(A) Ponds. Detention/retention ponds may be included as part of the open space area, as may land within easements for underground pipelines and high-tension power lines, provided that no more than 25% of all open space areas within the subdivision shall be used for these purposes. Waiver from this requirement may be requested at the time of primary or secondary plat application.
(B) Ownership. Open space areas shall be owned and managed by an owners' association, a recognized land trust or conservancy, or a public entity. Open space may not be owned by an individual property owner.
(1) Offer of dedication. Dedication of open space may be made to any public or private agency interested in accepting the responsibility for continued management. Dedication shall take the form of fee simple ownership. Such accepting entity may, but shall not be required to accept open space. Any entity accepting open space and its continued management may require the posting of financial surety to ensure structural integrity of said improvements as well as the functioning of said improvements for a term not to exceed three years from the date of acceptance of dedication. The amount of financial surety shall not exceed 20% of the actual cost of installation of said improvements.
(2) Owner's association. Any owners' association holding in common ownership. The undivided open space and associated facilities shall be formed and operated under the following minimum provisions:
(a) The subdivider shall provide a description of the association, including its bylaws, covenants, restrictions and methods for maintaining the open space.
(b) Membership in the association is mandatory for all purchasers of property therein and their successors. The conditions and timing of transferring control of the association from subdivider to owners shall be identified.
(c) The owners' association shall be responsible for maintenance of insurance and payment of taxes on undivided open space, enforceable by liens placed by the town or PPC on the owners' association. The owners' association may place liens on the improvements or lots of its members who fail to pay their association dues in a timely manner, if provided for in the covenants and restrictions.
(d) The members of the owners' association shall share equitably the costs of maintaining and developing such undivided open space.
(e) In the event of a proposed transfer, within the methods permitted in this chapter, of undivided open space land by the owners' association, or of the assumption of maintenance of the undivided open space land by a public or private agency, notice of such action shall be given to all property owners within the subdivision.
(f) The owners' association shall obtain adequate staff to administer common facilities and properly and continually maintain the undivided open space.
(g) Lease. The owners' association may lease undivided open space lands to any qualified person, or corporation, for operation and maintenance of open space lands, but such a lease or agreement shall provide:
1. That the residents or tenants of the subdivision shall at all times have access to the open space lands and facilities (except open space lands used for agricultural purposes);
2. That the undivided open space to be leased shall be maintained for the purposes set forth in this chapter; and
3. Any lease shall be subject to the approval of the board of the association and any transfer or assignment of the lease shall be further subject to the approval of the board of the association.
(3) Dedication of easements. A public agency may, but shall not be required to, accept easements for public use of any portion of undivided open space land and facilities, title of which is to remain in ownership by the owners' association provided that such land and facilities are available to the general public and that a satisfactory maintenance agreement is reached between the subdivider or owners' association and the public agency.
(4) Transfer of easements. An owners' association may transfer easements to a private, nonprofit organization, among whose purposes it is to conserve open space and natural resources provided that the conveyance contains appropriate provisions for proper reverter or retransfer in the event that the organization becomes unwilling or unable to continue to carry out its functions and that a maintenance agreement acceptable to the board of the association is entered into by the subdivider or owners' association and the organization.
(C) Maintenance. The owner of the open space shall be responsible for maintaining operation, maintenance and physical improvements to open space lands and facilities, through use of annual dues, special assessments or other financial capacity. A homeowners' association shall be authorized under its bylaws to place liens on the property of residents who fall delinquent in payment of such dues or assessments.
(D) Failure to maintain. Failure to adequately maintain the divided and undivided open space in reasonable order and condition in accordance with recorded covenants and restrictions, constitutes a violation of this chapter subject to any and all enforcement measures authorized by this chapter necessary to obtain compliance. In the event that the association or any successor organization shall, at any time after establishment of a subdivision containing open space, fail to maintain the divided or undivided open space in reasonable order and condition in accordance with recorded covenants and restrictions, the PPC may serve written notice upon the owner of record, setting forth the manner in which the owner of record has failed to maintain the open space. If no association is functioning, each property owner shall be individually and jointly liable for the assessed cost of maintenance.