deed book noepohoa.org/wp-content/uploads/2016/03/1979-0629_sylvangrovedccrs...deed book no.330...

DEED BOOK NO.330 --------BERKELEY COUNTY, W. VA.

3465

SYLVAN GROVE SUBDIVISION, SECTION I

DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, AND EASEMENTS

This Declaration made this 29th day of June 1979, by PIONEER BUILDERS INC., a West Virginia corporation.

WHEREAS, the undersigned is the owner of all those certain lots, pieces, or parcels of land, situate, lying and being in Mill Creek District, Berkeley County, West Virginia known as Sylvan Grove Subdivision, a plat of said subdivision of record in the office of the Clerk of the County Commission of Berkeley County, West Virginia, in Map Slide Cabinet 1, slide __; and

WHEREAS, the present owner of said parcels of real estate has established a general plan for the improvement and development of said parcels of real estate.

WITNESSETH: That the said Pioneer Builders Inc., its successors and assigns, does hereby establish and impose on the aforementioned subdivision the following covenants, conditions, restrictions and easements, to be observed and enforced by the said Pioneer Builders Inc., its successors and assigns, and all purchasers of lots within said subdivision, as follows:

1. Residential Use: Such lots, and each and every one thereof, are for single-family residential purposes only. No building or structure intended for or adapted to business purposes, and no apartment house, double house, lodging house, rooming house, hospital, sanatorium or doctor’s office, or other multiple-family dwelling shall be erected, placed or permitted, or maintained on such premises, or on any part thereof. No improvement or structure whatever, other than a first-class private dwelling house, patio walls, swimming

pool attached garage or carport may be erected, placed, or maintained on any lot in such premises.

2. Subdivision of lots: No lot within the subdivision shall be split, divided or subdivided for sale, resale, gift, transfer or otherwise.

3. Setback Lines: No house or other structures hall be erected closer than fifty (50) feet from the front property line, or closer than fifteen (15) feet from the side or rear property lines of any lot within the subdivision.

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4. Minimum Building Requirements: No structure shall be erected, placed or be permitted to remain on any lot within said subdivision other than a one-detached

single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars, and such other outbuildings incidental to residential use. The ground floor area of the main dwelling shall not be less than one thousand (1,000) square feet for a one story dwelling and eight hundred twenty five (825) square feet for a two story dwelling exclusive of garage, covered walks, basements and open porches.

5. Temporary Structures: No outbuilding, garage, shed, tent, trailer, or temporary building of any kind shall be erected, constructed or permitted or maintained prior to commencement of the erection of a residence, as is permitted hereby, and no outbuilding, garage, shed, tent, trailer, basement, or temporary building shall be used for permanent or temporary residence purposes; provided, however, that this paragraph shall not be deemed or construed to prevent the use of a temporary construction shed during the period of actual construction of any structure on such property, nor the use of adequate sanitary toilet facilities for workmen which shall be provided during such construction.

6. Completion of Construction: Construction of all buildings erected upon any lot within said subdivision shall be completed within one (1) year from the start thereof, provided that the Building Committee may extend such time when, in its opinion, conditions warrants such extension.

7. Approval of Construction Plan by Building Committee: All plans for the construction of private roads and driveways and all building plans for any building, fence, wall, or structure to be erected upon any lot within said subdivision, and any changes after approval thereof, any remodeling, reconstruction, alteration, or addition to any building, road, driveway, or other structure upon any lot in said subdivision shall first require the approval in writing of the building committee.

The Building Committee shall consist of three persons as appointed by Inwood Center Associates its successors or assigns.

Before beginning the construction of any road, driveway, dwelling, building, fence, wall or other structure whatsoever or remodeling, reconstruction or altering of such road, driveway, or other structure upon any lot, the person or persons desiring to erect, construct or modify the same shall submit to the Building Committee two (2) complete sets of plans showing the desired erection, construction, or modification. No structure of any kind, the plans of which have not received the written approval of the Building Committee and which do not comply fully with such approved plans and specifications, shall be erected, constructed, placed or maintained on any lot in the subdivision.

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The approval of such plans and specifications shall be evidenced by the written endorsement on such plans and specifications, a copy of which shall be delivered to the

owner or owners of the lot upon which the prospective building, road, driveway or other structure is contemplated prior to the beginning of such construction. No changes or deviations in or from such plans and specifications as approved shall be made without the prior written consent of the Building Committee. The Building Committee shall not be responsible for any structural defects in such plans or specifications or in any building or structure erected according to such plans or specifications. Failure by the Building Committee to give its written endorsement on such plans and specifications within a period of thirty (30) days after such plans and specifications shall have been delivered to the Building Committee shall be deemed as consent of such plans and specifications by the Building Committee.

8. Utility Easements: An easement ten feet (10) in width along the front, side and rear lines of all lots within said subdivision is hereby reserved for the purpose of allowing the installation maintenance of all residential utility service to all lots within the subdivision.

9. Nuisance: No obnoxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which maybe or become an annoyance or nuisance to the neighborhood. No vehicle unless currently licensed shall be allowed to remain on any lot within said subdivisions, nor shall any vehicle be allowed to remain in a state of repair so as to be offensive to the eye.

10. Pets: No livestock or other animal shall be raised or kept on any lot within said subdivision other than household pets.

11. Signs: No billboards or advertising signs of any character shall be erected, placed, permitted or maintained on any lot or improvement thereon, except as herein expressly permitted. A name and address sign shall be permitted. No other sign of any kind or design shall be allowed except when the same is necessary to promote the sale of the property in and the development of all lots within said subdivision. Nothing herein shall be construed to prevent Inwood Center Associates, its successors or assigns, from erecting, placing, or maintaining sign structures and offices as may be deemed necessary by them for the operation of the subdivision.

12. Streets: All streets shown upon the recorded plat of said subdivision are dedicated for public use, including the free use thereof for the installation, maintenance

and operation of all public utilities for the purpose of providing residential service to lots within the subdivision.

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13. Homeowners Association: For the purpose of maintaining roads, traffic control, general planting within roadway areas, and all community services of every kind and nature required and desired within said subdivision of the general use and benefit of all lot owners. Each and every lot owner, in accepting a deed for any lot in said subdivision, agrees to and shall be a member of and shall be subject to the obligations and duly enacted by-laws and rules of the Sylvan Grove Subdivision Homeowners Association; provided, however, that no lot owner of any lot within Section I of the Sylvan Grove Subdivision shall be responsible for or assessed for the costs of any installation, maintenance or use of any central sewage systems installed in any other section of said subdivision. As a member of the Sylvan Grove Subdivision Homeowners Association, each and every lot owner of Sylvan Grove Subdivision III shall have the use and benefit of the central sewage system and sewage plant constructed on Sylvan Grove II property.

14. Duration: These covenants, conditions, restrictions, and easements are to run with the land and shall be binding on all parties and persons claiming under them for a period of twenty-five (25) years from the date of recording of these covenants. After such time, the said covenants, conditions, restrictions, and easements shall be automatically extended for such successive periods of ten (10) years, unless an instrument signed by a majority of the then-owners of the lots within the said subdivision has been recorded, agreeing to change said covenants in whole or in part.

15. Enforcement: Enforcement shall be by proceeding at law or in equity against any person or persons violating or attempting to violate any covenant, either to restrain violations or to recover damages, and furthermore, the person or persons in violation shall pay all costs of any such suit to enforce compliance with these covenants.

16. Severability: Invalidation of any of these covenants, conditions, restrictions by judgment or by Court Order shall in no way affect any of the other provisions which remain in force and effect.

IN WITNESS WHEREOF, Pioneer Builders, Inc.,, a West Virginia corporation, has caused this instrument to be executed on its behalf by its President, and attested by its Secretary this 29th day of June, 1979.

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2360

SYLVAN GROVE SUBDIVISION, SECTION II


This Declaration made this 13th day of December 1982, by PIONEER BUILDERS INC., a West Virginia corporation.

WHEREAS, the undersigned is the owner of all those certain lots, pieces, or parcels of land, situate, lying and being in Mill Creek District, Berkeley County, West Virginia known as Sylvan Grove Subdivision, Section II-A, Section II-B, Section II-C, and Section II-D, a plat of said sections are of record in the office of the Clerk of the County Commission of Berkeley County, West Virginia, in Map Slide Cabinet 1, slide 73, 74, and 75, respectively; with the exception of two prior sales hereinafter mentioned; and

WHEREAS, the present owner of said parcels of real estate has established a general plan for the improvement and development of said parcels of real estate; and

WHEREAS, developer has previously sold lot 9, section Section II-B to Dirk E. Baer and has sold lot 19, Section II-B to Allan W. Shockey, husband and wife, all of which parties enter this Declaration to establish agreement as to the covenants, conditions, restrictions, and easements for all of Section II of Sylvan Grove which shall apply to both of the previously sold lots and to remaining lots in Section II of Sylvan Grove Subdivision; and

WHEREAS, in the deeds to “Baer” and “Shockey”, other covenants, conditions, restrictions, and easements were set forth which all of the parties hereto desire to terminate;

THEREFORE, the parties hereto agree to the following which shall apply to all of the lots in Section II of Sylvan Grove as more particularly set forth on the plats previously mentioned.

WITNESSETH: That the said Pioneer Builders Inc., its successors and assigns, does hereby establish and impose on the aforementioned subdivision the following covenants, conditions, restrictions and easements, to be observed and enforced by the said Pioneer Builders Inc., its successors and assigns, and all purchasers of lots within said subdivision, as follows:

1. Residential Use: Such lots, and each and every one thereof, are for single-family residential purposes only. No building or structure intended for or adapted to business purposes, and no apartment house, double house, lodging house, rooming house,

hospital, sanatorium or doctor’s office, or other multiple-family dwelling shall be erected, placed or permitted, or maintained on such premises, or on any part thereof. No improvement or structure whatever, other than a first-class private dwelling house, patio walls, swimming pool attached garage or carport may be erected, placed, or maintained on any lot in such premises.


3. Setback Lines: No house or other structures hall be erected closer from the property lines on the front, side, or rear than as set forth on the plat of Sylvan Grove Subdivision, Section II-A, II-B, II-C, and II-D as recorded in plat cabinet 1, slide 73,74,and 75.


single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars, and such other outbuildings incidental to residential use. The ground floor area of the main dwelling shall not be less than one thousand (940) square feet for a one story dwelling and eight hundred twenty five (825) square feet for a two story dwelling exclusive of garage, covered walks, basements and open porches.

5. Temporary Structures: No outbuilding, garage, shed, tent, trailer, or temporary building of any kind shall be erected, constructed or permitted or maintained prior to commencement of the erection of a residence, as is permitted hereby, and no outbuilding, garage, shed, tent, trailer, basement, or temporary building shall be used for permanent or temporary residence purposes; provided, however, that this paragraph shall not be deemed or construed to prevent the use of a temporary construction shed during the period of actual construction of any structure on such property, nor the use of adequate sanitary toilet facilities for workmen which shall be provided during such construction.




Before beginning the construction of any road, driveway, dwelling, building, fence, wall or other structure whatsoever or remodeling, reconstruction or altering of such road, driveway, or other structure upon any lot, the person or persons desiring to erect, construct or modify the same shall submit to the Building Committee two (2) complete sets of plans showing the desired erection, construction, or modification. No structure of any kind, the plans of which have not received the written approval of the Building Committee and which do not comply fully with such approved plans and specifications, shall be erected, constructed, placed or maintained on any lot in the subdivision. The approval of such plans and specifications shall be evidenced by the written endorsement on such plans and specifications, a copy of which shall be delivered to the owner or owners of the lot upon which the prospective building, road, driveway or other structure is contemplated prior to the beginning of such construction. No changes or deviations in or from such plans and specifications as approved shall be made without the prior written consent of the Building Committee. The Building Committee shall not be responsible for any structural defects in such plans or specifications or in any building or structure erected according to such plans or specifications. Failure by the Building Committee to give its written endorsement on such plans and specifications within a period of thirty (30) days after such plans and specifications shall have been delivered to the Building Committee shall be deemed as consent of such plans and specifications by the Building Committee.

8. Utility Easements: An easement ten feet (10) in width along the front, side and rear lines of all lots within said subdivision is hereby reserved for the purpose of allowing the installation maintenance of all residential utility service to all lots within the subdivision




12. Streets: All streets shown upon the recorded plat of said subdivision are dedicated for public use, including the free use thereof for the installation, maintenance and operation of all public utilities for the purpose of providing residential service to lots within the subdivision.





The parties hereto agree to accept these as the covenants, conditions, restrictions, and easements for all of Sylvan Grove, Section II-A, II-B, II-C, and II-D and waive any prior restrictions set forth on previously conveyed lots in Sylvan Grove, Section II-A, II-B, II-C, and II-D

IN WITNESS WHEREOF, Pioneer Builders, Inc.,, a West Virginia corporation, has caused this instrument to be executed on its behalf by its President, and attested by its Secretary this 13th day of December, 1982.

THIS DOCUMENT PREPARED BY: Richard A. Pill; Attorney at Law, of the law firm of Pill & Scales, 415 North Queen Street, P.O. Box 440, Martinsburg, West Virginia 25401

ADDENDUM

WHEREAS, the undersigned are the owners of Lot No. 1, Section II-A of Sylvan Grove Subdivision, the same having been conveyed to them by Pioneer Builders, Inc. , a corporation, by deed dated December 13, 1982, and recorded in the office of the Clerk of the County Commission of Berkeley County, West Virginia, in Deed Book No._____, at

page_____; and

WHEREAS, Pioneer Builders, Inc., a corporation, has recently amended its Declaration of Covenants, Conditions, Restrictions and Easements with respect to Sylvan Grove Subdivision, Sections II-A, II-B, II-C, and II-D; and

WHEREAS, the undersigned desire to join into said Amended Declaration for the purpose therein set forth.

NOW, THEREFORE, WHITNESSETH: That the undersigned, Kenneth L. Snyder and Linda Snyder, do hereby join in the execution of the aforesaid Amended Declaration, and do hereby agree that title to Lot No. 1, Section II-A of Sylvan Grove Subdivision shall be held and transferred by them subject to and together with all the Covenants, Conditions, Restrictions, and Easements set forth in said amended Declaration

This instrument was prepared by James D. Steptoe Attorney

ONLINE REFERENCE SOURCE: http://www.geocities.ws/sgha2/ccr2p.htm

http://www.geocities.ws/sgha2/ccr2p.htm


7452

SYLVAN GROVE SUBDIVISION, SECTION III


This Declaration made this 24th day of October 1988, by Inwood Center Associates, P.O. Box N, Inwood, WV. 25421, a West Virginia corporation.

WHEREAS, the undersigned is the owner of all those certain lots, pieces, or parcels of land, situate, lying and being in Mill Creek District, Berkeley County, West Virginia known as Sylvan Grove Subdivision, Section III, a plat of said subdivision of record in the office of the Clerk of the County Commission of Berkeley County, West Virginia, in Map Slide Cabinet 3, slide 82; and

WHEREAS, the present owner of said parcels of real estate has established a general plan for the improvement and development of said parcels of real estate.

WITNESSETH:

That the said Inwood Center Associates, its successors and assigns, does hereby establish and impose on the aforementioned subdivision the following covenants, conditions, restrictions and easements, to be observed and enforced by the said Inwood Center Associates, its successors and assigns, and all purchasers of lots within said subdivision, as follows:

1. Residential Use: Such lots, and each and every one thereof, are for single-family residential purposes only. No building or structure intended for or adapted to business purposes, and no apartment house, double house, lodging house, rooming house, hospital,

sanatorium or doctor’s office, or other multiple-family dwelling shall be erected, placed or permitted, or maintained on such premises, or on any part thereof. No improvement or structure whatever, other than a first-class private dwelling house, patio walls, swimming pool attached garage or carport may be erected, placed, or maintained on any lot in such premises.


3. Setback Lines: No house or other structures hall be erected closer than thirty (30) feet from the front property line, or closer than five (5) feet from the side or rear property lines of any lot within the subdivision.

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single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars, and such other outbuildings incidental to residential use. The ground floor area of the main dwelling shall not be less than one thousand (1,000) square feet for a one story dwelling and eight hundred twenty five (825) square feet for a two story dwelling exclusive of garage, covered walks, basements and open porches.

5. Temporary Structures: No outbuilding, garage, shed, tent, trailer, or temporary building of any kind shall be erected, constructed or permitted or maintained prior to commencement of the erection of a residence, as is permitted hereby, and no outbuilding, garage, shed, tent, trailer, basement, or temporary building shall be used for permanent or temporary residence purposes; provided, however, that this paragraph shall not be

deemed or construed to prevent the use of a temporary construction shed during the period of actual construction of any structure on such property, nor the use of adequate sanitary toilet facilities for workmen which shall be provided during such construction.




Before beginning the construction of any road, driveway, dwelling, building, fence, wall or other structure whatsoever or remodeling, reconstruction or altering of such road, driveway, or other structure upon any lot, the person or persons desiring to erect, construct or modify the same shall submit to the Building Committee two (2) complete sets of plans showing the desired erection, construction, or modification. No structure of any kind, the plans of which have not received the written approval of the Building Committee and which do not comply fully with such approved plans and specifications, shall be erected, constructed, placed or maintained on any lot in the subdivision.

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The approval of such plans and specifications shall be evidenced by the written endorsement on such plans and specifications as approved shall be made without the prior written consent of the Building Committee. The Building Committee shall not be responsible for any structural defects in such plans or specifications or in any building or structure erected according to such plans or specifications. Failure by the Building Committee to give its written endorsement on such plans and specifications within a period of thirty (30) days after such plans and specifications shall have been delivered to the Building Committee shall be deemed as consent of such plans and specifications by the Building Committee.

8. Utility Easements: An easement ten feet (10) in width along the front, side and rear lines of all lots within said subdivision is hereby reserved for the purpose of allowing the installation maintenance of all residential utility service to all lots within the subdivision.




12. Streets: All streets shown upon the recorded plat of said subdivision are dedicated for public use, including the free use thereof for the installation, maintenance and operation of all public utilities for the purpose of providing residential service to lots within the subdivision.

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IN WITNESS WHEREOF, Inwood Center Associates, a West Virginia partnership, has caused this instrument to be executed on its behalf by its Managing Partner, and attested by its Managing Partner this 24th day of October, 1988.

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ERA LIBERTY/ LINDA KILROY 304 728 200 2

'7'1-.Q..J SYLVAN GROV~ SUBDIVISIO~, SECTION III

DECLARATIO~ or COVENANTS, CONDITIONS, RESTRICTIONS, AND EASEMENTS

P ,03 1

Tni.s Declaration, ma<le this t:;;!!:;hy of ~988, Inwood Cente~ A9sociates, P.O. Box N, In~ood, WV 25421, a

W".t Virginia corpor~t1on.

by

WHEREAS, tho undersigned i. th~ OWner of all those

certain lots, pl~cQs, or pa~~els of land, situate, lyinq ~nd

boinq in Mill Creek District, ae~kel@y County, ~est Virginia

known as Sylvan Gro~e Subdivisi on, Section Ill, &. plat of

said sub<livision of record in the Oft1ce of the Cl@r~ of the

county Commission of B@rkeley county, west Virginia, in Map

Slide Cabinet ~,Slide cc;,/ : and

WHEREAS, ~he present Owner of said p~~eels of real

estate has established a general plan for the i~provement

and d~velopment of said parcels of real estate.

W l T N E SSE T H:

That the Ga!d Inwood center Assooiate8, tt 9ucce9Sors

and assigns, does heteby e$tablis~ and impoBe on th~

afor~mentionod subdivisi on th~ following covenants,

conditions, re~trictions and easemen~s, to be ob~erv~d and

enforce<l by i:b" said Inwood Center Assocl"te., it successOrs

and a.signs, and ;:>11 purchasers of lot. "ithin said

subdivision, as follows:

1 _ Ra8idGntial Use. Such lota, and each Gnd ev~ry one

thereOf, .l.re for si.nqle-!a.mily ~:e!Ji.dentlal purposes only.

No building Or structure intended for or adapted to bu~ine$6

p~rpOO~B. and no apartment hOQso, double house, lod9in~

hOU8~, rooming houae, hospital, sanatorium or doc~or' s

offic~. or other multlple-ra~ily dwelling shall be erected,

plaoed O~ permitted, or maintained On such premi5es, or on

any part thereot4 No imp~o~ement or structure wh~tever,

other than a firet-olas3 private dwelling house, patio

walle, 9wimming pool, attached qarage or c&rport may

@rected, placed. or maintained on any lot in such premises.

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2. Subdivision of Lots. No lot within the subdivision

sh611 bo split, divided or 8ubdi~ided for sale, r~s~le,

9ift. trans!er or otherwise.

3. s~tb~ck Lines. No house or other structure sh~ll

be er~cted closer than thirty CJ~J feet from the front

property line. or closer than five IS) feet from the side Or

rear property lines of ~ny lot within said subdivision.

4. HinimuM Building Requirements. ~o Dtr~ctur~ shall

be -erected, ~laeed o~ permitted to ~eruain on ~ny lot within

said subdivision othe~ th~n a one-detatch~d single-family

dwelling not to exceed two and one-half gtori€s in height

and a privat~ garage for not more than two c~rs, and such

other outbuilding. incidental to resid~ntial use. The

ground floor area of the main dwelling sh~ll not be less

than One thQusand (1,000) square feet for a on~-story

dwelling and eight hundred twenty-five (825) square feet for

~ tWO-Bto~y dwelling axclu~lv~ of garage, covered w~lks"

basements and open porches.

5_ Temporary Structures. No outbuilding, 9arag~,

shQd , tent, trailer, or temporaxy building of ~ny kind shall

erected, conetruct@d Or permitted or maintained pr~o~ to

commencement of ~he erection of a residence, ~e is permitt~d

hereby, and not outbuilding, qaraqe, shed, ten~, trailer ~

basement. or temporary build111g shall be used for permanent

O~ tomporary r(Jsidence pU.rpOSI~S; provid@d, however I that

this paraqraph Ghall not be dee~ed Or construed to prevent

the use of a temporary construction shed during the pe~iod

of ec~ual construction of any Bt~ucture or $uch property,

nor tho USe of adequate 8anita~y toilet f~ci11ti65 fo~

workm~n which shall be provided durinq 9UC~ con~truction.

6_ Completion of Con8tr~ction_ Conetruction of all

buildin9$ erect~d upon any lot within 9ai~ subdivision shall

be co~leted wi~in one (l) y~ar from tne start thereof.

provided th.t the Building Committ~e ~ay extend such time

when, in its opinion, conditions warrants such extension. . rlEASE INITIAL

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7. Approval of construction ~lan by auild1nq "

committee. All pl~na for the con5truction of private roads

and driveways and all building pl~n8 fer any buildin9~

fence, w~ll, or structure to be ereete4 upon any lot within

s~id sub~ivis1on, and any changes after approval the~eort

~ny re~odelin91 r@construction, alteration or addition to

anr building, road, driv@way or oth@r structure upon any lot

,in a'aid 9ubdi1Ji!lion shall first rf!:quira the 0P1?roval in

~riting of t~e Building Committe~.

The Building Co~ittee shall consiat of three persons

as appointed by Inwood Center Aosociates its suecessors or

assigns.

BQfore beginning th~ construction of any ro~d,

driveway. dwelling. building, fence. w~ll Or other structure

whatsoever or remodeling I r@construction or altering of such

road r driveway or other structure upon any lot, the person

o~ pe~sons d~sirin9 to erect, con9truct or modify the s~e

shall submit to ~he Building Committee two complete S~t9 of

, plan~ ~howin9 the desired @rection l construction, O~

modification. No structure of any kind, the pl~n9 of which

have not received th~ written appro~al of the ~uild1n9

Co~ttee ~nd wh~ch do not comply fully with such ~pproved

plane and specifications, shall be erected, constructed,

~laced or maintained on ~ny lot in the 9ubdivision. The

~pproval of such plans and specification shall be evidenced

by the written eodors~ment on such plans and specifications

~B approved .hall be made without the pr1o~ written consont

of tho BUilding committee. ~he BUilding Committee shall not

be responsible fo~ ~nystru~tural detects in such plans or

specifications O~ in any building Or structure eree~~d

aCcording to such plana and ~pecificat1ons, Failure by the

auildin~ Committee to 91~e its w~itten endorsem~nt on suoh

plans and epecifications within ~ pe~iod of thirty (30) days

after 8uch plan~ ~nd specifications shall have been

d~livero~ ho th~ Building Co~ittee ah~ll be deerocd as a

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con8ent o{ such plan~ and specifica~ion8 by ~~e Building

Committee .

8. Utility Easements. hn easement ten (10) feet >n

w1dth along the front, side and rear lines of &11 lots

within said subdivision i8 hereby re~erved for the purpose

of allo~ing the installation and maintenance of all

rnsiden~ial utility service to all lots within ~h~

sUbdividon.

9. "ulsanca~ No obnoxious or offensive trade or

ac~ivi~y shall be carried on upon any lo~, nor ~hall

Anything be done the~oon ~h1eh maybo Or bacome an annoyance

or nuisance to the neighborhood. No vehicle unless

currently Hcen.ed shall be allowed to remain in", On any lot

w~thin BBid Buhdivlaion., nor .hall any vehicle be allOWed

to remain in a .tate of repair GO as to be offensiv& to the

eye.

10. ~ ~o llveetock oc other anl~~l sh~ll be

raised or kopt on any lot witnin said subdivision otner than

household pet~.

11. Signa. No blllboa~dG or adve~tiaing ,i9n8 of any

cbaracter Dhall be erected, placed, p~rmitted or main~ain@d

on any lot or improvoment th@reon, eKoept as herein

expresB~y permittod. A namo and address sign shall be

p8rmi~ted. No other nign of any kind or design shall be

allQwed except when the 8~ i8 necossary to promote the

Gale of tbe property 1n and the developm@n~ of a~~ lots

wi~hin the subdivision. Nothing here1n shall be con8~ued

to prevent Inwood Center Associat@s, its successors or

a.a1qns, from erecting, p~acin9, or maintaininq g~9n

stx-ucturelJ and offices &8 may bl! deemed neclI!!$.9~.t"Y by them.

for the opo~ation of the 8ub~iviaion.

12. Stree~.. ~ .treet8 shown upon th~ rocord@d plat

of said subdivision are dedicated for pUblic use, including

the fr@e use thoreof to~ the installation, maintennnee and

op8r&~ion of all public u~iliti@& for the ~urpose of

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providing residential service to lots within the

~ubdivil!ij1.on ..

13. Homeowners A88oci~tion. FOr the purpose of

maintaining roads, traffic control. general planting within

roadway areas, and all ~ommunity services of every kind and

nature required end desi~eQ within said subdivision of the

q'oneral us@ and·, benefit of .till lot. owners, eaoh and every

lot owner, in accepting a deed for any lot in said

subdivision. agrees to ~nd shall be a member of and shell be

subject to the obligations and duly enacted by-laws and

rules of the Sylvan Grove subdivision HomoOwnerB

Associ.t1tionr provl0ed, however, that no lot owner of any lot

"'1thfn Section I of the Sylvan Grov" Subdivision shall be

responsible for or 899~s8ed for the oosts of ~ny

installation, maintenance or use of any central eeuerage

Gy~tems ~n~talled 1n any other sect10ns of said subdivision.

~s a m~mber of the Syl~Qn Grove Svbdivision Homeowners

A~~ociQtion, each ~nd every lot owner of Sylvan Gro~e

SUbdi~i.ion III shall have the use and benefit of the

centrd se"a9"" 9y3t~m and sewage plant construoted on Sylva"

Grove II property.

14~ OUrQt1on~ Those Covenants, conditions,

restrictions and eascm~nts are to run with the land and

shall be binding on all parties and persons claiming under

them for a periOd of twentYMfive (25) years fcom th~ date of

recording' of these covenants. Atter such time, the said

covenant •• condition., rBBtrictions and ~aa~~Gnts $hall be

a.ut.ot'O.lltic~tlly extended for such :J.UCC8fisive periods of ten

(10) years, unless an instrument signed by a majority Q£ the

then-owners of tho lots within the .aid subdivision has been

recorc1ed, aqreein9 to ahan9'e s:tid cov*~nlLnta in ",hole or in

part,

l5. :Enforcement. ~nforcement shall be by proc@edin9

at law or in equity against Any person or p@rsons violating

or atte~pting to viol.te any eove~nt , eithe~ to r@strain

PLEASE INITlAl MS- +

OCT- 06- 20 11 12 :56

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ERA LIBERTY/ LINDA KILROY 304 728 2002 P . 036

violations or to recover dl.lIMgas, and furthex-!Qore 'i" the

pe~son or per80n& in ~iolation shall pay all casts of any

auch suit to enforce compliance with these ¢on~Qn&nt$.

16. Seyer~illty. lnvalida~ion of any of ~he5@

convenanto. conditions and restrict ions by judgment or by

Court Order shall in no way affect any ot the other

provisioM whieh .,reJ\llin in foroe and. effect.

IN WITNESS waER.BOF, InwoC)d Conte); Aes'ociates, D West

Virginia partnorship, haa caused thie instrument to bQ

executed on its behalf by ita MAna9ing p~and attested

by its &?~.~tbis;lit!.a.ay 0/> ,1988.

(SEAL)

AT'I'EST: ;

INWOOD CENTER ASSOCI~~ES, A WEST VIRGINlh GENERAL P~R~NERSHIP

and for tho County and Stato

, a Notary public in

aforesai d, 60 hereby certify

that ~ /I. ~12!t:2n , who eigned tbD writin9 hereto

annexed, bea. . .r!ng

19~, haa this

date the Plif=a .. y of 0".#1&= day in my Baid County. befo~e me,

acknowle~ged the Baid writing to be the 3Ct and dee~ of

said corporation.

Gtv"n under "'y han~ thh Z~ay of

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ENTEflED

CASE NO. 95 1236-S-CN

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

CHARLESTON

Entered: July 16 , 1996

SYLVAN GROVE WASTE TREATMENT, INC., a corporation, Alexandria, Virginia.

Application for a certificate of convenience and necessity to provide sewer service to certain customers in the Inwood area of Berkeley County, and for approval of financing and rates and charges incidental thereto.

RECOMMENDED DECISION

FINAL

On December 21, 1995, Sylvan Grove Waste Treatment, Inc. (Sylvan Grove), P.O. Box 1677, Alexandria, Virginia, a corporation, filed with the Public Service Commission (Commission) a duly verified application for a certificate of convenience and necessity to provide sewer services to certain persons/and/or businesses located in the Inwood area of South Berkeley County. By its application Sylvan sought to provide service to those customers served or allegedly served by a system now operated by Knouse Foods Cooperative, Inc. (Knouse Foods), or by the County of Berkeley as the successor in title to Knouse Foods' assets, without authority of any certificate of convenience and necessity. The application estimated the cost of the proj ect to be $78,425 and requested approval of private financing for the project consisting of a ten-year note with interest only for the first four years at 7.5% per annum and principal and interest to be amortized over the last years. Finally, Sylvan requested no increase in

s rate, stating that it would charge the new customers the same rates as its present customers.

By order of December 21, 1995, the Commission directed Sylvan Grove to publish the Notice of Filing, which provided that, if no substant protests to the application were filed within thirty (30) days after the date of publication, the Commission might waive formal hearing and grant the application based upon its review of the evidence submitted with the application.

On January 3, 1996, Sylvan Grove filed an affidavit of publication establishing that the notice of filing was published on December 27, 1995, in The Journal, published in Martinsburg, West Virginia.

On January 12, 1996, W. Clyde and Ramona L. Pressley filed a protest, stating that they are owners of two homes in the Sylvan Grove Subdivision;

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that the Sylvan Grove waste treatment facility was developed for the subdivision and not for future expansion beyond the subdivision's borders; that the developer has been shoddy in his workmanship of streets, lighting, and some houses, and has ignored complaints of the residents; and that there is evidence that the addition of further residences to the waste treatment system would create overload and, accordingly, jeopardize the best interests of the home owners in the subdivision, including lowering the value of their homes.

On January 13, 1996, Donald D. Mathieux, also a resident of the Sylvan Grove Subdivision, filed an objection similar to that of the Pressleys, stating that the Sylvan Grove waste treatment facility was designed to serve three sections of the development; that the third section was redesigned to have more units; and that already a further complex of eighty-six townhouses is being served by the sewage treatment facility. He further stated that the facility is located within the subdivision and smells under certain conditions.

On January 17, 1996, Staff Attorney J. Joseph Watkins filed the Initial Joint Staff Memorandum, stating that, upon completion of its investigation, Commission Staff would file its final recommendation.

On January 18, 1996, James B. Rice filed a protest, which included the following:

We have been told that the [waste treatment] facility is at its capacity and that in order to add more homes the facility would have to be enlarged. We live within 300-500 feet of the facility and WILL NOT agree to the enlargement. They have a history of it overflowing. The facility used to have a buzzer that rang when it reached capacity. The buzzer rang so often that they removed it. We have seen them dumping sewage from trucks used to clean out septic tanks in the facility. The smell from the plant is overpowering in the summer and fall. Ask anyone who sits our high school football stadium, which is within 200 ft., about the smell.

On January 19, 1996, Edgar J. Mason filed a protest, stating that the Berkeley County Public Service Sewer District had announced a plan to expand into the area at issue in this matter by installing a package treatment plant at the end of the line now in place and that the plan of Sylvan Grove to run new lines through his community in the opposite direction would be a waste of money and counterproductive to the District's plans.

Finally, on January 22, 1996, the Berkeley County Public Service Sewer District (District), by counsel George V.Piper, filed a protest, stating that Sylvan Grove is seeking to expand its public service area into the District's boundaries; that the District is pursuing a workable option to provide sewer service to the Knouse Foods customers under a Governor's Community Partnership Grant; and that there is no need to issue a certificate to Sylvan Grove to serve the same customers. The protest concluded that, since the District is the authorized entity to provide sewage service to the area and is in the process of doing so, the application of Sylvan Grove should be denied.


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On January 22, 1996, the Commission, by Order, referred this matter to the Division of Administrative Law Judges (ALJ Division) for decision on or before July 19, 1996.

On January 24, 1996, the Berkeley County Commission (County Commission), by counsel Norwood Bentley, filed a protest to the application, supporting the District in its position. The protest added that the County Commission had accepted a gift of the sewer system assets previously owned by Knouse Foods.

On January 26, 1996, Kenneth W. Thompson filed a protest, also stating that the residents of Sylvan Grove Subdivision have experienced problems with the system since its institution.

On February 6, 1996, William F. Rohrbaugh entered his appearance as counsel for the District.

On February 8, 1996, Chris Dye, Vice-President of the Sylvan Grove Homeowners Association, filed a protest similar to the others but adding that all assets of Thomas H. Dameron, the developer of Sylvan Grove Subdi vision, had been frozen by court order during the pendency of an investigation into whether Mr. Dameron, a lawyer, had stolen $3.5 million from clients he had represented in real estate settlements.

On February 9, 1996, the undersigned ALJ issued a Procedural Order scheduling this matter for hearing on April 18, 1996.

On March 12, 1996, the undersigned ALJ issued a Procedural Order requiring Sylvan Grove to cause to be published a Notice of Hearing that was attached to the order.

On April 10, 1996, Sylvan Grove, by counsel Richard G. Gay, notified the Commission that Sylvan Grove had filed a Petition in Bankruptcy in the United States Bankruptcy Court for the Northern District of West Virginia. He requested a stay of these proceedings, pursuant to the automatic stay provisions of 11 U.S.C. §362(a).

On April 10, 1996, Mr. Watkins filed a Further Joint Staff Memorandum, stating that, since Sylvan Grove was unable to move forward on this matter, Staff recommended that the hearing be canceled. Mr. Watkins stated that Staff would issue a further recommendation to determine whether this matter could be dismissed altogether.

On April 12, 1996, the undersigned ALJ issued a Procedural Order canceling the hearing scheduled for April 18, 1996, noting that she had been advised that the notice of hearing had not been published. The order continued,

Sylvan Grove is put on notice that this certificate application is a statutory due date proceeding. Pursuant to west Virginia Code §24 2-11, the Commission must either grant, deny or modify and grant the application within 270 days of the date of filing, or on or before September 16, 1996. Even if the bankruptcy proceeding stays the statutory review period for certificate proceedings, any proceeding filed by Berkeley Count Public Service Sewer District


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to serve the described area will not be stayed forward. Further, Sylvan Grove should consider proposal will meet the economic feasibility test, Commission to review certificate applications, in bankruptcy filing.

and will go whether its used by the

light of the

On July 12, 1996, Mr. Watkins filed a Second Further Joint Staff Memorandum, with attachments, including a letter from Roger Schlossberg, Esq., stating that Mr. Gay was precluded by federal law from proceeding in this matter on behalf of Sylvan Grove due to the bankruptcy proceedings but that authority had been requested from the United States Bankruptcy Court for the Eastern District of Virginia, to which the bankruptcy case had been transferred, to permit Mr. Gay to participate in this matter. Mr. Watkins' memorandum included the following discussion:

11 U.S.C. §362(b) (4) states the following:

(b) the filing of a petition under section 301, 302, or 303 of this title, ... does not operate as a stay ...

(4) under subsection (a) (I) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power;

A discussion of the applicability of such a stay to regulatory proceedings is the issue in Wengert Transportation, Inc. v. Crouse Cartage Company, Case No. 84 00146, United States Bankruptcy Court {N.D. Iowa, E.D., March 31, 1986}, attached. I believe Wengert refutes the notion that an automatic stay applies in the present proceeding.

West Virginia Code §24-2-11 requires that if a decision is not rendered within a 270-day period, "the Commission shall issue a certificate of convenience and necessity as applied for in the application." In other words, the certificate automatically issues. West Virginia Code §24-2-11(a) also notes, however, "in establishing that public convenience and necessity do exist, the burden of proof shall be upon the applicant." As (I) numerous public protests have been filed in this case, thus necessitating a hearing, (2) Sylvan Grove has not supplemented its application on a post-bankruptcy filing basis to evidence its financial ability to operate the proposed addition, and (3) Sylvan Grove is apparently precluded from proceeding with its prosecution of this certificate application, Staff recommends the Commission deny and dismiss without prejudice this certificate application. Doing so will avoid the possibility of an automatic grant of the application pursuant to West Virginia Code §24 -2 -11. More importantly, it will not prejudice Sylvan Grove as the certificate may be reapplied for in the future.

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DISCUSSION

Upon review of the Wengert Transportation decision, the undersigned ALJ agrees with Mr. Watkins that this proceeding is not stayed pursuant to 11 U.S.C. §362(a). In Wengert Transportation, the debtor had filed with the Iowa Transportation Regulation Authority (TRA) an application for a certificate of convenience and necessity. The Bankruptcy Court ruled that, since 11 U.S.C. §362 (a) (I) on its face stayed only "the commencement or continuation ... of a judicial, administration or other action or proceeding against the debtor [, ]" the provision would have no applicability because the action was commenced Qy the debtor rather than against it. The Court further ruled that, even if the automatic stay provision were applicable to the TRA proceeding, the proceeding was not subject to the stay because of the exception of 11 U.S.C. 362(b} (4), because, while that provision must be narrowly construed to apply only to governmental actions protecting the public health and safety, the regulatory power involved in Transportation fulfilled that requirement.

The Wengert Transportation decision also supports that it would be improper to rule that, because Sylvan Grove is involved in bankruptcy proceedings, it necessarily could not fulfill the Commission's economic feasibility test, for the Court noted that the "debtor's financial fitness must be determined on the basis of its post-petition assets and liabilities as well as the debtor's 'track record' since reorganization began." See Wengert Transportation, fn. 1. Accordingly, the Staff recommendation that the application be denied and dismissed without prejudice will be adopted.

FINDINGS OF FACT

1. On December 21, 1995, Sylvan Grove Waste Treatment, Inc., filed a duly verified application for a certificate of convenience and necessity to provide sewer services to certain persons/and/or businesses located in the Inwood area of South Berkeley County. By its application Sylvan sought to provide service to those customers served or allegedly served by a system now operated by Knouse Foods Cooperative, Inc. (Knouse Foods), or by the County of Berkeley as the successor in title to Knouse Foods' assets, without authority of any certificate of convenience and necessity. The application estimated the cost of the project to be $78,425 and requested approval of private financing for the project consisting of a ten-year note with interest only for the first four years at 7.5% per annum and principal and interest to be amortized over the last six years. Finally, Sylvan requested no increase in its rate, stating that it would charge the new customers the same rates as its present customers. (See application) .

2. Various protests to the application were filed with the Commission. (See submissions of January 12, 19, 22, and 24, 1996).

3. Syl van Grove filed a petition in bankruptcy in United Bankruptcy Court and filed a request with the Corrnnission that proceedings be stayed, pursuant to the automatic stay provisions U.S.C. §362(a). (See April 10, 1996 sUbmission).

PUBLIC SERVICE COMMISSION

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States these of 11

5

4. Commission Staff, relying on the reasoning of Wengert Transportation, Inc. v. Crouse Cartage Company, Case No. 84-00146, United States Bankruptcy Court (N.D. Iowa, E.D., March 31, 1986), argued that the automatic stay provisions do not apply in this matter. Commission Staff recommended that the application be denied and dismissed without prejudice. (See Second Further Joint Staff Memorandum filed July 12 I 1996, quoted supra) .

CONCLUSIONS OF LAW

1. The undersigned ALJ agrees with Commission Staff that the automatic stay provisions of 11 U.S.C. §632{a) have no applicability to the application for a certificate of convenience and necessity filed by Sylvan Grove, for the reasons given in Wengert Transportation, and discussed heretofore.

2. Because there is no time before the recommended decision due date of July 19, 1996, for Sylvan Grove to submit further information on its

, financial ability to operate the proposed addition and for a hearing to be held, which is required under W.Va. Code §24-2-11, it is appropriate to adopt the Staff's recommendation that the application be denied and dismissed without prejudice.

ORDER

IT IS, THEREFORE, ORDERED that the application for a certificate of convenience and necessity filed on December 21, 1995, by Sylvan Grove Waste Treatment, Inc., be denied and dismissed without prejudice.

IT IS FURTHER ORDERED that this matter be removed from the Commission's docket of open cases.

IT IS FURTHER ORDERED that the Acting Executive Secretary serve a copy of this order upon the Commission by hand delivery, and upon all parties of record by United States Certified Mail, return receipt requested.

Leave is hereby granted to the parties to file written exceptions supported by a brief with the Acting Executive Secretary of the Commission within fifteen (15) days of the date this order is mailed. If exceptions are filed, the parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions.

If no exceptions are so filed this order shall become the order of the Commission, without further action or order, five (5) days following the expiration of the aforesaid fifteen (15) day time period, unless it is ordered stayed or postponed by the Commission.

Any party may request waiver of the right to file exceptions to an Administrative Law Judge's Order by filing an appropriate petition in writin with the Secretar. No such waiver will be eff


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I

approved by order of the Commission, nor shall any such waiver operate to make any Administrative Law Judge's Order or Decision the order of the

g~~t::t~~. sooner than five (5) days~:~~pro;al of such waiver by the

)) \1\,6

SA: s

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Sunya Anderson Administrative Law Judge

PUBLIC SERVICE COMMISSION

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