The purposes of this article are:
A. To provide an opportunity for flexibility in lot designs
and building arrangement not afforded by conventional lot-by-lot development;
B. To provide for a more varied, innovative, and efficient
development pattern;
C. To preserve unique and sensitive landscapes and site
features by locating new dwelling sites in areas removed from such
features;
D. To protect scenic vistas from encroachment by development;
E. To retain and protect open space areas within residential
development;
F. To provide a means to attain the aims and objectives
of the West Brandywine Township Comprehensive Plan relative to orderly growth and the enhancement of environmental
resources.
G. To support the specific objectives of the West Brandywine
Township Open Space, Recreation and Environmental Resources Plan.
Subject to permanent conservation restrictions, open space lands in any subdivision may be owned by a homeowners' association, the Township, a land trust, another conservation organization recognized by the Township, or by a similar entity, or, where required by the Township as provided in §
200-182F, may be placed in private ownership.
A. Offer of dedication.
(1) The Township may, but shall not be required, to accept
dedication in the form of fee simple ownership of open space land
provided:
(a)
Such land is accessible to the residents of
the Township;
(b)
There is no cost of acquisition other than any
costs incidental to the transfer of ownership such as title insurance;
and
(c)
The Township agrees to and has access to maintain
such lands.
(2) Where the Township accepts dedication of open space
land that contains improvements, the Board of Supervisors may require
the posting of financial security to ensure structural integrity of
said improvements as well as the functioning of said improvements
for a term not to exceed 18 months from the date of acceptance of
dedication. The amount of financial security shall not exceed 15%
of the actual cost of installation of said improvements.
B. Homeowners' association. Open space lands and associated
facilities may be held in common ownership by a homeowners' association.
The association shall be formed and operated under the following provisions:
(1) The developer shall provide a description of the association
including its bylaws and methods for maintaining the open space.
(2) The association shall be organized by the developer
and operating with financial subsidization by the developer, before
the sale of any lots within the development.
(3) Membership in the association is mandatory for all
purchasers of homes therein and their successors. The conditions and
timing of transferring control of the association from developer to
homeowners shall be identified.
(4) The association shall be responsible for maintenance
and insurance on common open space land, enforceable by liens placed
by the homeowners' association. Maintenance obligations may be enforced
by the Township which may place liens to recover its costs. Any governmental
body with jurisdiction in the area where the development is located
may place liens on the owners of the open space to collect unpaid
taxes.
(5) The members of the association shall share equitably
the costs of maintaining and developing such common land. Shares shall
be defined within the association bylaws. Association dues shall be
structured to provide for both annual operating costs and to cover
projected long-range costs relating to the repair of any capital facilities
(which shall be deposited in a sinking fund reserved for just such
purposes).
(6) In the event of a proposed transfer, within the methods
here permitted, of common open space land by the homeowners' association,
or of the assumption of maintenance of such land by the Township,
notice of such action shall be given to all property owners within
the development.
(7) The association shall have or hire adequate staff
to administer common facilities and properly and continually maintain
the common open space land.
(8) The homeowners' association may lease open space lands
to any other qualified person, or corporation, for operation and maintenance
of such lands, but such a lease agreement shall provide:
(a)
That the residents of the development shall
at all times have access to the open space lands contained therein
(except that access to land that is actively farmed shall be limited
to times of the year with the fields are fallow);
(b)
That the common open space land to be leased
shall be maintained for the purposes set forth in this chapter; and
(c)
That the operation of open space facilities
may be for the benefit of the residents only, or may be open to the
residents of the Township, at the election of the developer and/or
homeowners' association, as the case may be.
(9) The lease shall be subject to the approval of the
Board and any transfer or assignment of the lease shall be further
subject to the approval of the Board. Lease agreements so entered
upon shall be recorded with the Recorder of Deeds of Chester County
within 30 days of their execution and a copy of the recorded lease
shall be filed with the Secretary of the Township.
C. Condominiums. Open space lands and associated facilities
may be held in common through the use of condominium agreements, approved
by the Board of Supervisors. Such agreement shall be in conformance
with the Uniform Condominium Act of 1980. All common open space land shall be held as "common element."
D. Dedication of easements. The Township may, but shall
not be required to, accept easements for public use of any portion
or portions of the open space, title of which is to remain in common
ownership by condominium or homeowners association, provided:
(1) Such land is accessible to Township residents;
(2) There is no costs of acquisition other than any costs
incidental to the transfer of ownership, such as title insurance;
and
(3) A satisfactory maintenance agreement is reached between
the developer, condominium or homeowners association and the Township.
E. Transfer of easements to a private conservation organization.
With the permission of the Township, an owner may transfer easements
to a private, nonprofit, organization recognized by the Township,
among whose purpose it is to conserve open space and/or natural resources,
provided that:
(1) The organization is acceptable to Board, and is a
bona fide conservation organization with perpetual existence;
(2) The conveyance contains appropriate provision for
proper reverter or retransfer in event that organization becomes unwilling
or unable to continue carrying out its functions; and
(3) A maintenance agreement acceptable to the Board is
entered into by the developer and the organization.
F. Private ownership of open space. All or portions of
the designated open space, where required by the Township, may be
included within or divided among one or more of the individual lots.
Regardless of ownership, where deemed appropriate, the Board of Supervisors
may require that responsibility for maintenance of open space be conferred
upon and/or divided among the owners of one or more individual lots.
All landscape improvements, plantings, accessways, and recreational facilities within designated open space areas shall be provided by the developer as applicable. A performance bond or other securities shall be required to cover costs of all installation of proposed improvements in the open space area. The performance bond or other security shall be in the same form and adhere to the same conditions as otherwise required for proposed improvements under §
167-19 of Chapter
167, Subdivision and Land Development, of the Code of the Township of West Brandywine. An appropriate portion of the performance bond or other security will be applied by the Township should the developer fail to install the planting or recreational facilities.