Article VII. Recreation, Open Space and Other Facilities
17.24.290 Recreation and open space dedications.
In cases where the amount of land to be subdivided into lots and tracts is two (2) acres or greater or where the subdivision of land will create six (6) or more lots and tracts, an area equal to at least ten (10) percent of the area of the lots and tracts to be created shall be set aside for developed and undeveloped open space. The amount to be set aside may be adjusted upward or downward, as appropriate, for conditions such as population density, existing municipal facilities, topography, socioeconomic characteristics of the prospective population, and other appropriate site- and development-specific factors. The open space shall be subject to the following provisions of this section:
A. The planning commission shall determine how much of the open space shall be designated for development. The area of each parcel of open space designed for developed open space shall be of such minimum dimensions as to be functionally usable.
B. Open space parcels shall be convenient to the residential or other lots they are intended to serve and shall be sited with sensitivity to noise generation and surrounding development.
C. At least eighty (80) percent of the required open space area offered shall be suitable for recreation and not be undevelopable land such as wetlands, swamp areas, floodways, drainageways, excessively steep areas and other areas that are not useful for recreational use in their natural state.
D. The planning commission may require the installation of recreational facilities, taking into consideration:
1. The character of the open space land;
2. The estimated age and the recreational needs of persons likely to reside or be in the development;
3. Proximity, nature and excess capacity of existing municipal recreation facilities; and
4. The cost of the recreational facilities.
E. As a general principle, undeveloped open space should be left in its natural state. Undeveloped open space shall not be used for a commercial enterprise nor may a fee be charged by a private person for admittance to the open space.
F. The open space may be set aside by means of conveyance to a governmental entity, dedication by plat, conveyance to an established private nonprofit corporation, or to a homeowner’s, condominium, or cooperative association. The subdivider may select the means of setting aside the open space, subject to the requirements of this section.
1. A conveyance must be accepted by the grantee and must contain appropriate restrictions, covenants and affirmative obligations including:
a. A prohibition against further subdivision of the open space lot or tract without approval of the city council by ordinance;
b. A covenant against the use of the parcel for other than open space and recreation purposes;
c. A covenant that the use for open space and recreation continues in perpetuity and that no other uses may be made of the land unless approved by the city council by ordinance;
d. As to undeveloped open spaces, a covenant that undeveloped open space shall not be used for a commercial enterprise nor may a fee be charged by a private person for admittance to the open space;
e. A clause providing that provisions of the conveyance run with the and are binding on successors in interest;
f. Such other provisions as may be necessary to implement additional requirements imposed by the planning commission; and
g. A provision that prevents any change to the terms of the instrument without approval of the city council.
2. If the open space is to be owned and maintained by a property or homeowners’ condominium or cooperative association, the developer shall submit with the application for the preliminary plat approval the draft declaration of covenants and restrictions and other instruments that will govern the association. These instruments shall contain provisions that include, but are not necessarily limited to, the following:
a. The association must be established before any subdivision lots or units are sold;
b. Membership must be mandatory for each lot owner, unit owner or member and any successive buyer;
c. The open space restrictions must continue in perpetuity and not be just for a period of years;
d. The association must be responsible for the area, including costs of liability insurance, taxes, and the maintenance of the space, recreational and other facilities;
e. Owners or members must pay their pro rata share of the cost, and the assessment levied by the association may become a lien on the owners’ or members’ property or interest in the association documents;
f. The association must be able to adjust the assessment to meet changed needs; and
g. The provisions of the instrument may not be changed except upon the approval of the city council.
G. The entity to which the open space land is conveyed, or the city if the land is dedicated by plat, shall be responsible for its continuing upkeep and proper maintenance.
H. A note shall be placed on the plat imposing the restrictions set out in subsections (F)(1)(a) through (g) of this section and setting out the name of the entity to which the open space is conveyed if it is not dedicated by plat. Reference to the book and pages at which all deeds, declarations and other instruments affecting the open space are recorded shall be noted on the plat. [Ord. 01-05 § 7.]