1165.08 PUBLIC USE OF LANDS.

   (a)    Allocation of Areas For Public Use; Considerations. In connection with the submission to the Planning and Zoning Commission of subdivision plats, due consideration shall be given by the owner thereof to the allocation of areas reasonably suitable for schools, playgrounds or park or recreational areas to be dedicated or deeded to public use or to be reserved by covenants in deeds to the sublots thereof for the common use of all property owners within the proposed subdivision.

   In determining such reasonable suitability, consideration shall be given to such factors as the topography of the area to be so allocated, the major physical characteristics of such area, the location thereof in relation to the remaining area of the subdivision, the shape of the area to be so allocated and other similar consideration relative to a determination of whether or not the area to be so allocated can be reasonably used for schools, playgrounds or park or recreation areas. If the Commission, applying the standards set forth in this section, finds that the area to be so allocated for schools, playgrounds or park and recreation areas is reasonably suitable for such uses, and if it further finds that the area to be so allocated is equal to or greater than the minimum area required by subsection (b) hereof to be dedicated or deeded to the City for public park or recreational uses, the requirements of subsection (b) hereof shall not be applicable to such subdivision and there shall be no requirement that land shall be dedicated or deeded to the City for public park or recreational uses as a condition precedent to the approval of a subdivision by the Commission.

   (b)    Mandatory Dedication of Area for Park and Recreation Uses. In the interests of public safety, health and welfare, to provide proper open spaces for circulation of light and air and to avoid future congestion of population detrimental to the public safety, health and welfare, no subdivision plat shall be approved by the Commission, except as provided in subsections (a), (c), (d) and (h) hereof, unless in addition to all other lawful requirements, after deducting the area of such subdivision to be dedicated or deeded for public street, sidewalk or utility purposes, eight percent (8%) of the balance of the area of such subdivision is dedicated or deeded to the City for public park or recreational uses, provided that the area to be so dedicated or deeded to the City for public park or recreational uses shall be reasonably suitable, in the judgment of the Commission, for use as a public park or recreational area. In determining such reasonable suitability, the Commission shall consider such factors as the topography of the area to be so dedicated or deeded, the major physical characteristics of such area, the location thereof in relation to the remaining area of the subdivision, the shape of the area to be so dedicated or deeded and other similar considerations as in the judgment of the Commission are relative to a determination of whether or not the area to be so dedicated or deeded can reasonably be used for public park or recreational purposes.

   (c)    Exceptions and Considerations. Notwithstanding the requirement of subsection (b) hereof, the Commission shall have authority, after public notice and hearing as provided in subsection (e) hereof, to determine that it would not be adverse to the interests of public safety, health and welfare to provide proper open spaces for circulation of light and air and the avoidance of future congestion of population detrimental to the public safety, health and welfare, to approve a subdivision plan wherein less than the minimum area required by subsection (b) hereof is dedicated or deeded to the City for public park or recreational uses when it is further determined by the Commission, after such public notice and hearing, that it would be unreasonable to require the minimum area as set forth in subsection (b) hereof to be so dedicated or deeded and that practical difficulties or unnecessary hardship would result from such requirement. In making such determination, the Commission shall consider such factors as the following:

      (l)    The aggregate area of the subdivision after deducting the area to be dedicated or deeded for public street, sidewalk or utility purposes;

      (2)    The topography of the subdivision;

      (3)    The major physical characteristics of the land within the area of the subdivision;

      (4)    The aggregate area of the subdivision, after deducting the area to be dedicated or deeded for public street, sidewalk or utility purposes, which can reasonably be developed for uses authorized under the Planning and Zoning Code;

      (5)    The uses which may be made of the proposed subdivision under the Planning and Zoning Code and the density of population which reasonably would result from such permitted uses;

      (6)    The proximity of existing public park or recreational areas with consideration given to whether or not such existing public park or recreational areas would reasonably satisfy the need for public park and recreational areas within the proposed subdivision;

      (7)    Proposed deed restrictions and setback lines;

      (8)    Other exceptional conditions as in the judgment of the Commission are relative to a reasonable determination of the area of land to be dedicated to the City for public park and recreational uses; and

      (9)    Whether or not the refusal to approve a subdivision plan with less than the minimum area required by subsection (b) hereof to be dedicated or deeded to the City for public park or recreational uses would deprive the owner of the subdivision of substantial property rights.

         If the Commission, following the procedure set forth in this subsection, approves the dedication or deeding of less than the minimum area required by subsection (b) hereof to the City for public park or recreational uses, then the allotter shall comply with the provisions of subsection (h) hereof for that percentage of land representing the difference between the minimum area required by subsection (b) hereof and that lesser area accepted by the Commission pursuant to this subsection.

   (d)   Public Notice of Hearings. Public notice as required by subsection (c) hereof shall mean a notice posted for fifteen days in the same manner as required by the Codified Ordinances for public notice of legislation and published one time in a newspaper of general circulation in the City. The notice shall set forth that a subdivision plat, stating the name thereof, has been submitted to the Commission, that the owner thereof has requested that it be approved by the Commission pursuant to subsection (c) hereof, although less than the minimum area required by subsection (b) is to be dedicated to the City for public park or recreational uses, and the place, date and time that a public hearing shall be held on the request. The notice shall be published at least ten days prior to the date of such hearing and posted so that fourteen full days elapse between the day the notice is posted and the date of the hearing.

   (e)    Grading and Seeding Lands Allocated For Public Use. In those cases where land is allocated to public use as provided in subsection (a) hereof or is to be dedicated or deeded to the City for public park or recreational uses pursuant to subsections (b) or (c) hereof, the owner of the proposed subdivision, prior to approval of the subdivision plat, shall grade such area and plant it with grass seed of such quality and character, and in such amount, as is reasonably suitable for park or recreational uses, or in lieu thereof, he may furnish a one hundred percent (100%) performance bond. The amount of such bond shall be determined in the manner provided by Section 1167.03(c), in the case of a subdivision improvement bond. The form of such bond and the security therefor shall be as provided in Sections 1167.03(a) and (b), respectively.

   (f)    Title Guaranty Required. In those cases where land is to be deeded or dedicated to public use as required by subsections (a), (b) or (c) hereof, other than land reserved by covenants in deeds to the sublots of a proposed subdivision for the common use of all property owners within the proposed subdivision, the proposed streets of such subdivision shall not be dedicated to public use until the owner of such proposed subdivision delivers a good and sufficient warranty deed conveying title in such deeded land to the City free and clear of all liens, encumbrances, taxes and assessments, both general and special, except zoning and building ordinances.

   Prior to the dedication to public use of the streets within such proposed subdivision, the deed shall be deposited with an escrow agent selected by the Director of Law under such instructions as the Director may deem proper to effectuate the purposes of this section. The deed shall be recorded by the Director upon the acceptance of such streets for dedication and the issuance of a title guaranty in the amount of the value of the land, which title guaranty shall show good title in the City free and clear of all liens, encumbrances, taxes and assessments, both general and special, except zoning and building ordinances of record. All escrow fees, the recording fees and the cost of the title guaranty shall be paid by the subdivider.

   (g)   Penalty. Whoever violates any provision of this section shall be fined not more than five hundred dollars ($500.00). Each succeeding day of continued violation, after notice thereof, shall constitute a separate offense.

   (h)    If the Commission finds that compliance with subsections (a) or (b) hereof by an allotter is inappropriate because of the location or character of the land available for the purposes set forth in this section, then the allotter shall pay to the City the lesser of: the value of the portion of the subdivision that would have been required to be allocated, computed as provided in subsection (b) hereof, such value to be based on sale prices of similar land in Cuyahoga County as determined by Council; or if the City will have acquired real estate for recreational purposes, a portion of the cost of acquiring that real estate as herein provided. Council shall determine the cost of acquisition of that real estate, which shall not include interest or other financing costs. The amount thus computed shall increase annually by an amount equal in percentage to the annual increase in the consumer price index for the Cleveland, Ohio, area until the acquisition cost of all real estate acquired for recreational purposes will have been liquidated through the payments herein provided for. The amount the allotter shall pay shall be computed by multiplying that acquisition cost by a fraction, the numerator of which shall be the area of the allotter's subdivision (less the amount to be dedicated for public street, sidewalk or utility purposes) multiplied by eight percent (8%) and the denominator of which shall be the area of all such real estate acquired by the City. No subdivision plat shall be approved or streets dedicated to public use until such funds shall have been paid to the City. All funds paid pursuant to this section shall be set aside and used for the purpose of acquisition of additional park or recreational land. Upon ordinance enacted by the affirmative vote of five members of Council, and any time that Council so determines it appropriate, such funds may be used instead for park site development.

(Ord. 23-1988. Approved by voters 11-8-88.)