(A) Restrictions. Conservation areas shall be permanently restricted from future subdivision and development, unless through the county comprehensive planning process the purpose of the area has changed.
(B) Ownership options. The following methods may be used, either individually or in combination, to own conservation areas; however, conservation areas shall be initially offered for dedication to the municipality. Common facilities shall not be transferred to another entity except for transfer to another method of ownership permitted under this section, and then only when there is no change in the conservation areas, ratio of the overall development. Ownership methods shall conform to the following.
(1) Fee simple dedication to a unit of government. The unit of government may, but shall not be required to, accept any portion of the conservation areas, provided that:
(a) There is no cost of acquisition to the unit of government; and
(b) The unit of government agrees to and has access to maintain such areas.
(2) Condominium association. Conservation areas may be controlled through the use of condominium agreements. Such agreements shall be in accordance with I.C. 32-25 as amended. All conservation or portions thereof shall be held as “common element”.
(3) Homeowner’s association.
(a) Conservation in areas or portions thereof, may be held in common ownership by a homeowner’s association, subject to all of the provisions for homeowner’s associations set forth in state regulations.
(b) In addition, the following regulations shall be met.
1. The applicant shall provide the unit of government a description of the organization of the proposed association, including its by-laws, and all documents governing ownership, maintenance, and use restrictions for areas thereof.
2. The proposed association shall be established by the owner or applicant and shall be operating (with financial subsidization by the owner or applicant, if necessary) before the sale of any dwelling units in the development.
3. Membership in the association shall be automatic (mandatory) for all purchasers of dwelling units therein and their successors in title.
4. The association shall be responsible for maintenance and insurance of conservation areas or portions thereof.
5. The by-laws shall confer legal authority on the association to place a lien on the real property of any member who falls delinquent is his or her dues. Such dues shall be paid with the accrued interest before the lien may be lifted.
6. Written notice of any proposed transfer of conservation areas or portions thereof by the association or the assumption of maintenance for conservation areas or portions thereof must be given to all members of the association and to the local unit of government.
7. The association shall have adequate staff to administer, maintain and operate such conservation areas.
(4) Private conservation organization or conservancy district/unit of government. With permission of the Plan Commission, an owner may transfer either fee simple title of the conservation areas easements on the conservation areas to a private non-profit conservation organization or to the unit of government provided that:
(a) The conservation organization is acceptable to the unit of government and is a bona fide conservation organization intended to exist indefinitely;
(b) The conveyance contains appropriate provisions for proper reverter or retransfer in the event that the organization or the county becomes unwilling or unable to continue carrying out its functions;
(c) The conservation area is permanently restricted from future development through a conservation easement and the unit of government is given the ability to enforce these restrictions; and
(d) A maintenance agreement acceptable to the unit of government is established between the owner and the organization or the county.
(5) Dedication of easements to the unit of government.
(a) The Plan Commission/County Executive Board may, but shall not be required to, accept easements for public use of any portion of the conservation areas or facilities. In such cases, the facility remains in the ownership of the condominium association, homeowner’s association, or private conservation organization while the easements are held by the local unit of government.
(b) In addition, the following regulations shall apply.
1. There shall be no cost of acquisition to the local unit of government.
2. Any such easements for public use shall be accessible to the residents of the local unit of government.
3. A satisfactory maintenance agreement shall be reached between the owner and the local unit of government.
(6) Non-common private ownership. Up to 80% of the required conservation areas may be included within one or more large “conservancy lots” of at least ten acres provided the conservation area is permanently restricted from future development.
(C) Maintenance. Unless otherwise agreed to by the Plan Commission, the cost and responsibility of maintaining conservation areas, shall be borne by the property owner condominium association, homeowner’s association or conservation organization.
(1) The applicant shall, at the time of preliminary plan submission, provide a plan for maintenance of conservation areas, and operation of common facilities.
(a) The plan shall define ownership.
(b) The plan shall establish necessary regular and periodic operation and maintenance responsibilities for the various kinds of conservation areas (i.e., lawns, playing fields, meadow, pasture, cropland woodlands and the like).
(c) The plan shall estimate staffing needs, insurance requirements and associated costs, and define the means for funding the maintenance of the conservation areas and operation of any common facilities on an on-going basis. Such funding plan shall include the means for funding long-term capital improvements as well as regular yearly operating and maintenance costs.
(d) At the local unit of government (Plan Commission and/or Executive Board) discretion of the applicant may be required to escrow sufficient funds for the maintenance and operation costs of common facilities for up to one year.
(e) Any changes to the maintenance plan shall be approved by the Plan Commission after petition provides public notice and letters to interested parties.
(2) In the event that the organization established to maintain the conservation area and the common facilities, or any successor organization thereto, fails to maintain all or any portion thereof in reasonable order and condition, the local unit of government may assume responsibility for maintenance, in which case any escrow funds may be forfeited and any permits may be revoked or suspended.
(3) The local unit of government may enter the premises and take corrective action, including extended maintenance. The costs of such corrective action shall charged to the property owner, condominium association, homeowner’s association, conservation organization or individual property owners who make up a condominium or homeowner’s association and may include administrative costs and penalties. Such costs shall become a lien on said properties. Notice of such lien shall be filed by the local unit of government in the office of the County Auditor and the County Recorder.
(D) Maintenance endowment.
(1) Such maintenance activities may include mowing meadows, removing invasive vines, paying insurance premiums, paying local taxes and costs associated with active or passive recreation facilities. Spending from this Fund should be restricted to expenditure of interest so that the principal may be preserved. Assuming an annual average interest rate of 5%, the amount designated for the Endowment Fund shall be at least 20 times the estimated annual maintenance costs. Such estimate shall be prepared by an agency, firm or organization acceptable to the Plan Commission, and with experience in managing conservation land and recreational facilities.
(2) The Endowment Fund is not designed to pay for private road maintenance or shared utility system maintenance.
(3) The Endowment Fund may be supplemented by an annual assessment on each lot by the designated entity with ownership and maintenance responsibilities for the conservation areas and other common elements such as private roads and shared utility lines.
(4) Because additional dwellings, beyond the maximum that would ordinarily be permitted, may reasonably be considered to be net of development costs and represent true profit, 25% of the net selling price of the endowment lots shall be donated by the applicant to the Endowment Fund for the conservation lands in the subdivision. This Fund shall be transferred by the developer to the designated entity with ownership and maintenance responsibilities (such as a homeowner’s association, a land trust, condominium association or unit of local government) for the conservation areas at the time the designated entity is created.
(5) When estimating the projected maintenance costs of the conservation areas, it is not necessary to include conservation land that is not accessible by the subdivision residents for their common enjoyment. Such lands would typically include areas designated on the final plat for future agricultural, horticultural, silvicultural or equestrian uses, which may be leased or sold to another party for those express purposes, and which are protected from future development by permanent conservation easement. In such cases, the density bonus may be adjusted proportionately to reflect only the acreage that is accessible to residents for their passive or active recreation. In most cases, maintenance efforts will be focused on primary conservation areas and buffer areas.
(Ord. 1999-4-19, passed 4-19-1999)