A.Â
All major residential subdivisions shall meet the open space
requirements of this chapter. The amount of required open space shall
be determined in accordance with the site capacity calculations as
set forth in this chapter. All subdivision and/or land development
plans shall contain or be supplemented by such material as required
to establish the method by which the open space shall be perpetuated,
maintained and administered. The approval of the final land development
plan and other materials submitted therewith shall be construed as
a contract between the land owner(s) and the Township and shall be
noted on all applicable deeds.
B.Â
Required open space shall be subject to permanent conservation
easements prohibiting future development and defining the range of
permitted activities.
C.Â
Land occupied by nonrecreational buildings or structures, roads
or road rights-of-way, parking areas for nonrecreational uses, land
reserved for future parking areas for nonrecreational uses, individual
or community sanitary sewage treatment facilities, stormwater detention
or retention basins or the yards or lots of dwelling units may not
be counted towards meeting open space requirements.
D.Â
Delineation of open space. A method of physically delineating
private lots from common open space areas shall be provided. Such
method may include shrubbery, trees, markers or other method acceptable
to the municipality.
A.Â
Generally. Open space shall be permanently restricted from future
subdivision and/or development. Under no circumstances shall any development
be permitted on such lands at any time, except for the following:
(1)Â
Conservation of open land in its natural state (for example,
woodland, fallow field or managed meadow).
(2)Â
Recreation area. An area designated for recreational use, including,
but not limited to, tennis courts, basketball courts, swimming pools,
dog parks, playfields, tot-lots, community centers, museums and accessory
day-care centers. Such areas shall be maintained so as to avoid creating
a hazard or nuisance and shall perpetuate the proposed use.
(3)Â
Neighborhood open space uses such as village greens, commons,
picnic areas, community gardens, trails and similar low-impact, passive
recreational uses specifically excluding motorized off-road vehicles,
rifle ranges and other uses similar in character and potential impact
as determined by the Board.
(4)Â
Golf courses may comprise up to half of the minimum required
open space, but shall not include driving ranges or miniature golf.
Their parking areas and any associated structures shall not be included
within any required open space; their parking and accessways may be
paved and lighted.
B.Â
Legal documents providing for ownership and/or maintenance of
open space shall be reviewed by the Township Solicitor and be subject
to approval by the Board of Supervisors prior to recording of the
final plan.
C.Â
Ownership options. The municipality requires open space to be
initially offered for dedication to the municipality, which shall
have the right of first refusal. The following methods may be used,
either individually or in combination, for the ownership of open space
and common facilities. Common facilities shall not be transferred
to another entity except for transfer to another method of ownership
permitted under this section, and then only when there is no change
in the common facilities or in the open space ratio of the overall
development. Ownership methods shall conform to the following:
(1)Â
Fee simple dedication to the municipality. The municipality
may, but shall not be required to, accept any portion of the open
space and common facilities, provided that:
(2)Â
Condominium association. Open space and common facilities may
be controlled through the use of condominium agreements. Such agreements
shall be in accordance with the Pennsylvania Uniform Condominium Act
of 1980,[1] as amended. All open land and common facilities shall
be held as common element.
[1]
Editor's Note: See 68 Pa.C.S.A. § 3101 et seq.
(3)Â
Homeowners' association. Open space and common facilities may
be held in common ownership by a homeowners' association, subject
to all of the provisions for homeowners' associations set forth in
state regulations and statutes (such as the Uniform Planned Community
Act of 1977[2]). In addition, the following regulations shall be met:
(a)Â
The applicant shall provide the municipality, for
its approval, a description of the organization of the proposed association,
including its bylaws, and all documents governing ownership, maintenance
and use restrictions for the open space and common facilities.
(b)Â
The proposed association shall be established by
the owner or applicant and shall be operating (with financial subsidization
by the owner or applicant, if necessary) before the sale of any dwelling
units in the development.
(c)Â
Membership in the association shall be automatic
(mandatory) for all purchasers of dwelling units therein and their
successors in title.
(d)Â
The association shall be responsible for maintenance
and insurance of common facilities.
(e)Â
The bylaws shall confer legal authority on the
association to place a lien on the real property of any member(s)
falling delinquent in their dues. Such dues shall be paid, with the
accrued interest, before the lien may be lifted.
(f)Â
Written notice of any proposed ownership transfer,
by the association, of open space or common facilities to another
entity as permitted herein, or the assumption of maintenance of such
lands or such common facilities, must be given to all members of the
association and to the municipality no less than 30 days prior to
such event.
(g)Â
The association shall have adequate staff to administer,
maintain and operate such lands and common facilities.
[2]
Editor's Note: See 68 Pa.C.S.A. § 5101 et seq.
(4)Â
Private conservation organization or the county. With permission
of the municipality, an owner may transfer either fee simple title
of the open space or easements on the open space to a private nonprofit
conservation organization or to the county, provided that:
(a)Â
The conservation organization is acceptable to
the municipality and is a bona fide conservation organization intended
to exist indefinitely;
(b)Â
The conveyance contains appropriate provisions
for proper reverter or retransfer in the event that the organization
or Monroe County becomes unwilling or unable to continue carrying
out its functions;
(c)Â
The open space is permanently restricted from future
development through a conservation easement, and the municipality
is given the ability to enforce these restrictions; and
(d)Â
A maintenance agreement acceptable to the municipality
is established between the owner and the organization or Monroe County.
(5)Â
Dedication of easements to the municipality. The municipality
may, but shall not be required to, accept easements for public use
of any portion of the common land or facilities. In such cases, the
facility remains in the ownership of the condominium association,
homeowners' association or private conservation organization while
the easements are held by the municipality. In addition, the following
regulations shall apply:
D.Â
Community association documents.
(1)Â
A community association document, also known as a "homeowners'
association document" or a "condominium association document," shall
be provided for all subdivision and land development applications
which propose lands or facilities to be used or owned in common by
all the residents of that subdivision or land development and not
deeded to the municipality.
(2)Â
The elements of the community association document shall include,
but shall not necessarily be limited to, the following:
(a)Â
A description of all lands and facilities to be
owned by the community association. This description shall include
a map of the proposal highlighting the precise location of those lands
and facilities.
(b)Â
Statements setting forth the powers, duties and
responsibilities of the community association, including the services
to be provided.
(c)Â
A declaration of covenants, conditions and restrictions,
giving perpetual easement to the lands and facilities owned by the
community association. The declaration shall be a legal document that
also provides for automatic association membership for all owners
in the subdivision or land development and shall describe the mechanism
by which owners participate in the association, including voting,
elections and meetings. Furthermore, it shall give power to the association
to own and maintain the common property and to make and enforce rules.
(d)Â
Statements prescribing the process by which the
community association reaches decisions and setting forth the authority
to act.
(e)Â
Statements requiring each owner within the subdivision
or land development to become a member of the community association.
(f)Â
Statements setting cross covenants or contractual
terms binding each owner to all other owners for mutual benefit and
enforcement.
(g)Â
Requirements for all owners to provide a pro rata
share of the cost of the operations of the community association.
(h)Â
Provisions giving the association the legal right
to place a lien on the real property of any member who fails to pay
his/her dues and a process of collection and enforcement to obtain
funds from owners who fail to comply.
(i)Â
A process for transition of control of the community
association from the developer to the unit owners.
(j)Â
Statements describing how the lands and facilities
of the community association will be insured, including limit of liability.
(k)Â
Provisions for the dissolution of the community
association, in the event the association should become unviable.
E.Â
Maintenance. Unless otherwise agreed to by the municipality,
the cost and responsibility of maintaining common facilities and open
space shall be borne by the property owner, condominium association,
homeowners' association or conservation organization.
(1)Â
The applicant shall, at the time of preliminary plan submission,
provide a plan for maintenance of open space and operation of common
facilities in a form acceptable to the municipality.
(2)Â
In the event that the organization established to maintain the
open space and the common facilities, or any successor organization
thereto, fails to maintain all or any portion thereof in reasonable
order and condition, the municipality may assume responsibility for
maintenance, in which case any assets and general funds of the organization
may be forfeited and any permits may be revoked or suspended.
(3)Â
The municipality may enter the premises and take corrective
action, including extended maintenance. The costs of such corrective
action may be charged to the property owner, condominium association,
homeowners' association, conservation organization, or individual
property owners who make up a condominium or homeowners' association
and may include administrative costs and penalties. Such costs shall
become a lien on said properties. Notice of such lien shall be filed
by the municipality in the office of the Prothonotary of the County.
A.Â
The municipality may require that the applicant establish and
contribute to an open space endowment fund to cover the continuing
costs of maintaining the land (involving activities such as mowing
meadows, removing invasive vines, paying insurance premiums and local
taxes, etc.), including costs associated with active or passive recreation
facilities. Spending from this fund should be restricted to expenditure
of interest so that the principal may be preserved. Assuming an annual
average interest rate of 5%, the amount designated for the endowment
fund shall be at least 20 times the estimated annual maintenance costs.
Such estimate shall be prepared by an agency, firm or organization
acceptable to the municipality, and with experience in managing conservation
land and recreational facilities, and subject to review by the municipal
solicitor and approved by the municipality.
B.Â
This fund shall be transferred by the developer to the designated
entity with ownership and maintenance responsibilities (such as the
municipality, a homeowners' association or a land trust) at the time
this designated entity is created.