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(A) Where improved open space and recreation area are provided in the subdivision, such improvements shall be installed in accordance with the approved open space and recreation plan.
(B) Any lands dedicated for open space purposes shall contain appropriate covenants and deed restrictions approved by the County Attorney to ensure that:
(1) The open space area will not be further subdivided in the future;
(2) The use of the open space will continue in perpetuity for the purpose specified;
(3) Appropriate provisions are made for the maintenance of the open space; and
(4) Common undeveloped open space shall not be turned into a commercial enterprise admitting the general public at a fee.
(C) The type of ownership of land dedicated for open space purposes shall be selected by the owner, developer, or subdivider, subject to the approval of the agent. Type of ownership may include, but is not necessarily limited to, the following:
(1) The county, subject to acceptance by the Board of Supervisors;
(2) Other public jurisdictions or agencies, subject to their acceptance;
(3) Quasi-public organizations, subject to their acceptance;
(4) Homeowner, condominium, or cooperative associations or organizations; and
(5) Shared, undivided interest by all property owners in the subdivision.
(D) If the open space is owned and maintained by a homeowner or condominium association, the developer shall file a declaration of covenants and restrictions that will govern the association, to be submitted with the application for the preliminary approval. The provisions shall include, but are not necessarily limited to, the following:
(1) The homeowners’ association must be established before the homes are sold;
(2) Membership must be mandatory for each home buyer and any successive buyer;
(3) The open space restrictions must be permanent, not just for a period of years;
(4) The association must be responsible for liability insurance, local taxes, and the maintenance of recreational and other facilities;
(5) Homeowners must pay their pro rata share of the cost; the assessment levied by the association may become a lien on the property if allowed in the master deed establishing the homeowners’ association; and
(6) The association must be able to adjust the assessment to meet changed needs.
(E) Maintenance of open space areas includes the following.
(1) In the event that a nonpublic organization with the responsibility for the open space fails to maintain it in reasonable order and condition, the Board of Supervisors may serve written notice upon such organization or upon the owners of the development setting forth the manner in which the organization has failed to maintain the open space in reasonable condition, and said notice shall include a demand that such deficiencies of maintenance be remedied within 35 days thereof and shall state the date and place of a hearing thereon which shall be held within 15 days of the notice.
(2) At such hearing, the Board of Supervisors may modify the terms of the original notice as to deficiencies and may give a reasonable extension of time not to exceed 65 days within which they shall be remedied. If the deficiencies set forth in the original notice or in the modification thereof shall not be remedied within said 35 days or any permitted extension thereof, the county, in order to preserve the open space and maintain the same, may enter and maintain such land for a period of one year. Said entry and maintenance shall not vest in the public any rights to use the open space except when the same is voluntarily dedicated to the public by the owners. Before the expiration date of said year, the Board shall, upon its initiative or upon the request of the organization theretofore responsible for the maintenance of the open space, call a public hearing upon 15 days’ written notice to such organization and to the owners of the development, to be held by the Board, at which hearing such organization and the owners of the development shall show cause why such maintenance by the county shall not, at the election of the county, continue for a succeeding year. If the Board shall determine that such organization is ready and able to maintain said open space in reasonable condition, the county shall cease to maintain said open space at the end of said year. If the Board shall determine such organization is not ready and able to maintain said open space in a reasonable condition, the county may, in its discretion, continue to maintain said open space during the next succeeding year, subject to a similar hearing and determination, in each year thereafter. The decision of the Board of Supervisors or officer in any such case shall constitute a final administrative decision subject to judicial review.
(3) The cost of such maintenance by the county shall be assessed pro rata against the properties within the development that have a right of enjoyment of the open space in accordance with the homeowners’ agreement, or if maintenance is not assessed by the homeowners’ agreement then by the assessed value at the time of imposition of the lien and shall become a lien and tax on said properties and be added to and be a part of the taxes to be levied and assessed thereon, and shall be enforced and collected with interest by the same officers and in the same manner as other taxes.
(Ord. passed 8-10-1989) Penalty, see § 154.999