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.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
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.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
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.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
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.