This Article
X shall apply to any development which involves the ownership and maintenance of conservation open space, open land, recreation land, and common facilities (referred to as "common area" in this article) as required by this chapter and Chapter
187, Subdivision and Land Development.
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."
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.