| A. | Amount - Not less than 15 percent of total tract proposed for TND shall be designated as and used exclusively for public and/or civic space. Public right-of-way shall not be included as common open space. - Any of the following methods may be used, either individually or together, to preserve, own, and maintain public and/or civic space: condominium, homeowners' association, dedication in fee simple, dedication of easements, and transfer of fee simple title and easements to a private conservation organization. |
| B. | Such land shall not be eligible for transfer to another party except for transfer to another method of ownership permitted under this Section, and then only where there is no change in the public space ratio. The following specific requirements are associated with each of the various methods: |
| | | 1. | Homeowners Association - The public space may be held in common ownership by a homeowner's association. This method shall be subject to all of the provisions for homeowner's associations set forth in Subsections 5.(a) and 5(b), below, and the Homeowners' Association Agreement shall be recorded. | | 2. | Fee Simple Dedication - The Borough may, but shall not be required to, accept any portions of the public space, provided | | | | a. | such land is accessible to the residents of the Borough; | | b. | there is no cost of acquisition (other than any costs incidental to the transfer of ownership, such as title insurance); and | | c. | the Borough agrees to and has access to maintain such lands. |
| | 3. | Transfer to a Private Conservation Organization - With permission of the Borough, an owner may transfer either the fee simple title, with appropriate deed restrictions running in favor of the Borough, or restrictive easement to a private non-profit organization, among those purposes is to conserve public space land and/or natural resources, provided | | | | a. | the organization is acceptable to the Borough and is a bona fide conservation organization with perpetual existence; | | b. | the conveyance contains appropriate provision for proper reverter or re-transfer in event that the organization becomes unwilling or unable to continue carrying out its functions; and | | c. | a maintenance agreement acceptable to the Borough is reached. |
| | 4. | Dedication of Easements - The Borough may, but shall not be required to, accept easements for public use of any portion or portions of public space land, title to which is to remain in ownership by condominium or homeowners' association, provided | | | | a. | such land is accessible to the residents of the Borough; | | b. | there is no cost of acquisition (other than any costs incidental to the transfer of ownership, such as title insurance); and | | c. | a maintenance agreement acceptable to the Borough is reached. |
| | 5. | Condominium - The public space may be controlled through the use of condominium agreements. Such agreements shall be in conformance with the Uniform Condominium Act of 1980. All public space land shall be held as "common element." |
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| C. | Specific Requirements for Homeowners' Association. - If a homeowners' association is formed, it shall be governed according to the following regulations: |
| | | 1. | The developer shall provide to the Borough a description of the organization, including its by-laws and documents governing public space maintenance and use restrictions. | | 2. | The organization shall be established by the developers and shall be operating (with financial subsidization by the developers, if necessary) before the sale of any lots within the development. | | 3. | Membership in the organization is mandatory for all purchasers of homes therein and their successors. | | 4. | The organization shall be responsible for maintenance of an insurance on common space. The organization also shall be responsible for real estate taxes on public space, except where the following alternative is utilized: | | | | a. | The developer of any subdivision or land development proposed to contain an area(s) of public space shall arrange with the County Board of Assessment a method of assessment of the public space that will allocate to each tax parcel in the subdivision a share of the total assessment for such public space. Where this alternative is to be utilized, the method of allocation shall be approved by the Council. |
| | 5. | The members of the organization shall share equitably the costs of maintaining and developing public space, in accordance with the procedures established by them. | | 6. | In the event of any proposed transfer of public space land by the homeowners' association within the methods here permitted, or of the assumption of maintenance of public space land by the Borough as hereinafter provided, notice of such action shall be given to all property owners within the TND by the homeowners' association. | | 7. | The organization shall have or give adequate staff to administer common facilities and maintain public space. | | 8. | The homeowners' association may lease back public space lands to the developer, his heirs or assigns, or to any other person or corporation qualified to manage public space for operation and maintenance of public space lands, but such a lease agreement shall provide: | | | | a. | that the residents of the TND shall at all times have access to the public space lands contained therein; | | b. | that the public space to be leased shall be maintained for the purposes set forth in this Ordinance; and | | c. | that the operation of public space facilities may be for the benefit of the residents of TND only or may be open to the residents of the Borough. The least shall be subject to the approval of the Borough, as shall any transfer or assignment of the lease. Lease agreements so entered upon shall be recorded with the Recorder of Deeds of Union County within 30 days of their execution and a copy of the recorded lease shall be filed with the Borough. |
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| D. | Location, Design, and Layout Standards. |
| | | 1. | The public space shall be laid out to the satisfaction of the Council in accordance with the best principles of site design, shall be consistent with the Borough Comprehensive Plan and any applicable Plans, and shall be located and designed as an area or areas easily accessible to residents of the TND and preserving natural features. | | 2. | At least 10 percent of the public space area shall be appropriate for active recreational use and, subject to the provisions of Article VI of this Ordinance, at least 20 percent shall be located outside flood plain areas, in addition, no less than 10 percent of the public space area shall remain as a natural area. | | 3. | The tentative and final plans shall designate the use of natural area, the type of maintenance to be provided, and a planting plan with plant schedule. In designating use and maintenance the following classes may be used: | | | | a. | Lawn. A grass area with or without trees that may be used by the residents for a variety of purposes and that shall be mowed regularly to insure a neat and tidy appearance. | | b. | Natural Area. An area of natural vegetation undisturbed during construction, or replanted; such areas may contain pathways. Meadows shall be maintained as such. Maintenance may be minimal but shall prevent the proliferation of undesirable plants. Litter, dead trees, and brush shall be removed and streams kept in free-flowing conditions. | | c. | Recreation Area. An area designated for a specific recreational use, including but not limited to tennis, swimming, play fields, and tot lots. Such areas shall be located and maintained in such manner as not to create a hazard or nuisance and shall perpetuate the proposed use. |
| | 4. | Maintenance. | | | | a. | In the event that the organization established to own and maintain a public space, or any successor organization, shall at any time after establishment of the TND fail to maintain the public space in reasonable order and condition in accordance wit the development plan, the Borough may serve written notice upon such organization or upon the residents and owners of the TND, setting forth the manner in which the organization has failed to maintain the public space in reasonable conditions, and said notice shall include a demand that such deficiencies of maintenance be cured within 30 days thereof, and shall state the date and place of a hearing therein which shall be held within 14 days of the notice. At such hearing the Borough may modify the terms of the original notice as to the deficiencies and may give an extension of time within which they shall be corrected. If the deficiencies set forth in the original notice or in the modifications thereof shall not be corrected within said 30 days or any extension thereof, the Borough, in order to preserve the taxable values of the properties within the TND and to prevent the public space from becoming a public nuisance, may enter upon said public space and maintain the same for a period of one year. | | b. | Said entry and maintenance shall not constitute a taking of said public space, and shall not vest in the public any rights to use the public space except when the same is voluntarily dedicated to the public by the residents and owners and such dedication is acceptable to the Borough. Before the expiration of said year, the Borough shall, upon its initiative or upon the request of the organization theretofore responsible for the maintenance of the public space, call a public hearing upon notice to such organization, or to the residents and owners of the TND, to be held by the Borough, at which hearing such organization or the residents and owners of the TND shall show cause why such maintenance by the Borough shall not, at the election of the Borough, continue for a succeeding year. If the Borough shall determine that such organization is ready and able to maintain said public space in reasonable condition, the Borough shall cease to maintain said public space at the end of said year. | | c. | If the Borough shall determine such organization is not ready and able to maintain said public space in a reasonable condition, the Borough may, in its direction, continue to maintain said public space during the next succeeding year and subject to a similar hearing and determination in each year thereafter. The decision of the Borough in any case shall constitute a final administrative decision subject to judicial review. | | d. | The cost of such maintenance and enforcement proceedings by the Borough shall be assessed ratably against the properties within the TND that have a right of enjoyment of the public space and shall become a lien on said properties. Said assessment or charges shall be subordinate in lien to the lien of any prior mortgage or mortgages on the property that is subject to such assessments or charges. The Borough, at the time of entering upon such said public space for the purpose of maintenance, shall file a notice of such lien, in the office of the Prothonotary of Union County, upon the properties affected by such lien within the TND. |
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