane road that will allow simultaneous right and left
turns to access Citrus to get to Olive. A single lane road accessing Citrus will support right hand turns but labor any
left turn traffic. The most glaring miss is that there is no access to Northern Avenue from the proposed community.
There is a location within the proposed development to access Northern Avenue on the south end. This would
provide more direct access from the south end sites to 303 or proceed to Saraval or Reems to access Northern
Parkway. Without this proposed community having access to Northern Avenue all the traffic is funneled through
the existing communities and onto Citrus which in the least is an inconsiderate approach to managing traffic safety
and traffic flow.
CONCLUSION
My wife and I made the decision to move here a little over a year ago and one of the major components to choose
Waddell even with the community development of the area the county planning and zoning had maintained the
more rural feel with the implementation of the existing construction. As I review and contemplate what is recently
proposed from Citrus & Lower Buckeye, LLC it is my opinion it is a departure from the present housing
implementation. They may not believe that based on numerical analysis that thy are propagating high density
housing but for those of us that live in the existing community it has the feel and look of high-density housing. The
key component is ‘those of us that live here’. It is easy to subjectively say it isn’t high density, but the fact of the
matter is Citrus & Buckeye, LLC is proposing to saturate the acreage adjacent to Noble Ridge with a lot more
homes which translates to a lot more cars and a lot more people for acre.
Dean Schwab
18213 W El Caminito Drive
Waddell, AZ 85355
(720) 372-6072