Open Space Encroachment submittals were made in order to address situations in the Genesee community in which residences, decks, driveways and other residential improvements intended or anticipated to be constructed on individual lots in Genesee encroach outside of the boundaries of the lots and onto adjacent common property or open space (collectively referred to as “Open Space”) owned by Genesee Foundation.
These encroachments have historically arisen in two primary situations.
First, in a number of circumstances subsequent to completion of construction of improvements on residential lots within Genesee, it has been discovered that through mistake or inadvertence, all of the improvements have not been constructed within the boundaries of the lot and improvements encroach onto adjacent Open Space owned by Genesee Foundation.
Second, in certain circumstances prior to construction of improvements and during the architectural review committee review process, it has been determined that driveway access to a number of lots in Genesee is better provided by constructing a portion of the driveway across Open Space in order to preserve vegetation, address drainage concerns, deal with topographic challenges, and for other reasons. This policy will separately address driveway encroachments and encroachments of other improvements onto Open Space.
The Declaration of Covenants, Conditions and Restrictions for Genesee specifically allows the Foundation to grant private access easements over and across Open Space owned by Genesee Foundation. In recognition of that power of the Genesee Foundation and in recognition of the fact that topographic conditions, drainage conditions, considerations for the preservation of trees and other vegetation and rock outcroppings, and other concerns may make it more desirable for driveways to encroach onto Open Space in certain limited situations. It is also recognized that driveway easements or access easements include the necessary grading improvements, retaining walls, and other elements necessary to allow for the construction and maintenance of a driveway.
The Declaration does not contain a similar express power for the grant of easements or other accommodations to allow for the encroachment of building improvements, i.e., residences, decks, patios, garages, or any improvements other than access improvements (collectively “Building Improvements”) onto Open Space.