(a) Open Space Requirement for Residential Development. This section applies to all residential developments in the City unless provided otherwise in this Code.
(1) The City's goal is to provide usable parkland or recreational areas at an appropriate mix in order to meet the needs of City residents. In furtherance of this goal, upon the submission of a preliminary plat, concept plan or final development plan for a proposed residential subdivision/development, the applicant shall reserve on said preliminary plat and/or plan, areas reserved as open parkland or recreational space for use and enjoyment by residents of the City. The applicant shall reserve a minimum of twelve percent (12%) of the gross land to be developed including, but not limited to, all areas identified in subsection (a)(2), to meet the City's open space requirement. Developments within a Planned Unit Development shall be governed by Section 1268.03(b) for open space requirements.
(2) The following areas shall not count toward the minimum open space requirements contained herein:
A. Private and public roads, and associated rights-of-way;
B. Public or private parking areas, access ways, and driveways related to any residential use;
C. Required setbacks between buildings and parking areas, or required setbacks between buildings and streets;
D. Private yards;
E. Above-ground buildings, pipes, apparatus, and other equipment for community or individual septic or sewage disposal systems; or
F. Dry stormwater detention basins or facilities.
(3) The reserved land can include areas that are incorporated into the developer's overall plan for aesthetic purposes, woodlands, natural and preserved lakes or ponds, tree stands or areas reserved as green space in the plat or plan submitted, unless excluded in subsection (a)(2) above.
(4) In determining whether the land proposed by the developer is suitable to meet the parkland and recreation requirements herein, the characteristics stated in subsections (c)(3)A. to G. below shall be considered by the Planning Commission.
(5) All required open parkland or recreational space reserved hereunder shall be owned by either:
A. The City, subject to acceptance by City Council; or
B. Upon approval by City Council; held jointly or in common by the owners of the building lots with maintenance provided through a homeowners' association or similar association. If the open space is to be owned jointly or in common by a homeowners' association, the open space shall be protected through the establishment of a conservation easement as outlined in subsection (b) below. Such easement, along with any deed restrictions or covenants of the homeowners' association, shall be recorded with the Butler County Recorder's Office.
(b) Conservation Easement.
(1) Should the required open parkland or recreational space reserved hereunder be held jointly or in common by the owners of the building lots as described in subsection (a)(5)B. above, at the time when an applicant records the plat for the approved residential development as a subdivision, a conservation easement shall be placed on all lands and private waters used to satisfy the open space requirement. The conservation easement shall:
A. Run with the land, regardless of ownership;
B. Provide for protection of the land in perpetuity;
C. Be granted and deeded to the City, a City-approved land trust, or other qualified organization approved by the City;
D. Be solely for the purpose of ensuring the land remains undeveloped; and
(2) While the City, City-approved land trust, or other qualified organization may hold the conservation easement, the property itself shall still be owned by the original property owner, the developer (applicant of the residential development), or the homeowners' association. If it is to be owned by the homeowners' association, the association's documents shall be recorded with the subdivision plat and a copy submitted to the Zoning Administrator to be maintained as part of the City's records.
(3) The conservation easement shall include information on how the property will be maintained by the property owner and shall also state that failure to maintain the property in accordance with the conservation easement agreements shall be considered a violation of Section 1280.01 of this Zoning Code. In addition, the holder of the easement may pursue any remedy provided by law or equity, including, but not limited to, the remedies in Section 5301.70 of the Ohio Revised Code.
(c) Payment in Lieu of Dedication. Upon approval of City Council and subject to the criteria set forth in this subsection (c), the developer may pay a fee-in-lieu of land dedication under subsection (a) above.
(1) The City's Planning Commission shall forward a recommendation to City Council regarding whether the owner/developer shall dedicate land (on and/or off-site), pay a fee-in-lieu of dedication, or provide a combination of any of these options that result in a value to the City of not more than the total amount of the fee-in-lieu of payment that would be required to be made by the developer to the City.
(2) Planning Commission's recommendation shall be made during review of the preliminary development plan for the property and approved by Council. Insofar as practicable, the determination of the Planning Commission shall be compatible with the City's most recent Master Plan.
(3) In making the determination required in subsection (c)(1) above, City staff, the Planning Commission and the City Council, shall consider the following criteria:
A. Suitability of soils and geology for the proposed use;
B. Suitability of topography and drainage for the proposed use;
C. Adequacy of the configuration of each proposed area, with preference given to one contiguous parcel sufficiently geometric to be usable for active and/or passive recreational pursuits, or, if the proposed dedication is located so that it could create a contiguous recreation area when combined with a neighboring parcel at the time of conveyance or in the near future;
D. Adequacy of the location of the dedicated land relative to its centrality, proximity to residents of the City, and pedestrian accessibility;
E. Extent of natural vegetation and tree cover, with priority given to the preservation of wooded areas and other natural features of scenic beauty which will add attractiveness and value to the dedicated land;
F. The degree and quality of vehicular and non-vehicular access provided to the public to use the land, and for land maintenance purposes;
G. The availability of existing recreation and parkland areas within one mile of the proposed development.
(4) Should City Council deem that the proposed dedication, or a portion thereof, does not significantly contribute to the goals of the City or finds the land unsuitable to use as parkland or for recreational facilities for reasons stated in subsections (c)(3)A. through G. above, the City shall require the developer of the residential development or new dwelling units to pay to the City, prior to issuance of a building permit, a fee as calculated under Section 205.09 of this Code.
(5) The amount to be paid by the developer as a fee-in-lieu of open parkland or recreational space shall be documented in the zoning ordinance or resolution for the development, or in a developer's agreement entered into with the City.
(6) Any such fee in lieu of payments to the City must be made prior to the issuance of a building permit and shall be deposited in the City's Parks and Recreation Fund and used solely for the purchase, development, re-development, use and maintenance of the City Park system. The City shall endeavor to expend all or part of the funds for the acquisition, development and improvement of park and recreational facilities within approximately three miles of the exterior boundary of the subdivision or development for which the funds are attributable.
(d) Hardship. In the event that the owner/developer can demonstrate by a preponderance of evidence that the application of the provisions discussed in subsection (a), (b), or (c) above create a hardship that prevents the owner/developer from developing the subject property, then such owner/developer may request a waiver or modification from City Council of the imposition of some or all of subsections (a), (b), and (c) above. In any approval thereof, Council shall make findings consistent with its determination that such hardship exists and warrants a deviation or waiver from this Code requirement. The fact that the subject property could be put to a more profitable use does not establish a hardship under this section.
(Ord. 05-2022. Passed 3-17-22.)