This section specifies covenants required between the City and the owners’ association (such association or entity being referred to herein as an "HOA" that is established independent of a residential development’s Declaration of Covenants instrument. Any residential development that has common area or any other area, facility, or amenity that is to be owned and/or maintained by the owner’s association shall record a legally binding covenant instrument applicable to each property owner and parcel within the development.

When a covenant is required pursuant to this Chapter of the UDO, the developer shall render the covenant instrument in a form acceptable to the City Attorney.

Covenants that are required pursuant to this Chapter of the UDO shall not be included in the development’s Declaration of Covenants instrument. Covenant instruments shall be independently recorded documents only modifiable or terminable as provided by the UDO.

The covenant language required by this section shall be recorded in the County Recorder’s office. Every recorded plat, Development Plan and Declaration of Covenants instrument shall bear a cross-reference to the covenant instrument. The deed for every parcel, condominium unit or other applicable division of ownership shall bear a cross-reference to the covenant instrument.

When a covenant has been established pursuant to this Chapter of the UDO, the owner or owners’ association may file an amendment petition with the Commission for a modification or termination of the covenants as provided in IC 36-7-4: 700 Series.

Responsibility for the maintenance of all amenities, facilities, common areas and other non-dedicated development features rests with the owners’ association and/or the property owners jointly, at no expense or burden to the City. All the amenities, facilities, common areas and non-dedicated development features shall be maintained in a structurally sound, aesthetically pleasing, and safe manner; and in pursuit of maintaining the design, function and aesthetic established by the developer and committed to the City on the day of approval. The developer shall establish an escrow account to provide for the maintenance of all common areas, facilities, and amenities. When responsibility for the maintenance of the amenities, facilities, and common areas is turned over to an owners’ association, the escrow account shall be transferred to the owners’ association.

In the event the owners’ association does not fulfill its responsibility to maintain the development, it is in violation of the UDO, and the owners’ association and/or the property owners are subject to CHAPTER 11. ENFORCEMENT & PENALTIES to remedy the violation.

To ensure the maintenance of a properly designed and installed drainage system, the following language shall be required as a provision of the covenants:

1. 1.
   Drainage swales (ditches) along dedicated roadways and within the right-of-way or dedicated drainage easements, are not to be altered, dug out, filled in, tiled, or otherwise changed without the written permission of the Engineering Director. Property owners must maintain these swales as sodded grass-ways, or other surface approved by the Engineering Director.
2. 2.
   Water from roofs or parking areas shall be contained on the property long enough so that drainage swales or ditches shall not be damaged by such water. Directly piping water to a drainage swale is prohibited unless approved by the Engineering Director.
3. 3.
   Driveways may be constructed over these swales or ditches only when appropriately sized culverts or other approved structures have been permitted by the Engineering Director. Culverts must be protected, especially at the ends, by head walls or metal end sections, and, if damaged enough to retard the water flow, must be replaced.

Should private wells be allowed, the covenants shall reflect that private wells are to be installed and that the City is not now or in the future obligated to provide, furnish or have any liability for fire protection that could have been provided by the public water supply.

When trees and/or shrubs are provided by the developer, the covenants shall include the following statements:

1. 1.
   The owner or person in control of the dominant real estate adjacent to the area between the street and the sidewalk and/or right-of-way easement line on which any tree or shrub is planted pursuant to the above, shall be responsible for the maintenance of the tree or shrub, and its removal, if such removal is necessary.
2. 2.
   If after notice from the City, the owner or person in control fails to maintain or remove a dead tree or shrub or any dead or dangerous limbs or branches thereon, the City may remove said shrub or limbs and collect the costs thereof from the owner or person in control.
3. 3.
   The City and all public utilities retain their ownership and right to access the area between the paved street and the right-of-way line of the dominant owner and they retain the right to reasonably remove any tree or shrub impeding necessary work to be performed by the City and/or all public utilities, or other properly authorized users.
4. 4.
   Neither the City nor any public utility or other properly authorized user of the City’s property located between the street and the sidewalk and/or right-of-way line shall be liable to the owner of the dominant real estate for any damages done to trees or shrubs, located upon City property between the paved street and the sidewalk and/or right-of-way or easement line as a result of actions of the City or any public utility or other authorized user or their agents or employees in the performance of their duties.

1. 1.
   Foundation and Control. When an owners’ association is used for the purposes of maintaining/controlling facilities within the development the Declaration of Covenants shall state:

   1. a.
      When the owners’ association must be constituted;
   2. b.
      When the management and control of the owners’ association must be turned over to the persons buying the lots or units. Control of the owners’ association shall not be turned over before 80% of the lots or units are sold.
   3. c.
      When ownership of the amenities, facilities, and common areas shall be turned over to the owners’ association. Amenities and common areas shall not be turned over to the owners’ association before 80% of the lots or units are sold.
2. 2.
   Assessments. Whenever a Declaration of Covenants calls for the collection of an annual assessment from the members of the owners’ association, the Declaration shall specify:

   1. a.
      When the assessment begins;
   2. b.
      Which amenities, facilities, and common areas are to be maintained using the assessment funds; and
   3. c.
      When and how the Board of Directors of the owners’ association is to be constituted.

1. 1.
   Each "member" of an HOA for this purpose shall be an owner, in fee simple, of each parcel of property subject to such governing documents concerning such parcel, and each such "member" shall be entitled to one vote per parcel of property so owned. However, if the HOA is for a condominium community and if the members have Percentage Interests that are not equal but rather are based on the size of the condominium units as set forth in the Governing Document, those Percentage Interests shall be applicable to determine the voting rights of the members
2. 2.
   When the development company is drafting the Governing Documents, special attention should be directed to the percentage of members that will constitute a quorum for purposes of conducting the annual meeting or a special meeting of the members. Factors to be considered should include the total number of parcels planned and type of community planned. The goal is to set a realistic quorum so that the HOA can conduct business at its meetings including matters such as the election of Directors and the approval of the annual budget.
3. 3.
    In accordance with Ind. Code 32-25.5-3-9, the governing documents of the HOA must contain a provision allowing the members to amend the governing documents at any time, from time to time and such amendment may not require the consent of more than seventy-five percent (75%) of the members.  However, pursuant to this Ordinance, any amendment to the Governing Documents specifically involving changes relating to “HOA Operations” and rental restrictions may not require the consent of the members owning more than fifty percent (50%) of the total number of parcels. For purposes of this provision, “HOA Operations” pertain to matters that are normally addressed in an HOA’s By-Laws such as the quorum for membership meetings, the date of the annual meeting, the number and eligibility of Directors, the length of terms for the Directors, the Officers, the use of proxies, notices required to be given for annual meetings and special meetings of the members, and the location of membership meetings. “HOA Operations” is not intended to apply to provisions such as use restrictions or architectural requirements.
4. 4.
   Until a certificate of occupancy has been issued on the last parcel of property subject to the Governing Documents of the HOA owned by the declarant pursuant to the original Governing Documents, amendments to the Governing Documents as provided in 3. above shall require the consent of the declarant, regardless of the approval of the other members. In accordance with Ind. Code 32-25.5-3-9, the declarant’s consent to an amendment may be required if:

   1. a.
      the declarant owns one (1) or more units within the subdivision; and
   2. b.
      not more than seven (7) years have passed since the original governing documents were first recorded
5. 5.

   HOAs are encouraged to allow member participation through virtual meetings and electronic voting.

   (Ord. 022023C, 05/15/2023)