The applicant shall give consideration to suitable and adequate sites for schools, parks, playgrounds, and other areas for public use or service so as to conform with the recommendations contained in the city’s comprehensive plan; park and open space plan; and other applicable plans. Any provision for schools, parks or other public facilities shall be indicated on the construction and final plat, and shall be subject to approval by the city council.
(2006 Code, sec. 70-101; Ordinance 02-09-549, sec. 4.1, adopted 9/3/02)
(a) 
Protection generally.
All creeks and drainage areas shall be preserved and protected in their natural condition wherever possible, unless significant storm drainage improvements are required by the city in these areas. All development adjacent to creeks and drainage areas shall be in accordance with the city’s TCSS manual, and with any other city policies or ordinances related to aesthetics or public access or enjoyment of creeks and waterways.
(b) 
Definitions and methodology for determining the floodway management area (FMA).
The definitions for “floodway” and “floodway fringe” shall correspond to those set forth by the Federal Emergency Management Agency (FEMA). For purposes of the National Flood Insurance Program, the concept of a floodway is used as a tool to assist the local community in the aspect of floodplain management. Under this concept, the area of the 100-year flood is divided into a floodway and floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment in order that the 100-year flood may be carried without substantial increases in flood heights as defined by FEMA. The area between the floodway and boundary of the 100-year flood is termed the floodway fringe. The floodway fringe is the area which can be used for development by means of fill according to FEMA and city engineering criteria. For the purposes of this chapter, the floodway management area (FMA) will correspond to the floodway, as defined by FEMA, or as may be modified pursuant to a flood study that is approved by FEMA.
(c) 
Areas where a floodway management area is required.
Maxwell Creek and its related tributaries and streams and all other drainage areas or regulated floodways as referenced on the applicable floodway and flood boundary map (flood insurance rate map, or FIRM) shall be included in the floodway management area. If FEMA does not specify a floodway zone in any of the creeks or their tributaries, it shall be the developer’s responsibility to establish and identify the floodway management area. The determination shall be made by a licensed professional engineer and approved by the city engineer. Where improvements to a drainage area are required by other ordinances of the city for the purpose of safety or other reasons related to drainage, those ordinances shall also be observed. The floodway management area is intended to apply to a creek or channel which is to remain open or in its natural condition unless otherwise approved by a two-thirds majority vote of the full city council. The creek shall remain in its natural state unless improvements are permitted or required by the city due to the pending development of properties adjacent to or upstream of the required improvements.
(d) 
Ownership and maintenance of floodway management area.
The area determined to be the floodway management area shall be designated on the construction plat. Approximate locations shall be shown on zoning change requests and concept plans - accurate locations of the floodway management area shall be established on the construction plat and prior to site construction. At the city’s option, the floodway management area shall be protected by one of the following methods:
(1) 
Dedicated to the city;
(2) 
Easement. Creeks or drainageways on tracts which have private maintenance provisions, other than single-family or two-family platted lots, can be designated as the floodway management areas by an easement to the city on the construction plat (with the appropriate plat language, as required by the city). Subdivisions with platted single-family or two-family lots may designate the floodway management area by easement provided there are adequate maintenance provisions (such as by a mandatory homeowners’ association), but no lots or portions of lots may be platted in the easement unless specifically allowed by the city. The area designated as floodway management area may be identified by a tract number; or
(3) 
Certain recreational uses normally associated with or adjacent to floodprone areas (no structures allowed in the floodway management area), such as golf courses or certain types of parks. The uses allowed shall be in conformance with the zoning ordinance set out in chapter 30 and approved by the planning and zoning commission and city council. Use of the floodway management area as public parkland shall also require approval by the city’s park board.
Prior to acceptance of any drainageway as a floodway management area by the city, the area shall be cleared of all debris and brush (except for mature trees) and placed in a maintainable state. Floodway management areas dedicated to the city shall be left in a natural state except those areas designated for active recreational purposes and unless storm drainage requirements do not permit this to occur.
(e) 
Design criteria.
The following design criteria shall be required for development adjacent to the floodway management area:
(1) 
Adequate access shall be provided to and along the floodway management area for public and/or private maintenance. An unobstructed area a minimum of 20 feet wide with a maximum 5:1 slope (five feet horizontal to one foot vertical), the length of the floodway shall be provided adjacent to or within the floodway management area. On the opposite side of the drainage area, an unobstructed area having a minimum width of five feet shall be provided.
(2) 
Lots in a single-family, PD single-family, or duplex residential zoning district shall not be platted within the floodway management area, and no more than ten percent of the linear length of the floodway management area (on each side) shall be allowed to have lots backing or siding onto it. If lots back or side onto a floodway management area, at least two reasonable points of access to the floodway management area, each a minimum of 20 feet in width, shall be provided. Streets, alleys and open-ended cul-de-sacs may qualify as access points if designed such that they are navigable by maintenance vehicles (e.g., alleys must be 20-foot width). All areas of the floodway management area shall be accessible from the access points and shall be visible from access points. Lots used for multifamily dwellings may be platted in the floodway management area if the floodway management area is identified as an easement and is maintained as open space for use by the residents, and provided that access to the floodway management area is possible by city maintenance vehicles, should that need arise. If the floodway management area is to be public parkland, then adequate public access and good public visibility shall also be provided to all portions of it.
(3) 
Public streets may be approved in the floodway management area by the planning and zoning commission and city council (if they conform to applicable engineering standards).
(4) 
Linear public streets may be required to be constructed adjacent to some (or all) portions of the floodway management area to allow access for maintenance or recreational opportunities, and/or to allow increased visibility into creek areas for public safety and security purposes.
(5) 
Alternate designs to facilitate equal or better access may be permitted if approved by the planning and zoning commission and city council.
(f) 
Drainage areas which have been altered and are not in a natural condition can be exempted from a floodway management area and this section at the discretion of the city council and upon recommendation by the planning and zoning commission.
(2006 Code, sec. 70-102; Ordinance 02-09-549, sec. 4.2, adopted 9/3/02)
(a) 
Applicability.
When a subdivision contains either common open space or other improvements which are not intended to be dedicated to the city for public use, such as private streets, a private recreation facility, landscaped entry features or other private amenities, a property owners’ or homeowners’ association agreement consistent with state and other appropriate laws must be submitted to and approved by the city manager (or designee) and the city attorney. The conditions, covenants and restrictions (CCRs) and the association documents, such as the articles of incorporation and association bylaws, shall be submitted to the city for review and approval along with the construction plat application, and shall be filed of record at the county prior to final plat approval in order to ensure that there is an entity in place for long-term maintenance of these improvements (also see section 28.03.001(c)(10)(E)). Said documents must, at a minimum, include provisions which allow the city to take over the maintenance of common property, including but not limited to private streets and private recreation facilities, using association funds, if such action becomes necessary due to nonperformance or inaction by the association or if the association goes defunct. Provisions shall also be included which would, in the latter instance, convey ownership of the private streets (if any) and all other common areas to the city, and which would allow the city to remove any improvements or amenities from the common areas and sell any buildable land area as residential lots, to recoup the city’s expenses for maintenance or demolition of the improvements. Any monies that remain after the city has recovered all of its expenses shall be retained for future maintenance or upgrading of the streets, common areas (if any remain), screening walls, or other improvements within the subdivision. These provisions are not intended to allow the city to profit in any way from taking over the association’s responsibilities or funds; they are only intended to allow the city to recoup its actual incurred expenses such that the general public, the taxpayers of the city, does not have to bear these costs.
(b) 
Membership.
A property owners’ or homeowners’ association shall be an incorporated nonprofit organization operating under recorded land agreements through which:
(1) 
Each lot owner within the described land area is automatically a mandatory member; and
(2) 
Each lot is automatically subject to a charge for a proportionate share of the expenses for the property owners’ or homeowners’ association’s activities, such as maintenance of common open spaces or private streets, or the provision and upkeep of common recreational facilities.
(c) 
Legal requirements.
In order to assure the establishment of a proper property owners’ or homeowners’ association, including its financing, and the rights and responsibilities of the property or home owners in relation to the use, management and ownership of common property, the subdivision plat, dedication documents, covenants, and other recorded legal agreements must:
(1) 
Legally create an automatic membership, nonprofit property owners’ or homeowners’ association;
(2) 
Place title to the common property in the property owners’ or homeowners’ association, or give definite assurance that it automatically will be so placed within a reasonable, definite time;
(3) 
Appropriately limit the uses of the common property;
(4) 
Give each lot owner the right to the use and enjoyment of the common property;
(5) 
Place responsibility for operation and maintenance of the common property in the property owners’ or homeowners’ association;
(6) 
Place an association charge on each lot in a manner which will both assure sufficient association funds and which will provide adequate safeguards for the lot owners against undesirable high charges;
(7) 
Give each lot owner voting rights in the association;
(8) 
Identify land area within the association’s jurisdiction including but not limited to the following:
(A) 
Property to be transferred to public agencies;
(B) 
The individual residential lots;
(C) 
The common properties to be transferred by the developer to the property owners’ or homeowners’ association; and
(D) 
Other parcels; and
(9) 
Any governmental authority or agency, including, but not limited to, the city and the county, their agents, and employees, shall have the right of immediate access to the common elements at all times if necessary for the preservation of public health, safety and welfare. Should the property owners’ or homeowners’ association fail to maintain the common elements to city specifications for an unreasonable time, not to exceed 90 days after written request to do so, then the city shall have the same right, power and authority to enforce the association’s rules and to levy assessments necessary to maintain the common elements. The city may elect to exercise the rights and powers of the property owners’ or homeowners’ association or its board, or to take any action required and levy any assessment that the property owners’ or homeowners’ association might have taken, either in the name of the property owners’ or homeowners’ association or otherwise, to cover the cost of maintenance (or the possible demolition, if such becomes necessary to preserve public safety or to ease maintenance burden) of any common elements.
(d) 
Protective covenants.
Protective covenants shall be developed which, among other things, shall make the property owners’ or homeowners’ association responsible for:
(1) 
The maintenance and operation of all common property;
(2) 
The enforcement of all other covenants;
(3) 
The administration of architectural controls (optional); and
(4) 
Certain specified exterior maintenance of exterior improvements of individual properties (optional).
The city is not responsible (i.e., has no jurisdiction) for enforcing protective covenants or deed restrictions.
(e) 
Dissolution of association.
The association may not be dissolved without the prior written consent of the city council.
(f) 
Amendment of maintenance and assessment documents.
No portion of the association documents pertaining to the maintenance of private streets and alleys, and assessments therefor, may be amended without the written consent of the city council.
(2006 Code, sec. 70-103; Ordinance 02-09-549, sec. 4.3, adopted 9/3/02; Ordinance adopting 2015 Code)
(a) 
Areas for public use.
(1) 
The applicant shall give consideration to suitable sites for parks, playgrounds and other areas for public use so as to conform with the recommendations of the city’s park and open space plan. Any provision for parks and public open space areas shall be indicated on the construction and final plat, and shall be subject to approval by the city’s park board and by the city council.
(2) 
No individual, partnership, firm, or corporation shall deepen, widen, fill, reroute or change the course or location of any existing ditch, channel, stream or drainageway, without first obtaining written permission of the city and any other agency having jurisdiction.
(b) 
Parkland dedication.
(1) 
Any person, firm, or corporation offering a construction or final plat for development of any area zoned and to be used for single-family, duplex, or multifamily residential purposes within the city shall include on such construction or final plat the dedication (to the city) of land for public park purposes, calculated at the rate of not less than one acre of parkland per 100 ultimate units of such residential subdivision, and the buildable area of public parks shall not be smaller than five acres in size, unless otherwise determined by the city’s park board and approved by the city council to be in keeping with the city’s adopted park and open space master plan. The location and size of public parks within the city shall be determined in all instances by the park board and approved by the city council. That determination shall be based upon existing circumstances at the time, and shall be in accordance with the park and open space plan adopted by the city.
(2) 
The construction and final subdivision plat shall clearly show the area proposed to be dedicated as parkland under the provisions of this section. The planning and zoning commission shall determine the number of persons per unit based upon data compiled by the city, from time to time, in the update of its park and open space plan, which shall be reviewed and adjusted by the city council, as necessary, to reflect current figures. The applicant has the duty to submit with the subdivision plat for a multifamily residential development information concerning the numbers of units, and should he fail to do so, the commission shall make an assumption of the highest density that would be allowed in such multifamily residential district for the purposes of calculating parkland requirements.
(3) 
In instances where parkland is unacceptable, unavailable or unsuitable for park purposes, and only if determined by the park board and approved by the city council, money in lieu of land shall be paid into a “park dedication fund” to be established by the city. Such fee in lieu of parkland dedication shall be in accordance with the city’s park dedication ordinance, Ordinance No. 99-01-448 [02-11-552], as amended.
(4) 
The park dedication fund will be administered by the city council to best benefit the development, provided that the establishment of a park site shall be within the discretion of the city council. The money paid by the applicant will be expended on such park site within ten years from the date of final plat approval. All sums deposited to the fund shall be accounted for by the city and expended for such purposes as land acquisition, construction of improvements, and purchase of equipment (at the city’s discretion) for a public park site that is located within the park service area in which the subdivision depositing the funds is located. If such funds are not so expended within ten years following final plat approval, the property owner shall be entitled to a refund of such funds, upon written request, less any amounts expended for such purposes.
(5) 
The dedicated land required hereby shall be well-drained, relatively level in areas that are proposed for active park uses, and shall be suitable for appropriate recreational and leisure activities such as hiking, bicycling, picnicking and wildlife observance. All parkland offered for dedication under this section shall meet the requirements for location and for physical land characteristics outlined in the park and open space plan. Areas having environmentally sensitive ecosystems, attractive views, topographical interest or unique natural features shall be preferred and encouraged for parkland dedication. Areas which are relatively featureless, barren of natural trees and vegetative cover, and which are not physically attractive in some other way, may not be typically acceptable. Drainage areas may be accepted if the channel is to essentially remain in its natural state, and if any proposed pathways, landscaping, irrigation systems, and other improvements are constructed in accordance with city standards and in keeping with the “semi-rural” atmosphere of the area.
(c) 
Public park access.
Parkland shall be easily accessible for the public and open to public view so as to benefit area residents, enhance the visual character of the city, protect public safety, and minimize conflicts with adjacent land uses. A proposed subdivision adjacent to a public park or open space area shall not be designed to restrict reasonable access or visibility into the park (for example, shall not have many lots backing to the parkland). Street connections between residential neighborhoods shall be provided, wherever possible, to provide reasonable access to parks and open space areas. Proposed access and public availability, both physical and visual, of parkland shall be reviewed and approved by the city’s park board and by the city council.
(d) 
Other parkland dedication requirements.
Unless otherwise provided herein, all requirements set forth in the city’s parkland dedication ordinance (Ordinance No. 99-01-448 [02-11-552]), as may be amended, shall apply. In the event that a provision of this chapter conflicts with a provision of Ordinance No. 99-01-448 [02-11-552], as amended, then the more stringent provision shall apply.
(2006 Code, sec. 70-104; Ordinance 02-09-549, sec. 4.4, adopted 9/3/02)