(A) General policy. The Planning Commission and Town Board, upon consideration of the town’s comprehensive plan and the particular type of development proposed in the subdivision, shall require the dedication or reservation of areas or sites of a character, extent and location suitable for public use for roadways, schools, open spaces, parks, public safety and maintenance facilities, historic sites, scenic areas and other necessary public purposes. All dedications and reservations for parks and open spaces must meet the requirements of the zoning ordinance for these uses.
(B) Public dedications to the town.
(1) Reference shall be made to the town’s comprehensive plan to determine general locations for various public facilities.
(2) Dedication of such sites and land areas shall be made at the time of final platting in one or any combination of the following ways:
(a) By dedicating to the town, in fee simple on the final plat;
(b) By granting the land areas in fee simple on general warranty deeds to the town; or
(c) By payment of fees in lieu of land dedications.
(C) Commercial and industrial (or other nonresidential) subdivisions. In the case of nonresidential subdivisions (less than 10% residential use), an exaction of 2% and/or equivalent fees for public facilities will be required by the Commission and Board at the time of subdivision. The allocation of land and/or fees for public facilities will be made at the discretion of the Board of Trustees upon recommendation of the Planning Commission. For mixed-use subdivisions, exactions for residential and nonresidential uses will be based on the proportion of the land associated with residential use.
(D) Residential subdivisions.
(1) The subdivider shall provide sites and land areas for public facilities to serve the proposed subdivision and the future residents thereof.
(2) Such provisions include the following.
(a) For linear subdivision (linear subdivisions as used herein refers to the traditional subdivision of land not previously subdivided by official plat filing and does not refer to such subdivisions as condominiums and townhouses), the Commission shall require the dedication of land areas or sites suitable for public purposes defined above of 6% of the total area of the subdivision.
(b) In the case of a subdivision of land into multiple dwelling units on land which has not been previously approved as a linear subdivision or on land where no previous public facilities dedications was made or fees-in-lieu paid, the subdivider shall dedicate 6% of the gross area of the land to the town for public facilities. Said requirement may be waived in whole or in part by the Commission if there is sufficient park space already provided for the future residents of the proposed subdivision.
(c) 1. With the approval of the Planning Commission and the Board Trustees, the subdivider will be required to pay fees in lieu of the equivalent land areas which would have been dedicated to public facilities.
2. Fees are to be calculated in the following manner.
a. Fees shall be calculated based on the full market value of the land immediately prior to the platting, but with the zoning district classification existing at the time of platting that is considered with the plat application’s intended use.
b. Full market value shall be determined by mutual agreement between the subdivider and the Board of Trustees. In the event of inability of any of the above parties to agree on the value of the subject land, the subdivider shall submit to the town a written appraisal from a qualified appraiser meeting the value requirements set forth herein. Said appraisal shall be made by an individual or entity that does not have any financial interest in the subdivision and shall be a member of the Appraisal Institute (MAI) or a member of the Society of Real Estate Appraisers (SRA), or such other qualified persons mutually agreeable to staff and the developer. The subdivider shall pay the cost of said appraisal.
c. Such appraisal may be submitted during the review period of the final plat. If the Commission or Board believes that the appraised value is not accurate, it may obtain its own appraisal from a qualified appraiser, such cost of the appraisal to be paid by the town. The average of the two appraisals shall be used in order to determine the fees the subdivider shall pay.
d. All fees-in-lieu of dedications are to be paid prior to the approval of the final plat.
e. For subdivisions that are platted in phases, the above calculations can be made on a phase-by-phase basis through methods to be devised by the Commission and/or Board, realizing that by virtue of developing one phase, the value of the undeveloped adjacent phase will increase. The subdivider has the option of paying the fees for all phases upon the due date of fees for the first phase.
(d) Payments made under the requirements of this section shall be made payable to the town.
1. Such funds shall be deposited with the Town Clerk to a special interest-bearing account. Each deposit shall be credited to the name of the subdivision for which the payment was made. The status of these accounts shall be reported annually to the Board of Trustees.
2. Funds may be withdrawn from the special escrow account by the Board for the following purposes:
a. Purchase of land for public facilities and purposes;
b. Preparation of design drawings for improvement to existing public facilities within the town;
c. Purchase of materials, including, but not limited to, trees, shrubs, benches and equipment to be used in public parks or recreation facilities as approved by the Board;
d. Physical improvements made to existing public parks or recreational facilities as approved by the Board;
e. Construction of all types of public facilities; and
f. i. Direct transfer of funds to the school district serving the town for capital improvements and land acquisition of an amount no greater than one-third of the 6% total dedication.
ii. Thus, the maximum public dedication exaction of land or fees-in-lieu for schools is 2% and other public purposes is 4% for a total of 6%.
(E) Special conditions for dedicated public purpose lands. Land areas that shall not be acceptable in determining the fulfillment of the re-equipments for the provision of land areas for public purpose facility sites shall include the following:
(1) Natural drainage ways, streams, gullies and rivers including all lands within the 100-year floodplain (note: unless the Board specifically accepts a certain portion for a reasonable use);
(2) Rights-of-way and/or easements for irrigation ditches and aqueducts; and
(3) Steep, rugged and hazardous geological land areas and such other areas as are not conducive for use as public purpose sites.
(F) Recreational facilities and open space.
(1) Required reservations for parks and open space.
(a) All residential developments or developments that include a residential component shall provide, through dedication, in-lieu fees or private reservation toward the expected recreational needs of their future residents as required by these zoning regulations.
(b) 1. The decision on park contribution requirements shall occur at the preliminary plan review, and the requirements for either land dedication or in-lieu fee for public dedication decided at the final approval stage.
2. Land dedication will generally be required only if a proposed park facility shown on the town’s open space and parks plan is located on or near the proposed development, and if land dedication could logically contribute to the development of the proposed park.
(c) 1. Dedications to the town can be proposed to be up to 6% requirements for public purpose dedications as approved by the Planning Commission and Board.
2. Additional open space set-aside requirements of the zone district may be dedicated and reserved for private home-owners associations or operated by special districts as appropriate.
3. The town reserves the right to accept or reject park and open space dedications as these proposed dedications may relate to the town’s park development and maintenance plans.
(2) Mini-parks: purpose and standards.
(a) 1. The purpose of the mini-parks is to provide adequate active recreational facilities to serve the residents of the immediately surrounding neighborhood within the development.
2. The following are illustrative of the types of facilities that shall be deemed to serve active recreational needs and, therefore, to count toward satisfaction of the mini-park requirements of this section: tennis courts, racquetball courts, ball diamonds, swimming pools, sauna and exercise rooms, meeting or activity rooms within clubhouses, basketball courts, swings, slides, play apparatus and open areas for volleyball, badminton and other games.
(b) Each development may satisfy up to half of its open space contribution requirement by installing the types of active recreational facilities that are most likely to be suited to and used by the age bracket of persons likely to reside in that development.
(c) Mini-parks shall be attractively landscaped and shall be provided with sufficient natural or human-made screening or buffer areas to minimize any negative impacts upon adjacent residences.
(d) Each mini-park shall be centrally located and easily accessible so that it can be conveniently and safely reached and used by those persons in the surrounding neighborhood it is designed to serve.
(e) Each mini-park shall be constructed on land that is relatively flat, dry and capable of serving the purposes intended by this subchapter.
(3) Usable open space.
(a) Except as provided in this chapter, every development shall be developed so that a land area, as specified by the zone district and as may be identified by the comprehensive plan, remains permanently as usable open space.
(b) For purposes of this section, USABLE OPEN SPACE means an area that:
1. Is not encumbered with any substantial structure;
2. Is not devoted to use as a roadway or parking area;
3. Is left (as of the date development began) in its natural or undisturbed state if wooded, except for the cutting of trails for walking or jogging, or, if not wooded at the time of development, is landscaped for ball fields, picnic areas or similar facilities, or is properly vegetated and landscaped with the objective of creating a wooded area or other recreation area;
4. Is capable of being used and enjoyed for purposes of informal and unstructured recreation and relaxation; and
5. Is legally and practicably accessible to the residents of the development out of which the required open space is taken, or to the public if dedication of the open space is required pursuant to this chapter.
(c) All developments are required to provide a trail or sidewalk system to accommodate pedestrian and bicycle circulation.
(d) Subdivided residential developments of less than 25 dwelling units are exempt from the requirements of this section unless the town agrees that it will accept an offer of dedication of such open space, and, in that case, the offer of dedication shall be made.
(4) Ownership and maintenance of recreational areas and required open space.
(a) Except as provided below, recreation facilities and usable open space required to be provided by the developer in accordance with this chapter shall not be dedicated to the public but shall remain under the ownership and control of the developer (or his or her successor) or a homeowners association or similar organization that satisfies the criteria established in this chapter.
(b) The person or entity identified in this section as having the right of ownership and control over such recreational facilities and open space shall be responsible for the continuing upkeep and proper maintenance of the same.
(5) Dedication of open space.
(a) 1. If any portion of a lot proposed for residential development lies within an area designated on the officially adopted recreation master plan as a neighborhood park or part of the greenway system or bikeway system, the area so designated (not exceeding 6% of the total development area parcel) shall be included as part of the area set aside to satisfy the requirement of this section.
2. This area shall be dedicated to public use.
(b) If more than 6% of a development parcel proposed for residential development lies within an area designated as provided in this section, the town may attempt to acquire the additional land in the following manner:
1. The developer may be encouraged to dedicate the common open space thereby created to the town; or
2. The town may purchase or condemn the land.
(6) Homeowners associations. Homeowners associations (HOAs) or similar legal entities that, pursuant to this section, are responsible for the maintenance and control of common areas, including recreational facilities and open space, shall be established in such a manner that:
(a) Provision for the establishment of the association or similar entity, according to state law, is to be made before final subdivision approval is made or any lot in the development is sold; legal documents are to be forwarded to the town prior to final approval;
(b) The association or similar legal entity has clear legal authority to maintain and exercise control over such common areas and facilities;
(c) The association or similar legal entity has the power to compel contributions from residents of the development to cover their proportionate shares of the costs associated with the maintenance and upkeep of such common areas and facilities; and
(d) The town retains the legal authority to compel HOAs to maintain it’s properties in proper condition.
(7) Flexibility in administration authorized.
(a) 1. The requirements set forth in this section concerning the amount, size, location and nature of recreational facilities and open space to be provided in connection with residential developments are established by the Board as standards that presumptively will result in the provision of that amount of recreational facilities and open space that is consistent with officially adopted town plans. The Board recognizes, however, that, due to the particular nature of a tract of land, or the nature of the facilities proposed for installation, or other factors, the underlying objectives of this section may be achieved even though the standards are not adhered to with mathematical precision.
2. Therefore, the town is authorized to permit minor deviations from these standards, whenever it determines that:
a. The objectives underlying these standards can be met without strict adherence to them; and
b. Because of peculiarities in the developer’s tract of land or the facilities proposed, it would be unreasonable to require strict adherence to these standards.
(b) Whenever the Town Board authorizes some deviation from the standards set forth in this section, pursuant to this section, the official record of action taken on the development application shall contain a statement of the reasons for allowing the deviation.
(8) Streets, roads, pathways and easements. All public streets, roads, pathways and easements for utilities are to be offered for dedication to the town or special district as appropriate at the time of final plat approval. Final plats are to allow for these dedications; however, the actual transfer of dedications of such streets, road, pathways and easements shall not occur until such improvements are “accepted” by the town or special district through their normal improvement acceptance procedure. The dedicated rights-of-way and easements are to be shown on the final plat along with the dedication endorsement.
(G) Fair contribution for public school sites.
(1) For all subdivisions of land, the subdivider shall dedicate land for a public school site to the town’s School District RE-50J (“school district”), or, in the event the dedication of land is not deemed feasible or in the best interest of the school district, as determined by the superintendent or designee of the school district, the subdivider shall make a payment in lieu of land dedication. The amount of such contribution of either land or payment in lieu of land (the “fair contribution for public school sites”) shall be determined pursuant to the table set forth in division (G)(6) below.
(2) The following uses shall be excepted from the fair contribution for public school sites requirements:
(a) Construction of any nonresidential building or structure;
(b) Construction of any infill residential project that will not significantly increase school attendance;
(c) Alteration, replacement or expansion of any legally existing building or structure which does not increase the number of residential dwelling units;
(d) Construction of any building or structure for limited term stay or for long-term assisted living, including, but not limited to, bed and breakfast establishments, adult boarding or rooming houses, workforce housing, the majority of which will be occupied by adults, family-care homes, group-care homes, halfway houses, hotels, motels, nursing homes or hospices;
(e) Construction of any residential building or structure classified as housing for older persons, pursuant to the Federal Fair Housing Act then in effect; and
(f) Construction of any low-income housing unit designated as such by the town.
(3) The town and school district may consider a request from a subdivider for an exemption from the fair share contribution for public school sites where the subdivider demonstrates that good cause exists to justify an exemption. For purposes of this section, GOOD CAUSE shall include, but not be limited to, by demonstrating to the town and school district that a unit or units will not significantly increase school attendance, will significantly or substantially advance one or more planning policies of the town and school district and that the wavier or exemption will directly assist the town and school district in achieving said policies.
(4) In the event the fair contribution for public school sites includes the dedication of land, the subdivider shall provide to the town, prior to recording the final plat, evidence that such dedication has been made to the school district in accordance with the following requirements.
(a) The subdivider has conveyed to the school district by general warranty deed title to the land slated for dedication, which title is free and clear of all liens, encumbrances and exceptions (except those approved in writing by the school district), including, without limitation, real property taxes, which will be prorated to the date of conveyance or dedication. If requested by the school district, the subdivider shall also enter into a contract with the school district for the sale and purchase of real property containing customary terms for the land being conveyed to or purchased by the school district.
(b) At the time of dedication or conveyance, the subdivider shall provide a title insurance commitment and policy in an amount equal to the fair market value of the dedicated property.
(c) Arrangements have been made such that, at the appropriate time, and not later than the issuance of the first building permit for the subdivision, the subdivider shall pay or provide for the payment of its proportionate share of street development costs, if any, for any new roads or streets determined necessary by the town to provide reasonable access to the school site, and shall either provide, or pay or make provision for the payment of the costs associated with making improvements for water, sewer and utilities stubbed to the site, and over lot grading of the dedicated land. If the school site is located in a later phase of the development and the subdivider has agreed to install the required streets and utilities, the subdivider may satisfy the foregoing obligation by providing the town with a letter of credit or other improvement guarantee equal to at least 115% of the proportionate cost of the improvements prior to the issuance of the first building permit for the land development project. The subdivider shall also have furnished any off-site easements that the school district needs to develop the site.
(d) The land being dedicated or conveyed to the school district shall be located and configured as directed by the school district.
(5) If the fair contribution for public school sites includes payment in lieu of dedication of land, then prior to the issuance of any building permit for any residential dwelling unit in the subdivision not otherwise exempt under division (G)(2) above, the town shall be provided with proof that, for the lot for which the permit is sought, the required payment in lieu of dedication of land has been made to the school district.
(6) The following table shall be used to determine the fair contribution for public school sites to the school district required for the various occupancies addressed in such table:
Table 6A School Land Dedication and In-Lieu Fees Calculations | |||
Single-Family Detached | Single-Family Attached, Duplex, Triplex, Four-plex, Condo, Townhouse | Apartment | |
Site Dedication Acreage per Unit | 0.0272 | 0.0136 | 0.0068 |
Fee-in-lieu per Unit | $1,088.59 | $544.29 | $272.15 |
(Ord. 2-98, passed 4-22-1998; Ord. 04-2021, passed 2-24-2021) Penalty, see § 153.999