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 should the means established by the developer fail to provide the same.

All methods for use dedication and common area ownership and maintenance, and 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 Borough 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.

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:

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:

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.

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.

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.

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:

Notice. The Borough Council shall serve written notice on 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.

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.

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 Borough Council may modify the terms of the original notice as to the deficiencies and may extend the time for correction of the deficiencies.

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 Borough Council may enter upon the common area and maintain the same and/or correct the deficiencies. The Borough 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.

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 Borough Council that the proper steps have been effected to modify the terms of use dedication, operation and/or 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.

Appeal. Any party to the action of the Borough Council may appeal such action to court as provided for zoning appeals in the Pennsylvania Municipalities Planning Code, as amended.[1]

Public costs. The costs of the preservation of use dedication and the cost maintenance and operation of any open land conducted by the Borough in accord with this article, and 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 Borough Council shall, at the time of the notice in § 400-65A above, file the required notice of lien against the properties.