Obetz City Zoning Code
CHAPTER 1159
Planned Districts
1159.01 PURPOSE AND INTENT.
(a) Planned districts shall include residential, commercial, industrial, and mixed use subdistricts: Planned Residential District (PRD), Planned Commercial District (PCD), Planned Industrial District (PID), and Planned Unit District (PUD).
(b) It is the intent of the Planned Districts to promote the progressive development of land and construction thereon and to encourage imaginative architectural design and layout, flexibility in building styles and types, and sensitivity to the natural environment.
(c) The Planned Districts are designed to guide development in an orderly, coordinated and comprehensive manner that preserves natural quality and beauty and provides supporting community facilities in the development of diverse, sound urban environments consistent with accepted land planning, landscape architecture practices and engineering principles. Such developments should:
(1) Provide a well-designed and connected open space and recreational system that includes pedestrian and bicycle areas, play areas, and scenic areas.
(2) Preserve and utilize natural topography and geologic features, scenic vistas, trees and other vegetation, while preventing disruption of normal drainage patterns.
(3) Provide a more efficient pattern of development that reduces investments in utility lines, streets, and similar infrastructure.
(4) Promotes a development pattern in harmony with the Municipal land use objectives and priorities.
(d) In order to accomplish the above purposes, the intent of the Planned Districts is to allow the applicant to lessen the development standards in some areas in exchange for an increase in development standards in another.
(e) The process for achieving the above purpose and intent is to require the submission and approval of a preliminary plan for the total proposed development and the submission and approval of a final development plan for all or any part of the area, defined in the preliminary plan, prior to obtaining a zoning certificate as part of the approval for the construction of any portion of the area. As part of the preliminary plan, the applicant must prepare and submit a development standards text that identifies any development standards that is less restrictive than the standards set forth in this chapter or other chapters of the Codified Ordinances. As part of the development standards text, the applicant must justify the modifications of these standards based on the fact that the proposed development goes beyond minimum requirements in other areas that will result in a superior development than if the standards set forth in this chapter and the other chapters of the Codified Ordinances has been followed. As part of the final development plan, the applicant must reaffirm use of the previously approved development standards text or submit as part of the final development plan a modified development standards text for approval by the Planning and Zoning Commission.
(Ord. 21-07. Passed 8-13-07.)
(Ord. 21-07. Passed 8-13-07.)
1159.02 PERMITTED USES.
Land and buildings in the Planned Districts (PRD, PCD, PID, and PUD) shall be used only for the following purposes as indicated under each specific subdistrict. The percentage of land devoted to a specific permitted or conditional use shall be negotiated with the Planning and Zoning Commission during preliminary development plan approval. In addition to preliminary and final development plan approval, all conditional uses listed shall require a conditional use permit from the Planning and Zoning Commission prior to issuance of a Certificate of Zoning Compliance.
(a) Planned Residential District (PRD).
(1) Permitted uses.
A. Single family, two family, and multi-family dwelling units.
B. Parks, playgrounds, and other public recreational facilities.
C. Accessory buildings and uses in association with a permitted single or multiple-unit residential structure.
(2) Conditional uses.
A. Child daycare.
B. Bed and breakfasts.
C. Family homes, group homes, nursing homes, senior housing, and senior independent housing.
D. Private recreational facilities including golf courses and other recreational uses.
E. Churches.
F. Schools.
G. Offices to handle rentals and maintenance of dwelling units within a multiple family development in which the office is located, as an accessory use.
(b) Planned Commercial District (PCD).
(1) Permitted uses. Permitted uses in the Neighborhood Commercial (NC), General Commercial District (GC), and Suburban Office District (SO).
(2) Conditional Uses. Conditional uses in the Neighborhood Commercial (NC), General Commercial District (GC), and Suburban Office and Institutional District (SO).
(c) Planned Industrial District (PID).
(1) Permitted uses. Permitted uses in the Restricted Industrial District (RI), Limited Industrial District, and Suburban Office and Institutional District (SO).
(2) Conditional uses. Conditional uses in the Restricted Industrial District (RI), Limited Industrial District, and Suburban Office and Institutional District (SO).
(d) Planned Unit District (PUD).
(1) Permitted uses. Permitted uses in the Planned Residential District and Planned Commercial District.
(2) Conditional uses. Conditional uses in the Planned Residential District and Planned Commercial District.
(Ord. 21-07. Passed 8-13-07.)
1159.03 DEVELOPMENT STANDARDS.
The following development standards shall be considered the minimal standards within the Planned Districts. These standards shall serve as base standards to be included and modified if desired as part of the development standards text and preliminary plan and further refined as part of the development plan. Each development text and plan will be negotiated by the Planning and Zoning Commission.
(a) Project Ownership. The planned development area shall be under contract for purchase by a single entity or owned by a single entity at the time of application. For the purposes of this subchapter a single entity includes the following: an individual, a husband and wife; corporation; partnership; or two or more property owners enjoined as a single entity.
(b) Minimum Lot Requirements. The minimum lot requirements of a parcel that can be zoned under the Planned Districts are the following:
PRD | PCD | PID | PUD | |
Minimum lot area (acres) | 2 | None | None | 5 |
Minimum frontage (feet) | 250 | 250 | 400 | 400 |
Maximum Lot Coverage (building and all impervious surfaces) | N/A | 80% | 80% | N/A |
(1) For each use the lot and building requirements of the appropriate district other than the Planned District shall apply unless superseded herein.
(2) Parking areas for non-residential development shall be no closer to the main structure(s) than ten (10) feet.
(3) Under PRD and PUD adjacent residential homes shall not have identical facades relative to style and color, and all residential building front yard setbacks shall meet the applicable district requirement and be staggered.
(4) The maximum building height in the PRD district shall be thirty-five (35) feet. In the PCD, PUD, and PID districts, the Planning and Zoning Commission may approve a maximum building height up to fifty (50) feet for industrial and office structures. The maximum height of a residential or commercial structure in a PCD, PUD, or PID district shall be thirty- five (35) feet.
(c) Site Development Standards.
(1) The applicable sections of the zoning and subdivision regulations shall apply unless superseded in the development text.
(2) Access points shall be kept to a minimum to reduce traffic congestion and mitigate potential conflict points. Vehicular and pedestrian conflict points shall also be minimized.
(3) Under PCD, PRD and PUD, the parking system shall be so designed as to discourage single large unbroken paved lots for off-street parking and shall encourage smaller defined parking areas within the total parking system. Such defined parking areas should be delineated and accented by landscaped areas. Parking aisles, whenever possible, shall be oriented perpendicular to the building fronts.
(4) The maximum PUD gross density shall be three (3) dwelling units per acre in the single family or two family areas. The maximum PRD and PUD gross density in the multi-family areas shall be six (6) dwelling units per acre. The Planning and Zoning Commission may approve higher densities based on the following criteria:
A. The development is directly adjacent to major thoroughfares and community services.
B. Building design and site design is of high quality and includes the integration of buildings and structures with natural materials.
C. The amount of open spaces in the development exceeds the minimum requirement or the open space provided has been improved and contains active recreational areas.
(5) Under PRD and PUD a minimum of twenty (20) percent of the net developable site shall be set aside as public open space. Such open space shall be used for such public purposes as a natural area, recreational area, or the site of a community or school facility.
(6) Under PCD and PUD all service and delivery shall be made to the rear of the structure(s) or use unless special design treatment or circumstances warrant an alternative, but only with the approval of the Planning and Zoning Commission. Landscaping and screening requirements of Chapter 1167 shall apply.
(7) Under PRD and PUD the location and arrangement of areas of various densities shall be so designed as to balance higher density areas adjacent to open space and arterial or collector roads.
(8) Under PRD and PUD private roads as a common easement may be used to provide access to lots and/or structures serving residential uses in accordance with the following:
A. The easement shall not be counted as required open space.
B. The easement does not serve an area larger than two (2) acres, except that such area will contain six (6) dwellings or less.
C. Approved as a part of the Subdivision Plat as the most appropriate form of access to the lots and/or structures.
(9) Under PRD and PUD off-street parking shall be provided in accordance with Chapter 1169, except residential parking for multi-family residential structures may be provided in group garages or parking lots within one hundred and fifty (150) feet of the dwellings served. All single family homes shall have a two car garage.
(10) Under PCD, PID and PUD, where appropriate whenever multiple structures are to be located on the site and the site abuts a collector or arterial street, access onto the collector or arterial shall be via interior local streets or marginal access (frontage) roads. All uses within the PCD, PID and PUD shall derive their access from the interior streets in the district, unless specific exemptions are made as a part of the approved Final Development Plan.
(11) Drainage and runoff from the proposed development shall not cause property damage. All drainage improvements shall be designed in conformance with the requirements of the Municipal Subdivision Regulations and shall be approved by the Municipal Engineer prior to Final Development Plan approval.
(12) Details regarding sanitary sewage collection and disposal and water supply techniques to be utilized shall be addressed in the Development Plan, together with letters of approval from the pertinent local, state and, if applicable, private agencies, and approved by the Municipal Engineer prior to Final Development Plan approval.
(13) Under PUD, PCD and PID no unscreened outside storage shall be permitted and no rubbish or debris of any kind shall be placed or permitted to accumulate on any portion of the parcel or lot so as to render any portion of the property unsanitary, unsightly or detrimental to the public health, safety or welfare.
(14) All utilities shall be placed underground.
(d) Conflict With Other Chapters. Whenever there is a conflict or difference between the provisions of Chapter 1159 and those of the other chapters of this Zoning Code, the more restrictive provisions shall prevail. Subjects not covered by this chapter shall be governed by the respective provisions found elsewhere in this Zoning Code.
(e) Utilities. The following regulations apply to the provision of utilities in planned districts.
(1) All planned developments shall have an adequate source of potable water. All water lines constructed within a planned development shall be at the financial responsibility of the owner or developer.
(2) The owner or developer of a planned development shall be financially responsible for the extension of the existing network of sanitary sewage lines to serve the planned development area. No construction of buildings within any segment of a planned conservation development shall be commenced until after the extension of sanitary sewage lines has been completed.
(3) The following utility equipment shall be provided, constructed and installed underground within a planned development: gas lines, sanitary and storm sewer lines, water lines, electrical lines, telephone lines, and cable television lines, where appropriate.
(4) All utility systems shall be located and designed in such a manner and method as to preserve the natural features of the land such as streams, rock outcropping, topsoil, trees and shrubs and the same shall be incorporated into and with the landscaping of said lands.
(5) Easements across lots or centered on rear or side lot lines shall be provided for utilities where necessary and shall be of adequate width to facilitate the proposed usage.
(6) All utility boxes shall be screened by a natural screen or a noncombustible material.
(f) Storm Water Management. Due to the size and nature of planned developments, all Final Development Plans must have a storm water management plan, approved by the Municipal Engineer, with the improvements constructed before a zoning certificate will be issued for construction of buildings.
(g) Walkways. All PRD and PUD developments shall be provided with concrete sidewalks on both sides of the street throughout the development. All other walkways shall be constructed of a suitable, dust free, hard surface material. Mulch or other similar surfaces may be permitted for walking trails upon approval of the Planning and Zoning Commission.
(h) Trees.
(1) The clearing of land shall be kept to a minimum to help preserve the existing natural conditions.
(2) No land shall be cleared of trees eight (8) to ten (10) feet away from the existing tree canopy. An exception to this requirement shall be granted in the case of those trees which should be removed due to malformation, disease, safety hazards, or to the general benefit of surrounding trees. The foregoing shall be considered as a guideline for preservation of the natural environment.
(i) Basements. All single family homes in the PRD and PUD zoning districts shall have basements unless superseded by Development Text approved by the Planning and Zoning Commission.
(Ord. 21-07. Passed 8-13-07.)
(Ord. 21-07. Passed 8-13-07.)
1159.04 PLAN CONTENTS AND REQUIREMENTS.
(a) As part of the request for rezoning to a Planned District, a Preliminary Plan must be submitted to the Planning and Zoning Commission along with the Development Standards Text. Council must approve the zoning change, preliminary plan, and development standards text. Following approval of the Preliminary Plan, a Final Development Plan must be approved by the Planning and Zoning Commission prior to issuance of a zoning certificate. The Final Development Plan must be in conformance with the adopted Preliminary Plan and Development Standards Text.
(1) Preliminary Plan. The Preliminary Plan is a conceptual plan submitted at the time of a request for rezoning generally describing the proposed uses for the site to be rezoned and their relationship with surrounding properties and uses. The Preliminary Plan should contain the following elements.
A. A topographic map of the site and adjacent property showing existing natural features including wooded areas and major trees. A description of how the proposed development has planned to utilize the existing site, identifying changes to the existing site grading and noting major trees that will be removed as a part of the proposed development.
B. A schematic plan showing the general development of the tract, location of existing and proposed structures, parking lot layout and other development features including the location of all out parcels.
C. An engineering feasibility statement in sufficient detail to indicate how the proposed development will be serviced with water, sanitary sewer and storm drainage facilities.
D. The proposed traffic circulation pattern showing public and private streets and other transportation facilities, including major pedestrian routes. The Planning and Zoning Commission may request a traffic study at the time a preliminary site plan is submitted or may defer the request until final site plan submittal.
E. A conceptual landscaping plan.
F. A proposed schedule or phasing of development of the site.
G. Evidence that the applicant has sufficient control over the land to accomplish proposed and required land improvements.
H. Any additional information required by the Planning and Zoning Commission necessary to determine that the proposed development meets the intent and purposes of the appropriate Planned District.
(2) Development Standards Text. A Development Standards Text shall be submitted as part of the Preliminary Plan and shall be narrative and graphics, as necessary, in order to detail the development standards to be applied to the development concept described in the Preliminary Plan. The Development Standards Text should clearly identify any standard that is less than the standards established by this chapter. These modifications shall be justified by fully stating what adjustments, amenities or other compensations are provided as part of the Preliminary Plan to offset the use of reduced standards and by demonstrating how the modified standards will result in the best possible development for the site. Unless specifically modified by the Development Standards Text, the standards established by this chapter shall apply to the proposed development.
(3) Final Development Plan. Following approval of the Preliminary Plan and prior to issuance of a Zoning Certificate, a Final Development Plan shall be submitted to the Planning and Zoning Commission for the part of the area defined in the Preliminary Plan. The Final Development Plan shall contain the following information and adhere to the Development Standards Text approved as part of the Preliminary Plan:
A. Site Survey. On a survey, show boundary information, existing and proposed development, existing and proposed topography, existing and proposed easements, rights-of-way and utilities.
B. Setbacks. The Site Plan shall indicate building, service areas, parking lot and signage setbacks including front yard, rear yard and side yard areas and shall be in accordance with the approved Development Standards Text.
C. Modifications of Development Standards Text. Any desired modifications of the Development Standards Text approved as part of the Preliminary Plan shall be so indicated in a modified Development Standards Text document.
D. Height Requirements. Maximum height requirements, including mechanical areas, parapets, etc. shall be made per the Development Standards Text requirements and shown on building front, rear and side elevation drawings.
E. Parking and Loading. All parking and loading spaces shall be shown including typically dimensions of parking stalls, aisles and loading spaces, size, number of spaces and general location shall also be governed by the Development Standards Text.
F. Waste and Refuse. Handling of waste and refuse materials shall be indicated and described by the Development Standards Text and shall include appropriate screening and type of containerization.
G. Circulation. All major circulation routes, including arterial, adjacent curb cuts, collector and local streets shall be indicated including rights-of-way, dimensions, pavement widths and intersection improvements. All driveways/curb cuts shall be indicated, including major aisle ways and service routes. Major pedestrian circulation routes shall also be indicated including dimensions of path and pedestrian crossings, etc. plus any attempts at separating vehicular and pedestrian/recreation movement.
H. Landscaping. As part of the Final Development Plan, proposed landscaping shall be shown including the general landscaping pattern and type of materials, mounding and fencing. Landscaping may vary in density, spacing and other treatment to reflect variations in topography, existing landscaping or adjacent land uses and conform to Chapter 1167. Landscape features shall be shown as well as planting dimensions, height, d.b.h. and type of plant materials per the Development Standards Text.
I. Signage and Graphics. All signage and graphics shall comply with the Development Standards Text. Letter and other graphic size, sign material, shape, color and illumination (internal only) shall be indicated. This includes dimensions of all ground and wall signage as well as distances from rights-of-way and intensity of illumination. Directional signage shall also be indicated.
J. Lighting. All exterior lighting fixtures shall be shown including parking lot lighting, street walkway or pedestrian lighting, walkway accent lighting and building accent lighting. Lighting intensity and installation height shall be indicated.
K. Accessory Structures, Decks, Patios and Fencing. All accessory structures, decks, patios and fences shall conform to the Development Standards Text and appropriate materials, heights, location and style indicated.
L. Architectural Treatment. As part of the Final Development Plan front, rear and side building elevations shall be shown in accordance with the Development Standards Text indicated building material, color and height. Color material samples shall also be made available for inspection.
(Ord. 21-07. Passed 8-13-07.)
1159.05 REVIEW BASIS.
(a) Preliminary Plan. The basis for the approval of the Preliminary Plan shall be:
(1) That the proposed development is consistent in all respects with the purpose, intent and applicable standards of the Zoning Code.
(2) That the proposed development is in conformity with appropriate comprehensive planning or portion thereof as it may apply.
(3) That the acceptability of setbacks, distances between buildings, yard space, suitability of open space systems, traffic accessibility and other elements having a bearing on the overall acceptability of the Development Plan shall contribute to the orderly development of land within the municipality.
(4) That any modifications or minimum development standards established by the Zoning Code are properly identified and adequately justified in the Development Standards Text as necessary to insure a higher quality development.
(5) That the proposed development is in conformity with any design or site planning guidelines adopted by the Planning and Zoning Commission.
(6) That the plan provides for the coordination and integration of individually designed buildings into one planned district.
(b) Development Plan. Basis for approval of a Final Development Plan shall be:
(1) That the plan is complete in all respects relative to the requirements set forth in subsection (a) hereof.
(2) That any modifications of the Development Standards Text approved as part of the Preliminary Plan support and enhance the purposes and intent of the Zoning Code, any applicable comprehensive planning program and any design or site planning guidelines adopted by the Planning and Zoning Commission.
(3) That all engineering issues have been resolved to the satisfaction of the appropriate municipal staff and that final approval of the Development Plan is subject to the acceptance of final engineering of all phases of the development.
(Ord. 21-07. Passed 8-13-07.)
1159.06 PROCEDURES FOR APPROVAL.
(a) Submission of Application for Preliminary Plan:
(1) Prior to filing an application for rezoning to a Planned District, the applicant shall meet with the Zoning Inspector, Economic Development Director, Administrator, and Municipal Engineer in a preapplication review meeting to discuss the requirements for a Preliminary Plan and Development Standards Text which are required as part of the rezoning request.
(2) The applicant shall submit the rezoning application along with twenty copies of the proposed Preliminary Plan and Development Standards Text in accordance with the submission schedule established by the Planning and Zoning Commission. In order to defray the cost of examination of the rezoning application and the Plan and Text and review by the Planning and Zoning Commission, the applicant shall pay a fee in accordance with the fee as stipulated by ordinance. Staff shall circulate the Preliminary Plan and other comments to appropriate departments in the municipality for review and comment.
(3) Once the applicant has submitted a completed application in accordance with the submission schedule, staff shall submit the application to the Planning and Zoning Commission for their review and action at the next regular meeting of Planning and Zoning Commission as specified in their submission schedule. It shall be the duty of the Zoning Inspector to review the Plan and determine whether it complies with the regulations of this chapter. Planning and Zoning Commission will forward a recommendation to Council.
(4) A Preliminary Plan shall be valid for five years after Council approval. Construction of any phase of the development must begin within this period or a new Preliminary Plan is required.
(b) Submission of Final Development Plan.
(1) Prior to filing for Final Development Plan Approval, the applicant shall meet with the Zoning Inspector, Administrator, Economic Development Director and Municipal Engineer to review the Final Development Plan relative to the previously approved Preliminary Plan and Development Standards Text as well as procedures for approval.
(2) The applicant shall submit an application to the municipality including the required number of copies of the proposed Development Plan, Development Standards Text modification if appropriate and any other required information in accordance with the submission schedule of the Planning and Zoning Commission. In order to defray the cost of examination of the materials and review by the Planning and Zoning Commission, the applicant shall pay a fee in accordance with the fee schedule as stipulated by ordinance.
(3) It shall be the duty of the Planning and Zoning Commission to review the plan and determine whether it complies with the regulations of this chapter. Such determination shall be made at the first regular meeting of the Planning and Zoning Commission in accordance with the submission and hearing schedule established by the Commission. If the Planning and Zoning Commission finds that the Final Development Plan complies in all respects with the regulations of this chapter and the previously approved Preliminary Plan and Development Standards Text, the Commission shall approve the plan.
(4) In the event that the Planning and Zoning Commission does not approve the plan, each applicant shall be notified in writing of the reason for disapproval or modification along with the decision of the Planning and Zoning Commission. Decisions of the Planning and Zoning Commission disapproving the plan are appealable to Council in accordance with the provisions of Chapter 1181.
(c) Conformance with the Final Development Plan. Development shall be in conformance with the Final Development Plan and construction site improvements must be commenced within two years of Planning and Zoning Commission or Council approval; otherwise, no development of the land shall take place until a new Final Development Plan is approved pursuant to this section.
(d) Modification of the Preliminary Development Plan. With the approval of the Planning and Zoning Commission, minor modifications of the approved Preliminary Development Plan may be made. Such modification shall not increase the overall density of the site or change the essential character of the approved plan. If the Planning and Zoning Commission determines that such proposed changes significantly alter the approved preliminary development plan, it is considered a major modification and a revised preliminary development plan must be resubmitted to Council for approval. Development of land shall not proceed prior to final approval of the revised Preliminary Development Plan. Any development undertaken without such final approval is in violation of this Zoning Code and an abatable nuisance.
(e) Variances from Development Standards. The Planning and Zoning Commission and/or Council may approve variances from the Development Standards of this Chapter as part of the Development Standards Text and Preliminary or Final Development Plan. These variances shall be consistent with the intent of the zoning district.
(Ord. 21-07. Passed 8-13-07.)
1159.07 OWNERSHIP OF COMMON OPEN SPACE.
Different ownership and management options apply to the permanently protected common open space created through the planned development process. The common open space shall remain undivided and may be owned and managed by a homeowners association, the Municipality, or a recognized land trust or conservation district (conservancy). A public land dedication, not exceeding ten (10) percent of the total parcel size, may be required by the Municipality to facilitate trail or pathway connections. A narrative describing ownership, use and maintenance responsibilities shall be submitted for all common and public improvements, utilities, and open spaces.
(a) Ownership Standards. Common open space within planned developments shall be owned, administered, and maintained by any of the following methods, either individually or in combination, and subject to approval by the Municipality.
(1) Offer of Dedication. The Municipality shall have the first offer of dedication of undivided common open space in the event said land is to be conveyed. Dedication shall take the form of a fee simple ownership. The Municipality may, but not be required to accept undivided common open space provided: 1) such land is accessible to all the residents of the Municipality; 2) there is no cost of acquisition other than incidental costs related to the transfer of ownership; 3) the Municipality agrees to maintain such lands; 4) the land is not potentially hazardous. Where the Municipality accepts dedication of common open space that contains improvements, the Municipality may require the posting of financial security to ensure structural integrity of improvements for a term not to exceed eighteen (18) months.
(2) Homeowners Association. The undivided common open space and associated facilities may be held in common ownership by a homeowners association. The association shall be formed and operated under the following provisions:
A. The developer shall provide a description of the association, including its bylaws and methods for maintaining the common open space.
B. The association shall be organized by the developer and shall be operated by the developer, before the sale of any lots within the development.
C. 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.
D. The association shall be responsible for maintenance of insurance and taxes on the undivided common open space, enforceable by liens placed by the Municipality on the association. The association may establish rules to ensure proper maintenance of property, including monetary liens on the homes and home sites of its members who fail to pay their association dues in a timely manner. Such liens may impose a penalty of interest charges.
E. The members of the association shall share equitably the costs of maintaining and developing, where appropriate, such undivided common open space. Shares shall be defined within the association bylaws.
F. In the event of transfer, within the methods here permitted, of undivided common open space land by the homeowners association, or the assumption of maintenance of undivided common open space land by the Municipality, notice of such pending action shall be given to all property owners within the development.
G. The association shall provide for adequate staff to administer common facilities and property and continually maintain the undivided common open space.
H. The lease shall be subject to the approval of the homeowners association board and any transfer or assignment of the lease shall be further subject to the approval of the board. Lease agreements shall be recorded with the Franklin County Recorders Office, whichever is applicable, and notification shall be provided to Council within thirty (30) days of action by the board.
I. The homeowners association may lease common open space lands to any other qualified person, or corporation, for operation and maintenance of common open space lands, but such a lease agreement shall provide:
1. That the residents of the development shall at all times have access to the common open space lands contained therein (except croplands during the growing season);
2. That the undivided common open space shall be maintained for purposes set forth in this chapter; and,
3. That the operation of common open space facilities may be for the benefit of the residents only, or may be open to all residents of the Municipality, at the election of the developer and/or homeowners association. In cases where public trails or paths are provided as linkage between developments or as a continuous link of common open space within the Municipality, all residents of the Municipality shall have access to such identified paths/walkways.
(3) Condominiums. The undivided common open space and associated facilities may be controlled through the use of condominium agreements, approved by the Municipality. Such agreements shall be in conformance with all applicable laws and regulations. All undivided common open space land shall be held as a "common element".
(4) Dedication of Easements. The Municipality may, but shall not be required to, accept easements for public use of any portion or portions of undivided common open space land, title of which is to remain in ownership by condominium or homeowners association, provided:
A. Such land is accessible to Municipal residents;
B. There is no cost of acquisition other than incidental transfer of ownership costs; and
C. A satisfactory maintenance agreement is reached between the developer, association and the Municipality.
(5) Transfer of Easements to a Private Conservation Organization. With the permission of the Municipality, an owner may transfer easements to a private, nonprofit organization, among whose purposes it is to conserve open space and/or natural resources, provided that:
A. The organization is acceptable to the Municipality, and is a bona fide conservation organization with perpetual existence;
B. The conveyance contains appropriate provisions for the proper reverser or retransfer in the event that organization becomes unwilling or unable to continue carrying out its function; and,
C. A maintenance agreement acceptable to Council is entered into by the developer and the organization.
1159.08 MAINTENANCE OF OPEN SPACE.
(a) The ultimate owner of the open space shall be responsible for raising all monies required for operations, maintenance, or physical improvements to the open space through annual dues, special assessments, etc. The owner shall be authorized under its bylaws to place liens on the property of residents who fall delinquent in payment of such dues, assessments, etc.
(b) In the event that the organization established to own and maintain common open space shall at any time after establishment of the planned development fail to maintain the common open space in reasonable order and condition in accordance with the Final Development Plan, the Zoning Inspector may serve written notice upon such organization or upon the property owner(s) and/or residents of the planned development setting forth the manner in which the organization has failed to maintain the common open space in reasonable condition. The notice shall include a demand that such deficiencies of maintenance be cured within thirty (30) days thereof, and shall state the date and place of a hearing thereon which shall be held within fourteen (14) days of the notice. At such hearing Council may modify the terms of the original notice as to the defeciencies and may give an extension of time within which they shall be cured. If the deficiencies set forth in the original notice or in the modifications thereof shall not be cured within said thirty (30) days or any extension thereof, Council, in order to preserve the taxable values of the properties within the planned development and to prevent the common open space from becoming a public nuisance, may enter upon said common open space and maintain the same for a period of one (1) year. Said entry and maintenance shall not vest in the public any rights to use the common open space. Before the expiration of said year, Council shall, upon its initiative or upon the request of the organization theretofore responsible for the maintenance of the common open space, call a public hearing upon notice to such organization, or to the residents of the planned development, to be held by Council, at which hearing such organization or the residents of the planned development shall show cause why such maintenance by Council shall not, at the election of Council, continue for a succeeding year. If Council determines such organization is ready and able to maintain said common open space in reasonable condition, Council shall cease to maintain said common open space at the end of said year. If Council shall determine such organization is not ready and able to maintain said common open space in a reasonable condition, Council may, in its discretion, continue to maintain said common open space during the next succeeding year and subject to a similar hearing and determination, in each year thereafter. The decision of Council in any such case shall constitute a final administrative decision subject to review as provided by law.
(c) The cost of such maintenance by the Municipality shall be assessed against the properties within the planned development that have a right of enjoyment of the common open space, and shall become a tax lien on said properties. The Municipality, at the time of entering upon said common open space for the purpose of maintenance, shall file a notice of such lien in the office of the Franklin County Recorder, upon the properties affected by such lien within the planned development.