(A)   Purposes and applicability. This section provides an optional process to reduce the minimum lot area and lot width if the applicant proves to the satisfaction of the Planning Commission that a development will fully comply with this section.
      (1)   Purposes of cluster option. To allow flexibility in the lot layout of single family detached houses to avoid severe soil erosion and sedimentation; avoid severely increased stormwater flows and speeds; steer development to those areas that are more physically suited for it; avoid construction of steep roads that are difficult, time-consuming, and expensive to maintain and snow plow; avoid increased use of steep roads and driveways that are dangerous to drive upon in snow and ice; conserve forested areas that are an important part of the ecological cycle, providing for groundwater recharge, air pollution reduction, wildlife habitats and renewable economic resources; reduce construction costs; preserve the scenic character of the area and protect the quality of creeks and lakes, which will help to promote tourism; and preserve lands as crop farming. To provide a process that is simpler than a PRD, and which offers the same types of improvement and submission requirements as a conventional subdivision.
      (2)   For areas regulated by the Zoning Ordinance, see also § 157.073.
      (3)   The term “cluster development” shall mean a development of single family detached dwellings and protected open space meeting the requirements of and approved under § 159.030 or 157.073. A cluster development shall only include single family detached dwellings, open space, their customary accessory uses, and uses specifically permitted by this section within the open space. A cluster development shall not include a mobile/ manufactured home park.
      (4)   A cluster development shall only be permitted on a lot or contiguous lots including a minimum of 5 acres in the same ownership, not including existing road rights-of-way but including the right-of-way of roads proposed within the tract. The land area shall be contiguous, except that portions of the tract may be separated only by existing or proposed roads or creeks.
      (5)   The cluster development shall be designed as a unified, coordinated residential development, and shall be approved within a development plan controlled by a single development entity. After final subdivision approval, a developer may sell individual lots to different builders or home buyers, provided that the developer or his/her successor remains responsible for making sure there is compliance with the approved development plan.
   (B)   Reduction of lot width and lot area. If approved as a cluster development, then the minimum lot area and minimum lot width of the areas as shown on the Land Classification Map may be reduced as stated in § 159.028, subject to provision of the required open space. In areas not categorized by the Land Classification Map, the minimum lot width and lot area provided by the applicable Zoning Ordinance shall apply.
   (C)   The applicant shall demonstrate to the Planning Commission that the cluster development would clearly serve a valid public purpose that would result in a development superior to a conventional development.
      (1)   The valid public purposes include but are not limited to the following:
         (a)   The permanent preservation of forests, steep slopes, wetlands, creek valleys, highly scenic areas or other sensitive natural features.
         (b)   The permanent preservation of a substantial area of land for crop farming, in a tract of size and configuration that allows for efficient agricultural use and that properly considers the issue of compatibility between the agricultural uses and homes.
         (c)   The dedication of public recreation land at a site deemed appropriate by the Planning Commission and suitable for active and/or passive recreation. Any such land shall also be approved by the body proposed to accept such land, such as the County Commissioners in the case of dedication to the county.
         (d)   The clustering of homes in a location that will be substantially buffered from nuisance-generating uses, such as an expressway or major arterial road.
      (2)   The applicant shall demonstrate that the proposed cluster development has been designed in full consideration of important natural features, including mature woodlands, creek valleys, scenic views, steep slopes and wetlands. At a minimum, the applicant shall establish that areas along perennial creeks shall be preserved in their natural state, except for landscaping, erosion control improvements, public recreation improvements and needed utility, road and driveway crossings. The natural features of the site shall be a major factor in determining the siting of dwelling units. The conservation of forest cover shall be maximized.
      (3)   Phasing. The development shall include a phasing system that shall be approved by the Planning Commission. The phases shall ensure that the requirements of this section would be met after the completion of any 1 phase, and that the development could properly function without the construction of additional phases.
   (D)   Methods of preserving open space.
      (1)   The method(s) to be used to own, preserve and maintain the protected open space shall be
determined prior to final subdivision approval and shall be acceptable to the Planning Commission. Any subsequent revisions in the method of ownership or maintenance or the use of the protected open space that is inconsistent with the approved submission shall be subject to re-approval by the Planning Commission. The revisions shall only be approved after a public hearing is held, with notice provided to owners of record of lots within the cluster development.
      (2)   Required open space shall be permanently preserved by 1 of the following methods:
         (a)   Dedication to a government agency or Board of Education, if authorized officials of such agency or board agree in writing to accept such dedication and to maintain the land as public open space in perpetuity.
         (b)   Dedication to a homeowners association, if each property deed legally requires each homeowner within the cluster development to fund the proper maintenance of the land and other necessary expenses, and provided the association is incorporated, follows written by-laws, and has the legal authority to limit uses of the open space and to enforce assessments upon homeowners. The developer shall not dedicate open space to a homeowners association until the association is incorporated and able to maintain the land. Until such time, the developer shall be responsible to maintain the land.
         (c)   Dedication to an incorporated and well-established nature conservation organization acceptable to the Planning Commission.
         (d)   Retention of land in private ownership on a lot or lots that each have a minimum acreage of 5 acres, provided the use(s) of the land are specified and comply with division (E)(1) of this section and a conservation easement is conveyed to the county to preserve the intended use(s). Open space retained for private ownership and use shall be referred to and identified on the plat as a resource parcel.
      (3)   The county shall not be obligated to maintain or accept dedication of any protected open space, unless the Board of Commissioners voluntarily accept such responsibility.
      (4)   Legal documents establishing the types of uses, method of ownership, funding of maintenance, and form of deed restrictions or conservation easements for the protected open space shall be provided for acceptance by the Planning Commission prior to final subdivision approval. The documents shall authorize remedies by owners of property within the cluster development if the open space is not maintained and preserved in accordance with written representations made to purchasers of property.
   (E)   Open space standards. Required protected open space shall meet all of the following requirements:
      (1)   Required open space shall be permanently protected by appropriate deed restrictions and/or conservation easements on each lot, to prevent additional subdivisions and to prevent the construction of new principal buildings and to prohibit any commercial use, other than buildings or uses specifically approved by the Planning Commission. Land approved as required open space shall only be used for the following:
         (a)   Non-commercial outdoor active or passive recreation;
         (b)   The preservation of natural features;
         (c)   Crop farming (which may include a Christmas tree farm), outdoor pasturing and grazing of animals;
         (d)   Horseriding areas, which may include accessory stables;
         (e)   Golf courses, not including miniature golf and not including lighting for nighttime use,
         (f)   Timbering as part of a long-range forest management plan prepared by a professional forester, and which utilizes Best Management Practices, and which is approved by the Planning Commission; or
         (g)   Other open space-oriented uses which the Planning Commission determines are compatible with this section.
         (h)   One single-family dwelling shall be permitted on a resource parcel in a cluster subdivision in the AR or RR land classification.
      (2)   See the definition of “open space, protected” in § 159.016 which limits the types of lands that can be used to meet the required minimum open space requirement.
      (3)   The applicant shall establish that the disturbance of natural slopes over 25%, wetlands and other important natural features within protected open space will be minimized.
         (a)   See provisions in subsection (1) regarding forestry.
         (b)   No construction of buildings shall occur on natural or man-made slopes of over 25%. The alteration of slopes with a natural grade of over 25% shall be held to an absolute minimum.
      (4)   Improvements to open space. The application shall include a detailed and legally binding (if approved) description of what improvements the applicant will make to any land intended to be publicly dedicated to make it suitable for its intended purpose.
         (a)   Examples of such improvements for areas intended for passive recreation include preservation and planting of trees, development of nature, bicycle or jogging trails, the stabilization of creek banks and the removal of undesirable vegetation.
         (b)   Examples of improvements for areas intended for active recreation include grading of land to create land suitable for free-play fields for youth.
      (5)   All proposed open spaces shall be cleared of construction debris, materials from illegal dumping and any rocks that were not naturally on the land, unless those rocks are incorporated into landscaping improvements.
      (6)   The applicant shall establish that all required open space would be suitable for its intended purposes as approved by the Planning Commission.
      (7)   Whenever possible, lots and open spaces shall be located to promote pedestrian and visual access to open spaces intended for community or public use.
      (8)   Protected common open space shall not be separated by an arterial road from the majority of the dwellings within a cluster development.
      (9)   All protected open space shall be within 1 or 2 contiguous areas, except as may be specifically permitted otherwise by the Planning Commission.
      (10)   If the Planning Commission approves the provision of protected open space in private ownership, the Commission may require that 10% of open space be a separate open space lot to provide appropriate recreation land for residents of the development.
   (F)   Yield plan. This section shall apply to a proposed cluster development in the R, SR, TR, TC, EC, and C Districts when required by § 159.028:
      (1)   Purpose. To make sure that the cluster development does not result in an excessive increase in density from the maximum that would otherwise be permitted.
      (2)   Yield plan. A yield plan shall be submitted as part of an application for a cluster development. The yield plan shall be a sketch plan drawn to scale that shows the number and location of lots that could reasonably be expected to be permitted under the conventional zoning regulations of the applicable district. The yield plan shall consider the impacts of regulations regarding steep slopes, floodplains, wetlands and similar matters. The yield plan shall consider the same areas of land as the proposed cluster development. For the purposes of the yield plan, an applicant may assume that the same flexibility in measuring lot width would apply to the conventional development as would apply to a cluster development.
      (3)   A cluster development shall not be permitted to include a greater total number of dwelling units than is determined to have been possible based upon the yield plan, unless a density bonus is specifically permitted in division (B). The yield plan shall be subject to acceptance by the Planning Commission.
   (G)   Public water and sewer. Within the R land classification, no extension of public water or public sewer services will be permitted as part of a cluster development and no private wastewater treatment plants (including package treatment plants) will be permitted.
(Ord. —, passed 6-24-1997; Am. Res. 2010-5, passed 5-25-2010) Penalty, see § 159.999