A. Purpose: The City finds that land in other locations may be substituted for open space requirements where it is advantageous to preserve important and critical land within the limits or in locations outside city limits that are included in the future annexation area of the City. For this purpose, developers may choose to receive additional incentives in lieu of developing the land required for open space if equivalent or greater land is identified and substituted in another location(s) and acceptable to the City. A method called "in lieu substitution" or "in lieu open space substitutions", hereafter.) The following conditions shall apply to in lieu open space substitutions:
1. As an incentive or bonus for providing open space, the Planning Commission may grant density, coverage, or height bonuses to developments providing additional open space where ever open space set asides are required in Sections 10-11-20 and 10-11-21.
2. Recordation of a final plat for a subdivision utilizing an approved density bonus and an in-lieu substitution may not occur until in lieu substitutions are approved, finalized, and effective.
3. An in-lieu substitution may be approved, for open space land in another location, only when such proposed in lieu substitution of open space land is absent hazards to development such as, but not limited to, steep slopes, geologic hazards, unstable soils, flood plains, wetlands, riparian areas, water source protection areas. In no case shall hazardous lands be used for the original development density or the bonus density. Where agricultural land is being substituted, equally productive or more productive agricultural land must be substituted.
4. For in lieu substitutions, use of the open space land shall be limited to the uses allowed in open spaces in Section 10-35-4
.
5. In lieu substitutions of land intended to fulfill the requirements for open space may be allowed when it is factually established, by a qualified land appraiser, that the substituted land is at least equal to or greater than the value of land compared with the development property as if developed fully as proposed. The City must agree to and approve the land area to be appraised both from the original site and the proposed substituted site prior to the appraisal. The appraiser will be selected by and contract with the City. The fees for the appraisals will be reimbursed to the City at cost by the developer.
6. Any land which has been dedicated, set-aside, platted, or otherwise approved as open space may not be substituted or used for any purpose other than those allowed in Section 10-35-5
.
B. Land for in-lieu open space substitutions shall not be eligible for substitution outside of the corporate boundaries of Wellsville City. Except, the Planning Commission may approve land inside the future annexation area as defined in the Annexation Plan which is outside of the current corporate limits. Such land must contribute to the purposes of open space as defined herein.
C. Types of Open Space Substitutions Available; The following options are available to developers to propose to the City for in lieu substitutions for bonus and open space requirements:
1. Cash in lieu: The City may, at its sole discretion, accept cash in lieu of open space requirements where such funds can be more effectively used to acquire land at a more appropriate or significant location consistent with the General Plan, the Parks and Recreation Master Plan, the Annexation Plan and other adopted documents identifying substitute sites for open space. Cash in lieu payments shall not be accepted until a qualified appraisal, authorized by the City and at the cost of the applicant, identifying the value of the original land for which the in-lieu substitution is proposed, based on the use that will be permitted if the open space requirement is removed, and for which cash in lieu shall be offered. The City shall be obligated to use in lieu funds for uses identified in Section 10-35-5, above, and shall diligently pursue purchase of the land for this purpose to prevent erosion of purchasing power.
2. Land in lieu: The City may, at its sole discretion, accept land in lieu of open space requirements under the following conditions:
a. The proposed land to be substituted is consistent with the General Plan, the Parks and Recreation Master Plan, the Annexation Plan and other adopted documents identifying substitute sites for open space.
b. Other land is acceptable to and approved by the City as open space in a location determined by the City to be a substitute site;
c. Acceptable and approved land is dedicated to the City with unencumbered title; and
d. in lieu substitution for open space is retained in use and ownership consistent with other acceptable forms of open space ownership in this chapter.
3. Purchase of Development Rights: The City may, at its sole discretion, accept the purchase of development rights by the developer to meet in lieu of open space requirements under the following conditions:
a. Other land of sufficient size and value is acceptable to and approved by the City as open space in a location determined by the City to be an in-lieu substitute site for the purchase of development rights by the applicant;
b. The proposed land to be substituted is consistent with the General Plan, the Parks and Recreation Master Plan,, the Annexation Plan and other adopted documents identifying substitute sites for open space.
c. Land where development rights are purchased by the applicant shall be subject to a recorded conservation easement that runs with the land and exists in perpetuity. The conservation easement shall be held by a recognized conservation organization acceptable to the City, and subject to the requirements for such ownership as stated in Section 10-35-4
B.3 of this Chapter. All documentation shall be reviewed and approved by the City;
d. Cost of the purchase of development rights by the applicant is equivalent to the value of the original land for which the in-lieu substitution for open space is proposed, based on the use that will be permitted if the open space requirement is removed, and for which purchase of development rights shall be offered; and
e. Uses of the land within the conservation easement are consistent with other acceptable forms of open space ownership and uses in this chapter.
f. The recordation of the final plat shall not occur until the documents evidencing the purchase of development rights and all conservation easements are ready to be recorded simultaneously with the final plat and not until the purchase prices for all development rights and all conservation easements are paid in full, in order to provide marketable title to the City, without encumbrances not accepted by the City
D. In lieu substitution applications shall first be reviewed by the Planning Commission as a part of the initial application for Design Review Permit. Approval of the in lieu substitution shall be obtained from the City Council before recordation of the Final Plat or issuance of a building permit, which ever occurs first.
E. The provisions of Chapter 10-35
shall be effective for all applications for Design Review Permit filed on or after the effective date of this ordinance; provided, however, the Planning Commission and the Mayor shall have the authority to approve an in lieu substitution for open space for an existing subdivision or development containing approved open space, subject to such application first being submitted to the Planning Commission for its consideration and recommendation to the Mayor. If the in-lieu substitution application is approved, the applicant shall comply with all applicable land use laws of the City and State.
F. Nothing contained in this Chapter 10-35
shall be construed as restricting the use of the Utah Open and Public Meetings Act, Utah Code Sections 52-4-101, et seq., and as they might be amended, by the City Council, Planning Commission, and other City Officials, to hold closed meetings, as reasonably determined necessary, for all purposes therein allowed, including strategy sessions to discuss the purchase, exchange, lease or sale of real property, as contemplated herein. (Ord. 2019-04, 10-16-2019)