The requirements of this Article X 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.
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 Board of Supervisors with the recommendation of the Township
Solicitor. The provisions of the approved plan shall be incorporated
into a development agreement with the Township, deed covenants and
restrictions, or other legal document which will effect the plan and
which can be enforced by the Township.
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
153 (Subdivision and Land Development).
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.
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
Board of Supervisors that the chosen method(s) will preserve the common
area use rights established in accord with this article 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 Township to effect the use dedication and require operation
and maintenance of common areas, should the means established by the
developer fail to provide the same. All methods for use dedication
and common area ownership and maintenance, and 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 Board
of Supervisors. 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.
A. 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:
(1)
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.
(2)
Participation in the POA/CA is mandatory for all lot owners.
(3)
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.
(4)
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.
B. 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:
(1)
The deed contains the necessary covenants and restrictions in
favor of the Township to effect the use dedication and common area
ownership and maintenance standards of this article and this Zoning
Ordinance.
(2)
The organization proposed is a bona fide, operating and stable
conservation organization with a perpetual existence, as approved
by the Board of Supervisors.
(3)
The conveyance of title contains the necessary provisions for
proper retransfer or reversion should the organization be unable to
continue to execute the provisions of title.
(4)
A maintenance agreement between the developer, organization
and Township is executed to the satisfaction of the Board of Supervisors.
C. 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 such restrictions include a conservation
easement in favor of the Township, with provisions for reversion to
the Township, 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.
D. Deed or deeds of trust. The landowner may provide, as approved by
the Board of Supervisors, 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.
E. Conservation easements held by the Township. In the case of open
lands and recreation lands, the Township 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 Township.
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.
F. Fee simple and/or easement dedication to the Township. In the case
of open lands or recreation lands, the Township 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:
(1)
There is no consideration paid by the Township.
(2)
Such land is freely accessible to the public.
(3)
The Township agrees to and has access to maintain such lands.
Should the method established for the dedication of use and
operation and maintenance of common area fail to do so in reasonable
order and condition in accord with the approved development plan,
the Board of Supervisors shall have the right and authority to take
all necessary legal action to effect such use dedication, operation
and maintenance. The action of the Board of Supervisors shall be in
accord with the following:
A. Notice. The Board of Supervisors shall serve written notice on 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.
B. 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.
C. 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 Zoning chapter. At such hearing,
the Board of Supervisors may modify the terms of the original notice
as to the deficiencies and may extend the time for correction of the
deficiencies.
D. 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 Board of Supervisors
may enter upon the common area and maintain the same and/or correct
the deficiencies. The Board of Supervisors 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.
E. 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 Board of Supervisors
that the proper steps have been effected to modify the terms of use
dedication, operation and/or 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.
F. Appeal. Any party to the action of the Board of Supervisors may appeal
such action to court as provided for zoning appeals in the Pennsylvania
Municipalities Planning Code, as amended.
G. Public costs. The costs of the preservation of use dedication and the cost maintenance and operation of any open land conducted by the Township in accord with this article, and 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 Board of Supervisors shall, at the time of the notice in §
180-152A, file the required notice of lien against the properties.