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 Council with the advice of the Borough's
Solicitor. The provisions of the approved plan shall be incorporated
into a development agreement with the Borough with deed covenants
and restrictions or other legal document which will effect the plan
and which can be enforced by the Borough.
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 187, 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."
A.
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 Borough Council 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 Borough to effect the use dedication
and require operation and maintenance of common areas, if the means
established by the developer fail to provide the same.
B.
All methods for use dedication and common area ownership
and maintenance, 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 Council. 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.
C.
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 that:
(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.
D.
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 Borough to effect the use dedication and common area
ownership and maintenance standards of this article and this chapter.
(2)
The organization proposed is a bona fide, operating
and stable conservation organization with a perpetual existence, as
approved by the Borough Council.
(3)
The conveyance of title contains the necessary provisions
for proper retransfer or reversion if the organization is unable to
continue to execute the provisions of title.
(4)
A maintenance agreement between the developer, the
organization and the Borough is executed to the satisfaction of the
Council and its Solicitor.
E.
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 Borough, with provisions for reversion to
the Borough, 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.
F.
Deed or deeds of trust. The landowner may provide,
as approved by the Borough Council, 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.
G.
Conservation easements held by the Borough. In the
case of open lands and recreation lands, the Borough 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 Borough. 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.
H.
Fee simple and/or easement dedication to the Borough.
In the case of open lands or recreation lands, the Borough 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 that:
If the method established for the dedication
of use and operation and maintenance of common areas fails to do so
in reasonable order and condition in accord with the approved development
plan, the Borough Council shall have the right and authority to take
all necessary legal action to effect such use dedication, operation
and maintenance. The action of the Council shall be in accord with
the following:
A.
Notice. The Council shall serve written notice on
the 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 chapter. At such hearing,
the Council 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 Council
may enter upon the common area and maintain the same and/or correct
the deficiencies. The Council 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 Council
that the proper steps have been effected to modify the terms of use
dedication, operation and 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 Council may
appeal such action to court as provided for such appeals in the Pennsylvania
Municipalities Planning Code.
G.
Public costs. The costs of the preservation of use dedication and the cost of maintenance and operation of any open land conducted by the Borough in accord with this article, 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 Council shall, at the time of the notice in § 215-77A above, file the required notice of lien against the properties.
