The regulations set forth in this part shall apply to the following features in all residential developments where such features are proposed to be dedicated or conveyed for public use or are to be held in common ownership by the persons residing in the development:

(1)

All lands in common open space, not a part of individual lots, designed for the mutual benefit of a group of persons residing in the development, where such lands are not to be dedicated or conveyed for public use, whether or not such lands are required by the provisions of this article;

(2)

All private streets, driveways, parking bays, uses, facilities, and buildings or portions thereof, as may be provided for the common use, benefit and/or enjoyment of the occupants of the development, whether or not such improvements are required by the provisions of this article;

(3)

Where a condominium development is proposed, such shall be established and regulated in strict accordance with the provisions of the Condominium Laws of Virginia;

(4)

All lands to be deeded or conveyed for public use.

(Ord. of 1-13-2010(3))

All lands and improvements set forth in subsections 106-601(1), (2), and (3) above shall be established and maintained in accordance with the following requirements:

(1)

The applicant or developer shall provide for and establish a nonprofit organization or other legal entity under the Laws of Virginia for the ownership, care and maintenance of all such lands and improvements.

(2)

Such organization shall be created by covenants and restrictions running with the land and shall be composed of all persons having ownership within the development. Such organization shall be responsible for the perpetuation, maintenance, and function of all common lands, uses and facilities.

(3)

All lands and improvements shall be described and identified as to location, size, use and control in a restrictive covenant, and such covenant shall set forth the method of assessment for the maintenance of such land. These restrictive covenants shall be written so as to run with the land and be in full force and effect for a period of not less than 20 years, and shall be automatically extended for successive periods of 20 years unless terminated in a manner set forth hereinafter. These covenants shall become part of the deed to each lot or parcel within the development.

(4)

Such restrictive covenant and organization shall continue in effect so as to control the availability of the facilities and land thereby provided, to maintain the land and facilities for their intended function, and to protect the development from additional and unplanned densities of use. Such organization shall not be dissolved nor shall such organization dispose of any common open space, by sale or otherwise, except to an organization conceived and organized to own and maintain the common open space, without first offering to dedicate the same to the county or other appropriate governmental agency.

(5)

No lands in common open space shall be denuded, defaced or otherwise disturbed in any manner at any time without the approval of the administrator. However, routine maintenance of common open space limited to the removal of dead, diseased, dying or hazardous trees or shrubbery; removal and replacement of dead landscaping and screening materials; installation of supplemental plantings; removal of noxious vegetation such as poison ivy or greenbrier; lawn care and maintenance; or repair and replacement of picnic and play equipment; or similar routine maintenance shall be permitted without approval of the Administrator; provided such maintenance is allowed under any applicable proffered conditions, applicable conditions of special permits or special exceptions or other applicable laws and ordinances and further provided that such common open space does not contain areas used to comply with best management practices such as floodplains and conservation easements.

(6)

If the administrator shall determine that the public interest requires assurance as to adequate maintenance of common open space areas and improvements, the administrator may require that the covenants creating such organization shall provide that in the event the organization established to own and maintain such common open space/improvements, or any successor organization, shall at any time after establishment of the development fail to maintain the common open space/improvements in reasonable order and condition in accordance with the approved plans, the county may serve notice in writing upon such organization or upon the residents of the development setting forth the manner in which the organization has failed to maintain the common open space/improvements in reasonable condition, and said notice shall contain a demand that such deficiencies of maintenance be cured within 30 days thereof, and shall state the date and place of a public hearing thereon which shall be held within 20 days of the notice.

(7)

At such hearing the county may modify the terms of the original notice as to the deficiencies and may grant an extension of time within which they shall be cured.

(8)

If the deficiencies set forth in the original notice or in the modifications thereof shall not be cured within said 30 days or any extension thereof, the county, in order to preserve the taxable values of the properties within the development and to prevent the common open space/improvements from becoming a public nuisance, may enter upon said common open space and maintain the same for one year.

(9)

Said entry and maintenance shall not vest in the public any rights to use the common open space/improvements except when the same is voluntarily dedicated to the public by the owners.

(10)

Before the expiration of said one-year period, the county shall, upon its initiative or upon the request of the organization theretofore responsible for the maintenance of the common open space/improvements, call a public hearing upon notice in writing to such organization or to the residents of such development, to be held by the board, at which hearing the organization shall show cause why such maintenance by the county shall not, at the election of the board, continue for a succeeding one-year period.

(11)

If the board shall determine that such organization is ready and able to maintain the common open space/improvements in reasonable condition, the county shall cease to maintain the common open space/improvements at the end of said one-year period.

(12)

If the board shall determine that such organization is not ready and able to maintain the common open space/improvements in a reasonable condition, the county may, in its discretion, continue to maintain the common open space/improvements during the next succeeding year, and subject to a similar hearing and determination in each year thereafter.

(13)

The covenants creating such organization shall further provide that the cost of such maintenance by the county shall be assessed ratably against the properties within the development that have a right of enjoyment of the common open space/improvements, and shall become a charge on said properties, and such charge shall be paid by the owners of said properties within 30 days after receipt of a statement therefor.

(14)

Notwithstanding the above provisions of this section, an adjacent development may join the organization for purposes of utilizing the open space and improvements thereon pursuant to section 1-404 [106-604].

(Ord. of 1-13-2010(3))

(a)

Prior to the dedication or conveyance of those features described in sections 106-601 and 106-602 above, the following documents shall be submitted to and approved by the county:

(1)

The articles of incorporation or other organizational documentation for the nonprofit organization.

(2)

The bylaws of the nonprofit organization.

(3)

The covenants or restrictions related to the use of common property, including the system and amounts of assessments for perpetuation and maintenance.

(4)

A fiscal program for a minimum of ten years, including adequate reserve funds for the maintenance and care of all lands, streets, facilities, and uses under the purview of the nonprofit organization.

(5)

A document granting the right of entry upon such common property to the county law enforcement officers, rescue squad personnel, and the fire fighting personnel while in the pursuit of their duties; and, in the case of private streets and common driveways, permitting the enforcement of cleared emergency vehicle access.

(6)

A complete listing of all land, buildings, equipment, facilities, and other holdings of the nonprofit organization, as such is proposed, and a complete description of each.

(7)

A recommended time schedule for the maintenance of major facilities, including streets, street signs, pools, sidewalks, parking areas and buildings.

(8)

A copy of the proposed notice that will be given to prospective buyers regarding the organization, assessments and fiscal program.

(9)

A copy of the deed of conveyance and a title certificate or, at the discretion of the administrator, a commitment for a policy of title insurance issued by an insurance company authorized to do business in the Commonwealth of Virginia, assuring unencumbered title for all lands proposed to be conveyed to the county, other appropriate governmental agency, or other organization, including the nonprofit organization.

(b)

The documents set forth in subsection (a) shall be reviewed and approved by the administrator and the county attorney, and such approval shall be obtained before any final plat is recorded or final site plan is approved. Such documents, once approved, shall become part of the recorded subdivision plat or approved site plan.

(Ord. of 1-13-2010(3))

Except as provided for in subsection 106-602(8) above, the county shall not be responsible for the maintenance of any of the common open space and common improvements required by this article. Where the county becomes the owner of such open space and improvements, under the provisions of subsection 106-602(4) above, there shall accrue to the county or other appropriate governmental agency no responsibility except to the general public of the entire county.

(Ord. of 1-13-2010(3))