(2)   Where a minimum percentage of open space is required to be improved open space, that percentage shall be based on the gross site area of the proposed project, including all rights- of-way.

      (3)   The area of improved open space may also count toward the total percentage of open space for the entire project, which shall also be based on the gross site area of the proposed project, including all rights-of-way.

      (4)   Areas counted as improved open space: for the purposes of complying with this division, the following features shall be credited towards the improved open space requirements, if approved as such by City Council in review of the open space:

         A.   Land occupied by active recreational uses such as pools, ball fields, playgrounds, tennis courts, jogging trails and residential community centers used primarily for recreation purposes;

         B.   Formally planned and regularly maintained open areas that include arranged plantings, gardens, gazebos or similar structures, fountains, sculpture, and other forms of public art;

         C.   Squares, forecourts, plazas, parks, public art, sculpture or fountains or other water features designed in accordance with the standards in this division; and

         D.   Where such features provide a clear community benefit, City Council may credit plazas and sidewalk areas exceeding the minimum sidewalk width requirements that contain at least four of the following features towards the improved open space area requirements:

            1.   Seating elements;

            2.   Specialized or decorative paving features;

            3.   Pedestrian lighting beyond that required to illuminate public rights-of-way;

            4.   Arcades, canopies, awnings, or overhangs to shield pedestrians;

            5.   Street furnishings, including, but not limited to, planters, waste receptacles, bicycle racks, drinking fountains, or shelters for persons utilizing public transit; or

            6.   Community informational kiosks.

      (5)   Regulations for general open space.

         A.   Beyond any open space areas defined as improved open space, the open space may include fields, landscaped areas, natural areas and the like that are not specifically excluded from the calculation by this chapter (see division (a)(6) of this section). Such spaces shall still comply with all general requirements for open space as established in this chapter.

         B.   Stormwater management devices, including retention ponds, and other bio-retention devices, can be counted towards the overall open space requirement when such features are treated as a site amenity and to qualify, they shall support passive recreation uses by providing access, gentle slopes less than three-to-one (3:1), and pedestrian elements such as paths, benches and similar aspects.

      (6)   Areas and uses not counted as open space: the following areas shall not be counted toward compliance with open space requirements:

         A.   Private and public roads, and associated rights-of-way;

         B.   Public or private parking spaces, access ways, driveways and other vehicular use areas;

         C.   Required minimum spacing between buildings and required yard setbacks;

         D.   Land that is subject to pre-existing conservation easements or other similar protected open spaces;

         E.   Above-ground buildings, pipes, apparatus and other equipment for community or individual use, septic or sewage disposal systems;

         F.   Substations or public utility easements;

         G.   Dry stormwater detention basins or facilities; and

         H.   Leftover slivers of land that has no value for development, that is not part of a larger improved open space set aside, and is not a natural resource (e.g., river or stream corridor, large forest stand, wetland) that contributes to the quality of the overall project, as determined by Planning Commission and City Council.

      (1)   Areas preserved in their natural state as wetlands, woodlands, lakes or ponds, historic lands, environmentally sensitive areas, or similar conservation-oriented areas;

      (2)   Outdoor active or passive recreational uses for the use and/or enjoyment of the residents of the proposed development. Any restricted open space intended to be devoted to recreational activities shall be of a usable size and shape for the intended purposes as determined by the Planning Commission. Where deemed appropriate by the Planning Commission, recreation areas shall be provided with sufficient parking and appropriate access;

      (3)   Utilized for the raising of crops when authorized in a conservation easement or in the association’s covenants and restrictions; and

      (4)   Any other similar uses approved by the Planning Commission during the applicable review procedure.

      (1)   All areas of open space shall be accessible to residents or users of the development by providing at least ten feet of frontage on a public street.

      (2)   All areas of the open space shall have a minimum width of 50 feet with the exception of trails and sidewalks that may provide access to the required open space, in which case, those areas of sidewalks and trails may be as narrow as ten feet in width.

      (3)   The open space shall be located and designed to the satisfaction of the Planning Commission and shall be sufficiently aggregated to create large areas of planned open space.

      (4)   The open space shall conserve significant topographic and landscape natural features to the extent practicable.

      (5)   Any area within the open space that is disturbed during construction or otherwise not preserved in its natural state, shall be landscaped with vegetation that is compatible with the natural characteristics of the site.

      (6)   All open space required by this chapter, including any recreational facilities proposed to be constructed in such space, shall be clearly shown on all approved plans.

      (7)   Where open areas, trails, parks or other open space resources are planned or exist adjacent to development, the open space shall, to the maximum extent practicable, be located to adjoin, extend, and enlarge the presently existing trail, park, or other open area land.

      (8)   Provision of open space in multi-phase developments.

         A.   Development proposed in phases shall be considered as a single development for the purposes of applying the open space set-aside standards required in this chapter.

         B.   The open space set-aside for the entire project shall be reviewed and approved as part of the preliminary plat process.

         C.   Development shall not be phased solely as a method to avoid the minimum open space set-aside standards in this chapter.

         D.   In cases where less than 100% of the total amount of open space set-aside is provided within the first phase of a multi-phase development, the open space set aside required shall, at a minimum, be apportioned into each of the remaining development phases. At any point, the applicant may fulfill the open space set-aside requirements prior to completion of the development or subdivision.

(Ord. 21-161, passed 12-13-2021)

   (a)   Any further subdivision of the open space for uses other than those prescribed in this chapter and the approved RPD development plan or subdivision plat shall be prohibited.

   (b)   In all cases, the long-term control and protection of the open space shall be accomplished through the use of a conservation easement.

   (c)   The applicant may seek to dedicate the open space to the city; however, the city is not required to accept such dedication. If the open space is not dedicated to, and accepted by, the city, the long-term control and protection of the open space shall be accomplished through the use of a conservation easement in accordance with this section.

   (d)   Conservation easements.

      (1)   At the time when an applicant records the plat for the approved subdivision or submits for a zoning permit where no plat is required, a conservation easement shall be placed on all lands and private waters used to satisfy the open space requirements of this chapter. The conservation easement shall:

         A.   Run with the land, regardless of ownership;

         B.   Provide for protection of the land in perpetuity;

         C.   Be granted and deeded to the city, Lorain County, state, park district, a city approved land trust or other qualified organization approved by the Planning Commission and Law Director; and

         D.   Be solely for the purpose of ensuring the land remains undeveloped other than development of uses permitted by § 1230.03(b).

      (2)   While the city, Lorain County, state, park district, city approved land trust or other qualified organization may hold the conservation easement, the property itself shall still be owned by the original property owner, the developer (applicant of the subdivision) or a homeowners’ or property owners’ association. If it is to be owned by an association, the association’s documents shall be recorded with the subdivision plat and a copy submitted to the Code Administrator to be maintained as part of the city’s records.

      (3)   The conservation easement shall include information on how the property will be maintained by the property owner and shall also state that failure to maintain the property in accordance with the conservation easement agreements shall be considered a violation of this code. In addition, the holder of the easement may pursue any remedy provided by law or equity, including, but not limited to, the remedies in R.C. § 5301.70.

(Ord. 21-161, passed 12-13-2021)

   (a)   A homeowners’ association or property owners’ association shall be established to permanently maintain all open space and common areas if such areas are not transferred and accepted by the city, Lorain County, state, park district, city approved land trust or other qualified organization.

   (b)   All homeowners’ association or property owners’ association agreements shall be submitted to the Code Administrator as part of the site plan review, subdivision application review, or RPD review, whichever is applicable. No set of proposed covenants, articles of incorporation or by-laws of a homeowners association or property owners’ association shall permit the abrogation of any duties set forth in this section.

      (1)   All homeowners’ associations or property owners’ associations shall guarantee the maintenance of all open space and common areas within the boundaries of the development through the deed restrictions or covenants.

      (2)   Membership in the association shall be mandatory for all purchasers of lots in the development.

      (3)   The association shall be responsible for maintenance, control and insurance of all common areas, including required open space.

      (4)   In the event that the homeowners’ association or property owners’ association no longer maintains the common areas and open space in a neat and orderly manner, or if the homeowners’ association or property owners’ association goes defunct, the city may take over maintenance and assess a fee to cover the costs of such maintenance. The fee shall be assessed to each of the benefitting property owners within the subdivision.

      (5)   The association shall not authorize its dissolution or the sale, transfer or other disposal of any common area, including restricted open space, without:

         A.   An affirmative vote of 75% of its members;

         B.   Establishing a successor entity to take over said property pursuant to this code; and

         C.   The approval of the City Council.

      (6)   Whenever the association adopts an amendment to any approved agreements that pertain to maintenance obligations or access to common areas, the revisions shall be provided to the Code Administrator for confirmation that the amendment is in compliance with all applicable standards of this code and any conditions of approval that applied to the original development or subdivision.

      (7)   The association shall convey to the city and other appropriate governmental bodies, after proper notice, the right to enter to any common area for emergency purposes or in the event of nonperformance of maintenance or improvements affecting the public health, safety and welfare. Such governments shall have the right, after proper notice, to make improvements and perform maintenance functions. In addition, the city shall have the right to proceed against the association for reimbursements of said costs, including the right to file liens against individual condominium units, houses and vacant building lots.

(Ord. 21-161, passed 12-13-2021)

      (1)   This section is intended to impose an impact fee for the acquisition and improvement of public recreation facilities on the development of single-family dwelling subdivisions and multiple-family dwellings. In enacting this code, City Council acknowledges that the city is responsible for and will meet, through the use of general city revenues, the reasonable capital improvements and maintenance requirements of the city’s existing recreation facilities.

      (2)   The recreation impact fees authorized by this section will be used solely for the acquisition and improvement of the additional public recreation facilities required to meet the need for such facilities created by new development:

         A.   Such fees shall not exceed the cost of acquisition and improvement of those public recreation facilities the need for which is reasonably attributable to those developments that pay the fees; and

         B.   The fees shall be spent solely for the acquisition and improvement of additional public recreation facilities that substantially benefit those developments that pay the fees.

      (1)   In addition to any other fee or fees described in the code of ordinances of the city, persons who are seeking, or who have in the past received, approval from the Planning Commission of a plat as part of a major subdivision, or its predecessors, or which was subject to the subdivision provisions of the Ohio Revised Code, and persons seeking approval from the Building Inspector or Planning Commission for a multiple-family or attached single-family residential development in the city, shall pay to the Recreation Trust Fund a recreation impact fee as follows:

         A.   Five hundred thirty-five dollars for each lot in a subdivision upon which a single-family dwelling is to be constructed; and

         B.   Three hundred ninety dollars for each dwelling unit to be constructed in a multi-family dwelling.

      (2)   For developments subject to approval, or which have previously received approval, as a major subdivision, or its predecessors, or which was subject to the subdivision provisions of the Ohio Revised Code, such recreation impact fees shall be due and payable following approval of a plat, but prior to the issuance of a zoning permit, and no zoning permit shall be issued by the Building Department without submission or a written receipt from the Finance Director indicating that any applicable recreation impact fee has been paid.

      (3)   For multi-family dwellings subject to approval under § 1214.06: Site Plans, such recreation impact fees shall be due and payable following approval of a zoning permit, but prior to the issuance of a building permit, and no building permit shall be issued by the Building Department without submission of a written receipt from the Finance Director indicating that any applicable recreation impact fee has been paid.

      (4)   The amount of any applicable recreation impact fee due and payable under this section as a condition precedent to the issuance of a zoning permit under division (c)(3) of this section, or a building permit under this division (c)(4) of this section, shall be waived:

         A.   For any single-family dwelling unit for which a recreation impact fee assessed under this code has paid prior to the zoning permit or building permit application; or

         B.   For any multi-family dwelling unit for which a recreation impact fee assessed under this code has paid prior to the zoning permit or building permit application.

      (5)   It shall be the responsibility of the Finance Director to:

         A.   Credit all recreation impact fees received by the Finance Director to the Recreation Trust Fund, which the Director shall administer separately from the General Fund of the city, and to deposit funds received by the Recreation Trust Fund in one or more interest-bearing accounts in a bank or other savings institution authorized to receive deposits of city funds. Interest earned by each account shall be credited to that account and shall be used solely for the purposes specified for the Recreation Trust Fund; and

         B.   Maintain and keep accurate financial records for each account into which funds of the Recreation Trust Fund have been deposited, that show the source and disbursement of all revenues; that shall account for all moneys received; that shall ensure that the disbursement of funds from each acquisition and improvement of additional public recreation facilities as specified in the capital improvements plan, is recorded; and that shall provide an annual accounting for each account showing the source and amount of all funds collected and the projects that were funded.

      (6)   All funds currently in the Recreation Trust Fund and all funds collected pursuant to this section shall be used solely and exclusively for the acquisition and improvement of additional public recreation facilities as specified in the capital improvements plan and as authorized by the City Council.

      (7)   The city is hereby authorized to issue bonds, bond anticipation notes, revenue certificates or other obligations of indebtedness as may be provided by law in furtherance of the acquisition and improvement of additional public recreation facilities as specified in the capital improvements plan and as authorized by the City Council. The funds pledged towards the retirement of any such indebtedness may include recreation impact fees and any other city revenues that may be allocated by Council, provided that recreation impact fees paid pursuant to this section shall be restricted solely and exclusively to financing directly, or as a pledge against indebtedness, for the acquisition and improvement of additional public recreation facilities as specified in the capital improvements plan and as authorized by the City Council.

      (8)   Refunds of recreation impact fees paid to the Recreation Trust Fund shall be made under the following circumstances:

         A.   If a zoning permit for a lot in a subdivision upon which a single-family dwelling is to be constructed expires without commencement of construction, then the person who paid any applicable recreation impact fee required as a condition for the issuance of the zoning permit may request a refund of the fees paid. To obtain a refund, the applicant must submit a written request to the Planning Commission within 30 days of the expiration of the zoning permit. The Planning Commission shall, within 60 days of the receipt of a refund request, authorize the Finance Director to refund to the applicant, without interest, the impact fees paid, less 5% of the refund (to offset a portion of the costs of collection and refund), within ten days of receipt of such authorization.

         B.   If a building permit for a multi-family development expires without commencement of construction, then the person who paid any applicable recreation impact fee required as a condition for the issuance of the building permit may request a refund of the fees paid. To obtain a refund, the applicant must submit a written request to the Planning Commission within 30 days of the expiration of the building permit. The Planning Commission shall, within 60 days of the receipt of a refund request, authorize the Finance Director to refund to the applicant, without interest, the impact fees paid, less 5% of the fees paid to offset a portion of the costs of collection and refund, within ten days of receipt of such authorization.

         C.   If the principal amount, not including interest, of all funds paid into the Recreation Trust Fund from recreation impact fees is not expended or encumbered by the end of the calendar quarter immediately following six years from the date the recreation impact fee was paid, the then current owner of the land may apply to the Finance Director for refund of any amount not expended or encumbered, plus interest actually earned. Such application must be submitted to the Finance Director within 180 days of the expiration of the six-year period.

      (9)   The fee schedule contained in division (c) of this section, shall be reviewed by the Planning Commission at least once each two years.

(Ord. 21-161, passed 12-13-2021)