A. General Standards: The standards for the establishment, maintenance, and ownership of open space are set forth. In addition to any standards or requirements stipulated elsewhere in this Ordinance for open space located in a specific district, the following general standards shall apply to all open space:
1. To the greatest extent practical, open space shall be of a configuration suited to its specific site context and the purpose for which it is specifically proposed to be used (e.g. preserve, active or passive park, playground, walkway/bikeway, agriculture, etc.);
2. Where practical, open space shall be contiguous with existing or imminent future open space. As a rule, the contiguous interconnection shall be a minimum of twenty (20) feet in linear measure. In its discretion, the Planning Commission may reduce or waive the contiguous interconnection requirement when a lesser interconnection is deemed functional, such as for pedestrian walkways, or where the open space, though non-contiguous with other open space, is of sufficient size and design to function well and serve as a public asset;
3. A permanent restrictive covenant in the form of a perpetual conservation easement shall be placed upon open space land requiring its maintenance as open space, in form and content as approved by the Planning Commission.
4. The minimum land area that shall be designated as open space is specified in Table 10-35-3. The minimum land area shall be in addition to any critical lands within the property.
5. All land possessing the constraints of critical lands shall also be set aside as permanent open space but shall not be included in the determination of required open space.
6. The determination of open space does not include storm water handling facilities, except as may be useable outdoor space per Section 10-35-2 B.
7. The developer may locate and design open space wherever desirable for the efficient and advantageous use of the property. However, the City may specify the location and configuration of open space on the property as deemed necessary to connect adjacent, existing or future open space.
8. At no time shall any open space be reduced in size, subdivided, used, or modified beyond its original intent unless the following actions occur:
a. Amendment to the subdivision plat as prescribed in the Utah Code Annotated.
b. Notification for this action is required for all owners of property included in the plat when the open space was created. A recommendation to modify the open space shall be received by the City Council representing at least sixty six percent (66%) of the property owners.
c. Public hearings held as required.
d. Recommendation of the Planning Commission.
e. Majority vote of the City Council.
9. Land outside the proposed property shall not be used in determining the allowed density of a project.
10. Uses Within Open Space: All uses and facilities within open space developed under the provisions of this title shall be considered conditional uses and subject to the requirements of conditional uses as described in this code. Conditional uses are subject to approval and conditions as required by the Planning Commission and may include:
a. Recreation active use - play fields, parks, trails, play grounds, related parking and accessory uses to the above listed uses, such as, the preparing and serving of food and beverages, and the sale or rental of equipment, supplies and facilities in connection with and in support of the recreational activities engaged in upon the premises.
b. Agricultural crop production compatible with adjacent residential development.
c. Conservation areas, including, but not limited to, wilderness areas, watersheds, wildlife refuges, wetlands, riverways, drainageways and riparian zones.
d. Equestrian facilities;
e. Swimming pools;
f. Lakes, ponds, and streams;
g. Natural landscapes;
h. Agricultural crop lands and pasture/grazing lands;
i. Conservation easements held by a recognized conservation organization or other type of ownership as permitted by Section 10-35-4.
j. Visual amenities or expanded development setbacks.
k. Equestrian facilities.
l. Forests and forest experimentation.
m. Historic preservation and monument sites.
n. Open air theaters and meeting places.
o. Public facilities.
p. Publicly dedicated open space.
11. The following uses are not allowed in open space:
a. Motorized vehicles, except farm equipment supporting approved agricultural uses and maintenance vehicles for open space.
b. Signs other than incidental signs for allowed uses;
c. Buildings and structures, except those incidental to the use of the open space as approved by the Planning Commission.
d. Rubbish, trash, or storage of vehicles or equipment.
12. A land area not exceeding ten percent may be acquired by the City through open space to facilitate public trail connections.
13. All developments with common areas or common facilities shall be owned and managed by a "homeowner association" as defined in U.C.A § 57-8a.
14. The following notation shall be fulfilled and shall be recorded on the face of the final plat;
"Open Space designated on this ptat shall be maintained in perpetuity and shall remain in the condition that it was originally intended and shall not be modified or used for buildings. The City of Wellsville shall have the right, but not the duty, to require, and if necessary, perform, at the organization's orowner(s) expense, landscaping, maintenance and snow removal, as applicable, within the open space areas if the organization or owner(s) fail to adequately perform such. The City may take this action when asked to take over improvements or maintenance tasks by the home owner's association or the property owner(s). The City may also take such action when it determines the need based on a historical pattern of lack of care and maintenance, in the event Wellsvilie City exercises this right, the City shall be entitled to recover any associated costs and attorney fees. This notation shall not be amended or deleted without the written approval of Wellsville City".
15. Leasing, renting or use by any entity or person other than the homeowners' association of any portion of the open space shall be reviewed and approved by the Planning Commission for use compatibility.
B. Ownership Of Open Space: Open space shall be protected through a perpetual conservation easement held by the City or by a recognized land trust, conservancy, or homeowners' association. Ownership shall exist as specified in Section 10-35-4
. The ownership document shall be reviewed and approved by the City and recorded at the office of the county recorder. Open space within a development shall be owned, administered and maintained by any of the following methods, either individually or in combination, and subject to approval by the City:
1. Type 1 - Offer of Dedication: The city shall have the first and last offer of dedication of open space in the event said land is to be conveyed. Dedication shall take the form of fee simple ownership. The City may, but shall not be required to, accept open space; provided, that the Planning Commission shall consider and make determinations and findings as to the following in its review of public dedication of open space:
a. Such land is accessible to the city and adjacent to a public right-of-way or legal easement;
b. There is no cost of acquisition other than any cost incidental to the transfer of ownership and
c. The city agrees to and has the funds and ability to maintain such lands. Where the city accepts dedication of open space that contains improvements, the city may require the posting of financial security to ensure satisfactory functioning and structural integrity of improvements for a term not to exceed one (1) year from the date of acceptance of dedication. The amount of financial security shall not exceed fifteen percent (15%) of the actual cost of installation of said improvements.
d. There shall be documentation of a clear plan for the conveyance of the open space to the accepting public entity, with a written agreement of acceptance from said entity. Copies of all documents related to conveyance shall be filed with the City Attorney.
e. There shall be documentation of an agreement as to the condition of the open space necessary for acceptance and conveyance. This shall include stipulations as to what improvements, if any, are expected, and whether the developer or the City is responsible for installation of said improvements. If the public dedication is part of a request for any bonus under this chapter, the Planning Commission may require of the developer a reasonable contribution towards improvement of the open space. The developer may have the option of actually constructing the improvements or making a monetary contribution to the City based on the cost estimate of a certified civil engineer, landscape architect or guaranteed contractor proposal acceptable to the Planning Commission.
2. Type 2 - Homeowners’ Association (HOA): The open space and associated facilities may be held in common ownership by a homeowners' association. The HOA shall be formed and operated as prescribed in Section 10-35-4
with the additional provisions:
a. The developer shall provide covenants, conditions and restrictions (CC&Rs) of the association, including its bylaws, articles of incorporation and methods for maintaining the open space. The CC&Rs shall be reviewed and approved in content and form by the city. Acceptance of the CC&Rs by the city will be contingent upon meeting the intent and conditions required by this code. The CC&Rs will be approved by the City prior to filing the CC&Rs with the final plat.
b. The association shall be organized by the developer and be operated with financial subsidy by the developer, before the sale of any lots within the development. The association shall continued to be operated by the developer for a minimum of two (2) years after sixty percent (60%) of the development is occupied.
c. A narrative describing ownership, use, and maintenance responsibilities shall be submitted for all common and public improvements, utilities and open space within critical lands and open space. There shall be documentation of legally enforceable mechanisms for responsibility of maintenance of the open space as specified herein.
d. Membership in the association is automatic and mandatory for all purchasers of homes or lots therein and their successors. The conditions and timing of transferring control of the association from developer to homeowners shall be identified in the CC&Rs.
e. The association shall be responsible for maintenance of insurance and taxes on open space, enforceable by liens placed by the City.
f. The members of the association shall share equitably the costs of maintaining and developing open space. Fees shall be determined by the association and assessed and deposited in an escrow account. Shares shall be defined within the association bylaws.
g. The developer of the subdivision shall endow the newly formed homeowners' association with funds equivalent to ten percent (10%) of the development cost for all common improvements plus an amount equal to one years operating expenses to maintain and insure the open space. These funds shall be used exclusively by the HOA to operate, maintain and insure the HOA for the first year that the association begins to operate independently of the developer. Remainder funds, if any, shall be used in for subsequent years. Funds shall be deposited in a checking account in the name of the HOA within ten (10) days after the day which the HOA begins to operate independently of the developer.
h. In the event of a proposed transfer, within the methods herein permitted, of open space by the homeowners' association, or of the assumption of maintenance of the open space by the City, notice of such action shaii be given to all property owners within the development.
i. All improvements to the open space held in common or intended to be held in common by the HOA shall be installed, completed and accepted prior to the beginning of the second phase of construction, or if the project is not phased, prior to sale of 20% of the total lots in the project. If phasing of the improvements to the open space is required by the developer, all incomplete improvements for the open space shall be secured through a bond (Section 10-56-3
) equal to one hundred fifty (150%) of the estimated value of the improvements, posted by the developer.
j. The association shall have or hire adequate staff to administer common facilities and properly and continually maintain the open space.
k. The homeowners' association may lease open space to any other qualified person, or corporation, for operation and maintenance of open space by lease agreement, which shall provide that:
(1) The residents of the development shall at all times have access to the open space contained therein, except that agricultural crops may not be accessed unless the grower specifically allows;
(2) The open space to be leased shall be maintained for the purposes set forth in this title; and
(3) The operation of facilities within the open space may be for the benefit of the residents only, or may be open to the residents of the City, at the election of the developer and/or homeowners' association, as the case may be;
(4) The lease shall be subject to the approval of the Planning Commission specific to the compatibility of use of open space intended by the lessee.
l. A conservation easement shall be established to provide a permanent preservation of the open space. The easement shall be indicated on the recorded plat and state the ownership of the easement and reference the maintenance agreement also recorded with the final plat stating the standards of upkeep as defined in these subdivision regulations.
3. Type 3 - Transfer of Easements to Private Conservation Organization: With the approval of the Planning Commission, an owner may transfer easements or ownership to a private nonprofit organization, among whose purposes it is to conserve land; provided, that:
a. The organization is acceptable to the Planning Commission and is a bona fide conservation organization recognized by the Internal Revenue Service as a 501c3 organization with perpetual existence;
b. The conveyance contains appropriate provision for proper reversion or retransfer in event that the organization becomes unwilling or unable to continue carrying out its functions; and
c. A maintenance agreement acceptable to the Planning Commission is entered into by the developer/owner, the City, and the organization.
C. Maintenance Standards: The following standards for maintenance shall be fulfilled for all opens space:
1. The owner of the open space shall be responsible for maintenance and the raising of all monies required for operations, maintenance or physical improvements to the open space through annua! dues, special assessments, etc. The maintenance organization shall be authorized, under its bylaws, to place liens on the property of residents who fall delinquent in payment of such dues, assessments, etc.
2. In the event that the maintenance organization, or any successor organization, shall, at any time after establishment of a development containing open space, fail to maintain the open space in reasonable order and condition, the City 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 in reasonable condition.
3. Failure to adequately maintain the open space in reasonable order and condition constitutes a violation of this title. The City is hereby authorized to give notice, by personal delivery or by United States Postal Service, to the owner or occupant, as the case may be, of any violation, directing the owner to remedy the same within thirty (30) days. Further, the City shall be authorized to assume maintenance of the open space in such a manner as it deems appropriate.
4. Should any bill or bills for maintenance of the open space by the City be unpaid by January 1 of each year, a lien shall be filed against the premises in the same manner as other municipal claims. The City shall be entitled to recover any costs and attorney fees incurred in collecting or recovering any such amounts due to the City.
5. Access by Public Upon Completion Of Improvements Within Open Space. The public shall have access, when mutually agreed by all parties, including the City. Lots designed with rear facing open space shall be accessible at all times and all locations. At no time shall public access be denied unless unsafe conditions exist or unless approved by the City. Public access within open space shall be allowed only where identified and allowed within the approval documents. (Ord. 2019-04, 10-16-2019; amd. Ord. 2021-03, 5-19-2021)