(a) Fee-in-lieu of Land Provision.
(1) Amount of fee-in-lieu. In the event that open space and recreational land designation is inappropriate or infeasible, the HCPC shall request the subdivider to pay a park fee in lieu of land provision. The per unit fee will be collected at the time final plat approval is requested and shall be based on the total number of units contained within the final plat as determined by using the following formula:
Fee-in-Lieu of = Land area that would X Fair market value land dedication otherwise be required to be provided as determined by subsection (b)(1) hereof. |
(2) Determination of fair market value. For the purposes of this resolution, fair market value shall be determined as follows:
A. Time for Determination. Fair market value shall equal the average value per acre of all land in each subdivision or development in its raw, undeveloped state, at the time of Final Plat filing, determined by application of one of the following procedures:
1. By agreement between the subdivider and the HCPC.
2. In the event the subdivider and the HCPC cannot agree, by determination of the HCPC on the basis of assessed value for property tax purposes of all land in the subdivision, modified to equal market value in accordance with current assessment practices, and divided by the total number of acres within the subdivision; or
3. In the event the subdivider objects to the valuation method set forth in subsection (2), then by a qualified independent appraiser approved by the HCPC. The fee for the appraiser will be paid by the subdivider.
(b) Land Provision and Dedication.
(1) Minimum amount of land. The minimum amount of land to be dedicated or provided by a subdivider as open or recreational space shall be determined in accordance with the following formula (gross site area and number of dwelling units is as shown on the preliminary plan):
Acres of land = (0.02 X gross site area) + 0.03 per dwelling to be decanted unit proposed or provided |
These minimums shall not be construed to prohibit the voluntary dedication or provision of lands by the subdivider in excess of the requirements established by these regulations.
(2) Characteristics of land. The HCPC will use the following criteria to judge whether land to be dedicated or provided is satisfactory for open space and recreational purposes. These criteria may be adjusted if the HCPC determines that doing so will be in the best public interest.
A. Unity. Land to be dedicated or provided must form a single parcel of land or else consist of a few large pieces connected by a trail, path, or walkway. Every attempt should be made to match open spaces and/or recreational land with similar land on adjoining lots or subdivisions.
B. Composition. Utility, drainage, or other easements that are typically required as part of the subdivision process shall not count toward the provision of open space. This includes all road right-of-way, all roadside ditches, and any retention or detention ponds unless designed as part of an overall common open space and approved by the HCPC.
C. Size, Shape, and Topography. The land shall be of such minimum dimensions and maximum slope as to be functionally usable for recreational purposes. Steep slopes, streams, lakes, jurisdictional wetlands, water courses, and flood plains may constitute a maximum of forty percent (40%) of such land.
D. Location. The land to be dedicated or provided shall be convenient to the dwelling units it is intended to serve. Due to the potential for noise generation, however, the land shall also be sited with sensitivity to surrounding development.
E. Access. Public access and maintenance to the land shall be provided from adjoining street frontage.
F. Preservation of Natural Beauty. Scenic natural features such as trees, plant life, watercourses, topography, and views, and any historic or archeologic locations shall be considered and preserved in the provision of open space, parks, and recreation areas.
(3) Open space ownership. The type of ownership of land dedicated or provided for open space purposes shall be selected by the owner, subdivider, or developer, subject to the approval of the HCPC and the CHPD. The type of ownership may include, but is not limited to the following:
A. The local government, subject to acceptance by the governing board of the local government.
B. Other public jurisdictions or agencies, subject to their acceptance.
C. Quasi-public organizations, subject to their acceptance.
D. Homeowner, condominium, or cooperative associations or organizations; or
E. Shares, undivided interest by all property owners in the subdivision.
Ownership shall be determined based on the type of open space to be provided. For example, perpetual conservation easements and significant passive open space such as linear parks shall be owned and maintained by the CHPD. Active recreation areas such as tot lots or ball fields shall be owned and maintained by a homeowners association or other responsible local entity.
(4) Homeowners Association. If the open space is owned and maintained by a homeowner or condominium association, the developer shall file with the application for preliminary approval a declaration of covenants and restrictions that will govern the association. The provisions shall include, but are not limited to, the following:
A. The homeowners association must be established before the lots are sold.
B. Membership must be mandatory for each home buyer and any successive home buyer.
C. The open space restrictions must be permanent, not just for a period of years.
D. The association must be responsible for liability insurance, local taxes, and the maintenance of recreational and other facilities.
E. Homeowners must pay their pro rata share of the cost, and the assessment levied by the association can become a lien on the property if allowed in the master deed establishing the homeowner's association; and
F. The association must be able to adjust the assessment to meet changed needs.
(5) Treatment of land. Following approval of a preliminary plat which designates land for open space and recreation, the existing vegetation (except growing commercial crops other than growing timber), topography, features of historic value, stream courses, soil, rock, strata, and other natural features of such dedicated or provided land shall not be altered or have their condition adversely affected in any way without the consent of HCPC.
(6) Improvement of land. There are two general types of land that meet the open space requirements of these regulations:
Developed Open Space: the HCPC may require the installation of recreational facilities, taking into consideration:
A. The character of the open space land;
B. The estimated age and the recreation needs of persons likely to reside in the development.
C. Proximity, nature, and excess capacity of existing recreation facilities; and
D. The cost of recreational facilities.
Undeveloped Open Space: As a general principle, undeveloped open space should be left in its natural state. The subdivider may make certain improvements such as the cutting of trails for walking or jogging, or the provision of picnic areas, etc. In addition, the HCPC may require a subdivider to make other improvements such as removing dead or diseased trees or grading or seeding.
The developer shall provide developed open space with recreation facilities when the developments equal or exceed 4 units per acre, or as required by the HCPC.
(7) Deed restrictions. Any lands designed for open space purposes shall contain appropriate covenants and deed restrictions approved by the City Law Director ensuring that:
A. The open space will not be further subdivided in the future;
B. The use of open space will continue in perpetuity for the purpose specified;
C. Appropriate provisions will be made for the maintenance of open space by the homeowners association. If in the opinion of the HCPC the open space is not properly maintained, then the City shall perform the necessary maintenance and the cost for same shall be charged to the homeowners association.
D. Common, undeveloped open space shall not be turned into a commercial enterprise admitting the general public at a fee or as part of a membership.
(8) Procedure for designation open space land. Dedication or provision of land shall be by general warranty deed conveying to the owner, whether it be the City of Heath, a homeowners association, or other approved owner, good and marketable title to the real estate described in such deed, free and clear of all liens and encumbrances. This deed shall be submitted to the County Recorder and shall be recorded simultaneously with the final plat map.
(9) Perpetual conservation easements. At the discretion of the City, with the advice of the HCPC, perpetual conservation easements may be used in lieu of fee simple acquisition where appropriate to preserve natural features. Under this alternative, more land may be necessary to accomplish this goal than would be required by simply using the formula for land dedication provided in subsection (b)(1) hereof.
(10) Open space designations for phased subdivisions. The City recognizes that for phased subdivisions, the land most suitable for open space and recreation may not be accessible in the initial stages of the development. If the open space to be designed will not be immediately accessible, the subdivider shall pay a fee-in-lieu of land dedication to the City as each phase of development is platted. This fee, calculated as described below, shall be based on the acreage and number of lots for the phase of the development to be platted. The fee will be placed in an escrow account and will be returned to the developer once the land to be provided or dedicated is fully accessible and acceptable.
If the open space will be accessible during the first phase of the development, the subdivider has the option of dedicating or providing the open space for the entire subdivision, or providing only that portion of the land required for that phase to be platted.
(Ord. 66-98. Passed 10-19-98.)