(A) Common open space ownership. At the time of development review, the city shall require dedication of common open space and may obtain such open space, if the city determines that a public purpose will be served by providing open space within the area of the city. Common open space shall remain in private ownership unless the City Council determines that it is in the best interest of the city to obtain the open space and make it available to the public.
(B) Ownership and maintenance of common improvements.
(1) All developments involving common open space area and other common improvements shall meet the requirements herein set forth, and no development application shall be approved until compliance with this section is established.
(2) The applicant or developer shall provide for and establish a non-profit organization or other legal entity under the laws of Minnesota for the ownership, care, and maintenance of common landscaped areas, recreational areas, private streets, parking lots, or other commonly owned facilities.
(3) 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.
(4) If the common areas are deeded to a homeowner's association, the proposed documents governing the association shall be filed with the Zoning Administrator. Such documents shall meet the following requirements:
(a) The homeowner's association must be established before any residences are sold;
(b) Membership in the association must be mandatory for each residence owner;
(c) Common area restrictions must be permanent and not for a period of years;
(d) The homeowner's association must be made responsible for liability insurance, taxes, and maintenance of recreational and other facilities;
(e) The association must have the power to levy assessments which can become a lien on individual premises for the purpose of paying the cost of operating and maintaining common facilities;
(f) The governing board of any such association shall consist of at least three members who shall be owners of property in the development.
(5) 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.
(6) 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 on 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, unless that land is dedicated to the city.
(7) In the event the organization established to own and maintain common open spaces, recreational areas, communally owned facilities, and private streets, or any successor organization shall at any time fail to maintain the common facilities in responsible order and condition in accordance with the approved plan, the City Council may cause written notice to be served upon such organization or upon the owners of property in the development setting forth the manner in which the common facilities have failed to be maintained in reasonable condition. Such notice shall include the demand that the deficiencies noted be cured within 30 days thereafter and shall state the date and place of a hearing to be held within 14 days of the notice. At the time of hearing, the City Council may modify the terms of the original notice as to deficiencies and may extend the time within which the same may be cured. If the deficiencies set forth in the original notice or modifications are not cured within the time set, the City Council, in order to preserve the taxable values of properties within the development and to prevent the common facilities from becoming a public nuisance, may enter upon such common facilities and maintain the same for a period of six months. Such entry and maintenance shall not vest in the public any right to use the common facilities not dedicated to public use. Before expiration of such six months, the City Council shall, upon its own initiative, or upon the written request of the organization theretofore responsible for maintenance, call a public hearing and give notice of such hearing to the organization responsible for maintenance or the property owners of the development. At such hearing, the organization responsible for maintenance and/or the residents of the development may show cause why maintenance by the city should not be continued for a succeeding six months. If the City Council determines that it is not necessary for the city to continue such maintenance, the city shall cease such maintenance at the time established by the City Council. Otherwise, the city shall continue maintenance for the next succeeding six months subject to a similar hearing and determination at the end of each six months thereafter. The cost of maintenance by the city shall be a lien against the common facilities of the development and the private properties within the development. The City Council shall have the right to make assessments against properties in the development on the same basis that the organization responsible for maintenance of the facilities could make such assessments. Any unpaid assessment shall be a lien against the property responsible for the same, enforceable the same as a mortgage against the property. The city may further foreclose its lien on the common facility by certifying the same to the County Treasurer for collection of general property taxes.
(Ord. 2023-02, passed 5-9-23)