[Added 8-13-2007 by Ord. No. 622]
A.
Applicability. This section shall apply to any development which involves the ownership and maintenance of conservation open space, open land, recreation land, and common facilities (referred to as "common area" in this section) as required by this chapter and Chapter 183 Subdivision and Land Development.
B.
Purpose. The requirements of this § 210-44 are intended to assure in perpetuity the ownership, use and maintenance of common areas. The general principle shall be to assign ownership and maintenance responsibility to that entity which is best suited for the same and which will allocate any associated costs to the individuals which directly benefit from the use of the common area.
C.
Plan and legal documents. The developer shall submit a plan and proposed
legal documents for the purpose of dedicating, in perpetuity, the
use, ownership and maintenance of the approved common area. The plan
shall be approved by the Borough with the advice of the Borough Solicitor.
The provisions of the approved plan shall be incorporated into a development
agreement with the Borough, deed covenants and restrictions, or other
legal document which will effect the plan and which can be enforced
by the Borough.
D.
Use restriction. The use of any common area shall be limited to those uses which are specifically permitted or required by the applicable sections of this chapter and Chapter 183, Subdivision and Land Development.
E.
Development plan designations. The subdivision/land development plan
which will be recorded following final approval of the development
shall clearly show all common areas and specifically note the use,
ownership and maintenance responsibility of the same. Reference to
the legal document(s) governing the use, ownership and maintenance
of common areas shall be noted on the plan. The plan shall also contain
the following statement: "Open land, recreation land, and common facilities
shall not be sold separately or be further subdivided or developed,
nor shall such land be used for density for any other development."
F.
Methods for use dedication and common area ownership and maintenance.
The use of common areas and common area ownership and maintenance
shall be addressed by one or a combination of the methods which follow.
In any case, the developer shall document to the satisfaction of the
Borough that the chosen method(s) will preserve the common area use
rights established in accord with this section and provide for the
perpetual ownership and maintenance of all open land, recreation land,
and common facilities. All methods shall establish a mechanism for
the Borough to effect the use dedication and require operation and
maintenance of common areas, if the means established by the developer
fail to provide the same. All methods for use dedication and common
area ownership and maintenance, any combination of methods, and any
change in method which may be proposed by the ownership and maintenance
entity shall be subject to the approval of the Borough. Operation
and maintenance provisions shall include, but not be limited to, capital
budgeting for repair and/or replacement of common facilities, working
capital, operating expenses, casualty and liability insurance, and
contingencies.
(1)
Property owners' association or condominium agreements. All common
areas may be owned and maintained by a property owners' association
(POA) or condominium agreements (CA), including all lot owners in
the development, provided that:
(a)
The POA/CA is established by the developer as a nonprofit corporation
for the express purpose of ownership and maintenance of the common
area or as otherwise may be required by state statute.
(b)
Participation in the POA/CA is mandatory for all lot owners.
(c)
Provision is made for the maintenance of common areas during
the lot sale period and the orderly transition of responsibility from
the developer to the POA.
(d)
The POA/CA is empowered to assess POA/CA members to fund the
administration of the POA/CA and other costs associated with the common
area responsibilities.
(2)
Transfer to a private conservation organization. In the case of open
land and recreation land, the landowner may transfer fee simple title
to the said areas, or parts thereof, to a private, nonprofit organization
among whose purposes is the conservation of open land and/or natural
resources, provided that:
(a)
The deed contains the necessary covenants and restrictions in
favor of the Borough to effect the use dedication and common area
ownership and maintenance standards of this section and this chapter.
(b)
The organization proposed is a bona fide, operating and stable
conservation organization with a perpetual existence, as approved
by the Borough.
(c)
The conveyance of title contains the necessary provisions for
proper retransfer or reversion if the organization is unable to continue
to execute the provisions of title.
(d)
A maintenance agreement between the developer, the organization
and the Borough is executed to the satisfaction of the Borough and
its solicitor.
(3)
Deed-restricted private ownership. On privately held lands used for
agriculture, forestry enterprises and other uses permitted on open
land in accord with this chapter, deed restrictions may be used to
preserve open land, provided that such restrictions include a conservation
easement in favor of the Borough, with provisions for reversion to
the Borough, POA or trustee holding the remainder of the common area.
Title to such restricted lands may be transferred to other parties
for use as restricted by the deed.
(4)
Deed or deeds of trust. The landowner may provide, as approved by
the Borough, for the use, ownership and maintenance of common area
by establishing a trust for the same via a deed or deeds. The trustee
shall be empowered to levy and collect assessments from the property
owners for the operation and maintenance of the development.
(5)
Conservation easements held by the Borough. In the case of open lands
and recreation lands, the Borough may, but shall not be required to,
accept title to conservation easements on any such lands. In such
cases, the land remains in the ownership of an individual, POA or
condominium, while the development rights are held by the Borough.
The lands may be used for agriculture, forestry enterprises and other
uses permitted on open land in accord with this chapter, and title
to such lands may be transferred to other parties for use as restricted
by the conservation easement.
(6)
Fee simple and/or easement dedication to the Borough. In the case
of open lands or recreation lands, the Borough may, but shall not
be required to, accept in fee the title to any such lands, or any
interests (such as development rights or conservation easements) therein,
for public use and maintenance, provided that:
G.
Failure to preserve dedication of use and operation and maintenance
of common areas. If the method established for the dedication of use
and operation and maintenance of common areas fails to do so in reasonable
order and condition in accord with the approved development plan,
the Borough shall have the right and authority to take all necessary
legal action to effect such use dedication, operation and maintenance.
The action of the Borough shall be in accord with the following:
(1)
Notice. The Borough shall serve written notice on the assigned entity
or the property owners in the development setting forth the details
of the failure of the entity with regard to use dedication and operation
and maintenance of common areas.
(2)
Correction of deficiencies. The notice shall include a demand that
the deficiencies be corrected in a reasonable period of time, which
shall be stated in the notice.
(3)
Public hearing. A public hearing shall be conducted subsequent to
the notice and shall be advertised in accord with the definition of
"public notice" contained in this chapter. At such hearing, the Borough
may modify the terms of the original notice as to the deficiencies
and may extend the time for correction of the deficiencies.
(4)
Failure to correct. In the event the deficiencies in the notice,
as may have been modified at the public hearing, are not corrected
in accord with the established time period, the Borough may enter
upon the common area and maintain the same and/or correct the deficiencies.
The Borough shall continue such action for such time as may be necessary
to correct the deficiencies. Said action shall not constitute a taking
or dedication of any common areas, nor vest in the public the right
to use any common area.
(5)
Reinstatement of responsibility. The responsibility of operation
and maintenance shall not be reinstated to the assigned entity until
such time as the entity has demonstrated to the Borough that the proper
steps have been effected to modify the terms of use dedication, operation
and maintenance and/or to reorganize or replace the responsible entity
so that use dedication and operation and maintenance established by
the approved development plan will be assured.
(7)
Public costs. The costs of the preservation of use dedication and the cost of maintenance and operation of any open land conducted by the Borough in accord with this section, including any administrative and legal costs, shall be assessed ratably against the properties in the subject development which have a right of enjoyment and/or use of the common areas. The assessment shall be made a lien on the properties, and the Council shall, at the time of the notice in Subsection G above, file the required notice of lien against the properties.
