In the case of a residential lot cluster development, a planned
residential development or a townhouse development, where the individual
units are to be offered for sale, the developer shall, not later than
10 days following issuance of the first certificate of occupancy but
in advance of any conveyance or transfer of title, provide for a nonprofit
organization for the ownership and maintenance of any common open
space for the benefit of owners or residents of the development, unless
said common open space is to be dedicated to and accepted by the Borough.
The nonprofit open space organization shall be activated when
61% of the lots or units in the development or section thereof shall
have been sold. Title of all common open space property shall be conveyed
to such organization at the time such organization is activated.
Membership in such open space organization shall be automatic
upon conveyance of title to any property by the developer.
Such organization shall not be dissolved and shall not dispose
of any common open space area established as part of a residential
lot cluster, planned residential or townhouse development, by sale
or otherwise, except to an organization conceived and established
to own and maintain the common open space for the benefit of such
development, and any such successor organization shall not be similarly
dissolved or dispose of any of its common open space without first
offering to dedicate the same to the Borough.
In the event that such organization shall fail to maintain the
common open space area in reasonable order and condition, the governing
body may serve written notice upon such organization or upon the owners
of the development setting forth the manner in which the organization
has failed to maintain the common open space in reasonable condition,
and said notice shall include a demand that such deficiencies of maintenance
be cured within 35 days thereof and shall state the date and place
of a hearing thereon which shall be held within 15 days of the notice.
At such hearing, the governing body may modify the terms of the original
notice as to deficiencies and may give a reasonable extension of time
not to exceed 65 days within which they shall be cured. If the deficiencies
set forth in the original notice or in the modification thereof shall
not be cured within the prescribed time or any permitted extension
thereof, the governing body, in order to preserve the common open
space and maintain the same for a period of one year, may enter upon
and maintain such land. Said entry and maintenance shall not vest
in the public any rights to use the common open space except when
the same is voluntarily dedicated to the public by the owners and
accepted by the governing body. Before the expiration of said year,
the governing body shall, upon its initiative or upon the request
of the organization theretofore responsible for the maintenance of
the common open space, call a public hearing upon 15 days' written
notice to such organization, and the owners of the development shall
show cause why such maintenance by the Borough shall not, at the election
of the Borough, continue for a succeeding year. If the governing body
shall determine that such organization is ready and able to maintain
said common open space in reasonable condition, the Borough shall
cease to maintain said common open space at the end of said year.
If the governing body shall determine such organization is not ready
and able to maintain said common open space in a reasonable condition,
the Borough may, in its discretion, continue to maintain said common
open space during the next succeeding year, subject to its similar
hearing and determination in each year thereafter. The decision of
the governing body in any such case shall constitute a final administrative
decision subject to judicial review.
Costs of any maintenance by the Borough shall be assessed pro
rata against the properties within the development that have a right
of enjoyment of the common open space in accordance with assessed
value at the time of imposition of the lien and shall become a lien
and tax on said properties and be added to and be made a part of the
taxes to be levied and assessed thereon and enforced and collected
with interest by the same officers and in the same manner as other
taxes.
The municipal agency shall require that any organization chartered
for open space management established pursuant to this article shall
adopt certain binding rules and regulations or bylaws not subject
to change without prior approval from the municipal agency with respect
to ensuring the objectives and purposes of reasonable maintenance.
Said requirements of the municipal agency may vary as to particular
applications and the buildings, structures and uses proposed therein;
provided, however, that any such variations or requirements may not
be inconsistent with each other. The following information and/or
documents shall be submitted not later than 10 days following issuance
of the first certificate of occupancy but in advance of any conveyance
or transfer of title:
A. The time when the organization is created.
B. The form of organization, whether a corporation, partnership, trust
or other.
C. The liability of the organization for the insurance, taxes and maintenance
of all facilities.
D. The mandatory or automatic nature of membership in the organization
by residents or successors.
E. Provision for sharing of costs and assessments.
F. The capacity of the organization to administer common facilities
and preserve the benefits of the common open space.
G. Whether members of the organization are owners or tenants and any
distinctions between types of members, if any.
H. Recordable documents evidencing a reservation and/or restrictions
on areas allocated for common open space pursuant to the requirements
of approval pursuant to this article. Any such reservation or restriction
shall be binding on all successors in interest in the lands in question
and subject to the prior approval of the governing body.
Any organization organized pursuant to this article shall submit
a true copy of its charter and bylaws and a list of all of its officers,
trustees or any person, corporation, firm or association having a
vote or power to regulate the affairs of said organization. Said documents
shall be filed in the office of the Borough Clerk within 10 days of
their effective date.