Sample Ordinance Language for Conservation Subdivisions

1.0 Purpose

In addition to the general goals listed in the statements of Purpose, and Community Development Objectives in Article I of this Ordinance, the purpose of this article is to:

This section of the ordinance outlines the purposes of allowing conservation subdivisions as a development option. Ideally, this section should also refer to the goals of the municipal comprehensive plan and open space plan to provide additional policy support for the implementation of the conservation subdivision provisions and treatment of the required open space.

1.1 Conserve open land, including those areas containing unique and sensitive natural resources such as woodlands, steep slopes, streams, floodplains, riparian buffers, and wetlands, by setting them aside from development.
1.2 Provide greater design flexibility and efficiency in the siting of services and infrastructure, including the opportunity to reduce the length of roads, utilities, and the amount of paving and impervious surface required for residential development.
1.3 Reduce erosion and sedimentation through the retention of existing vegetation, the minimization of development on steep slopes, and the reduction of earth disturbance.
1.4 Implement the policies of the Township's Comprehensive Plan and Open Space, Recreation, and Environmental Resources Plan to protect environmentally sensitive areas, address recreation, trails, and open space needs, and to preserve the municipality's scenic and rural character.
1.5 Provide for a diversity of lot sizes, building densities, and housing choices; and to accommodate a variety of age and income groups and residential preferences, so that the municipality's population diversity may be maintained.
1.6 To provide development options for landowners which minimize impacts on sensitive environmental resources, reduce disturbance of natural and cultural features, and conserve scenic views.

Qualifying conditions specify the zoning districts in which the conservation subdivision is permitted and the minimum tract size required to use the option. The minimum tract should not be exceedingly large. A successful conservation subdivision can occur on a tract as small as ten acres. Allowing conservation subdivisions on smaller tracts may be particularly useful when the tract is located adjacent to another development with preserved open space. In some municipalities no minimum tract size is required. A site area of greater than 10 acres might be considered for the Village Design Option.

2.0 Qualifying Conditions

To be eligible for development under the Conservation Subdivision Option, a site must, at a minimum:

2.1 Be located within (add district names) zoning district(s).
2.2 Be at least ten (10) acres in area and capable of supporting at least five (5) dwelling units per the requirements of these regulations.
2.3 Consist of either:
- 2.3.1 A single parcel of land, or
- 2.3.2 Multiple contiguous parcels. In the case of multiple contiguous parcels, all applicable parcels shall be developed according to a single plan and with common authority and common responsibility. The municipality may require evidence of an agreement between all owners of included parcels demonstrating binding commitment to common development of the parcels.

The "qualifying conditions" can be included in the individual zoning district articles where the use will be permitted. The provisions shown here are designed to be included in the conservation subdivision article. The articles for the individual districts should also indicate if the conservation subdivision is permitted by right, special exception, or conditional use and the minimum tract size (if applicable).

The following are additional Qualifying Conditions a municipality might consider:
2.4 The applicant shall demonstrate to the satisfaction of the municipality that adequate water supply can be provided for the intended residential and open space uses and for fire emergency purposes.
2.5 The applicant shall demonstrate to the satisfaction of the municipality that adequate sewage treatment and disposal facilities can be provided, consistent with the Township Sewage Facilities (Act 537) Plan, and further, subject to demonstration of compliance with all applicable regulations of the Chester County Health Department and the Pennsylvania Department of Environmental Protection.
2.6 The proposed development shall be generally consistent with the municipal comprehensive plan and the Chester County comprehensive plan as applicable.

This section lists the dwelling types (e.g., singles, twins, townhouses, etc.) permitted within the conservation subdivision options. The types of dwelling units permitted may vary depending upon the zoning district in which the conservation subdivision is proposed. Other permitted uses would include accessory uses typically allowed in conjunction with a residential use. (The "Permitted Uses" section can also be handled through the individual zoning district articles rather than within the conservation subdivision standards.)

3.0 Permitted Uses

3.1 Single-Family Detached Conservation Design Option. This design option allows for single-family residential development on smaller lots with at least sixty-five (65) percent of the gross tract reserved for open space.
- 3.1.1 The following uses shall be permitted within this option:
  - Single-family detached dwellings.
  - Uses permitted in the designated open space shall be as indicated in Section 6.4.
- 3.1.2 The following uses shall also be permitted within this option:
  - Minor home occupations (by-right), subject to the provisions of Section . (Note: These blank sections refer to the Supplemental Use Standards.)
  - Major home occupations (by special exception), subject to the provisions of Section .
  - Accessory uses shall be permitted subject to the provisions of Section of this ordinance.
3.2 Mixed Residential Conservation Design Option. This design option provides for a range of residential dwelling types at a higher density with at least fifty (50) percent of the gross tract reserved for open space.
- 3.2.1 The following uses shall be permitted within this option:
  - Single-family detached dwellings.
  - Single-family semi-detached dwellings (twins).
  - Single-family attached dwellings (townhouses), limited to a maximum of six (6) dwellings per structure.
  - Multi-family dwellings (apartments), limited to a maximum of eight (8) dwellings per structure.
  - Uses permitted in the designated open space shall be as indicated in Section 6.4.
- 3.2.2 The following uses shall also be permitted within this option:
  - Minor home occupations (by-right), subject to the provisions of Section .
  - Major home occupations (by special exception), subject to the provisions of Section .
  - Accessory uses shall be permitted subject to the provisions of Section of this ordinance.
3.3 Village Design Option. This option allows for a variety of residential dwelling types designed and arranged to incorporate the design principals of traditional villages, which include: a mix of residential and commercial uses; a compact form, a well-defined edge that separates the development from the surrounding undeveloped land; and a pedestrian orientation. At least seventy-five (75) percent* of the tract is reserved for open space. Small scale commercial uses may also be incorporated into the village option.
- 3.3.1 The following uses shall be permitted within this option:
  - Single-family detached dwellings.
  - Single-family semi-detached dwellings (twins).
  - Single-family attached dwellings (townhouses) limited to a maximum of four (4) dwellings per structure.
  - Multi-family dwellings (apartments) limited to a maximum of four (4) dwellings per structure.
  - Other types of dwelling units may be considered and approved by the governing body based on their appropriateness to the village or hamlet design.
  - Commercial uses and mixed uses (commercial/residential) subject to the provisions of Section and where the village tract abuts an arterial or collector road as designated in the comprehensive plan, as amended. Permitted non-residential uses in the Village Design Option shall include the following:
    - Retail uses, professional offices, and personal or professional services. Retail uses specifically excluded from the Village Option shall include flea markets, indoor/outdoor amusement businesses, automotive sales, car washes, gasoline stations, building supply stores, adult commercial, and ministorage facilities.
    - Bed and breakfast establishments, subject to the provisions of Section .
    - Day care centers, subject to the provisions of Section .
    - Second-story residential uses above retail or office uses.
    - Artisan living/working uses.
    - Uses permitted in the designated open space shall be as indicated in Section 6.4.
- 3.3.2 The following uses shall also be permitted within this option:
  - Minor home occupations (by-right), subject to the provisions of Section .
  - Major home occupations (by special exception), subject to the provisions of Section .
  - Accessory uses shall be permitted subject to the provisions of Section of this ordinance.
*Note: this open space requirement can range between 65-75 percent. In general, higher percentages of open space should be required when higher densities are permitted.

The formulas for calculating the minimum required open space and maximum permitted number of dwelling units are included in this section of the ordinance. While there are several different methods possible for determining these numbers, a density multiplier is often used for determining the maximum number of units based on the net tract size.

The tract size is typically adjusted based on the natural constraints present as well as easements, rights-of-way, and existing streets or utility easements. The multiplier times the tract size provides the maximum number of dwelling units permitted in the subdivision. The minimum percentage of open space required is also specified for each district and may be further increased depending on the level of the site constraints (steep slopes, floodplain, etc.) present.

In general, the intent is to keep the base density neutral with or close to that of a conventional development. Some municipalities allow for additional units to encourage the use of the conservation subdivision option. The applicant may be required determine the number of units permitted through conventional zoning by developing a "yield plan" or calculating the potential units after constrained lands are subtracted. The density permitted under the conservation subdivision is tied back to this determination. This approach is used in the Growing Greener Conservation by Design concept.

4.0 Example 1 — Open Space and Density/Dwelling Unit Calculation

Determination of the maximum number of permitted dwelling units for the Single-Family Detached Conservation Design Option, the Mixed Residential Conservation Design Option, and the Conventional Subdivision Option shall be based upon the adjusted tract acreage of the site and the calculations set forth below.

4.1 Adjusted Constrained Lands. The sum of the constrained land shall be determined as indicated in Figure B-1. Where more than one type of constrained land overlaps, the constrained land with the higher percentage deduction shall apply.

Figure B-1

Constraint		Percent Constrained Area to be Deducted (multiplier)
1	Land within rights-of-way of existing public streets, or within the rights-of-way for existing or proposed over-head utility lines.	100 percent (1.00)
2	Land under existing private streets.	100 percent (1.00)
3	Wetlands	95 percent (0.95)
4	Floodways within 100-year floodplain	100 percent (1.00)
5	Floodfringe (floodplain excluding floodways or wetlands within floodplains)	50 percent (0.50)
6	Prohibitively steep slopes (25%+)	80 percent (0.80)
7	Precautionary slopes (15% to 25%)	30 percent (0.30)
8	Extensive rock outcroppings (>1,000 s.f. in area)	90 percent (0.90)
Total		Adjusted Constrained Lands
Formula: Adjusted Constrained Lands = sum of 1 through 8

4.2 Adjusted Tract Area The Adjusted Tract Area (ATA) shall equal the Gross Tract Area (GTA) minus the Adjusted Constrained Lands as determined in subsection 4.1 above. Formula: Adjusted Tract Area = Gross Tract Area - Adjusted Constrained Lands
4.3 Permitted Dwelling Units The maximum number of permitted dwelling units equals the Adjusted Tract Area multiplied by the density factors stated in Section for each development option (i.e., RC-1=0.33, RR-1=0.55, R1-1=1.0, and R1-2=0.6). Formula: Maximum Dwelling Units = Adjusted Tract Area x Density Factor
4.4 Minimum Open Space The minimum open space required equals the percentage of the adjusted tract acreage depending on development option chosen (i.e., RC-1=70%, RR-1=60%, and R1-1=50%) plus the adjusted constrained lands. Formula: Open Space = Percent of Adjusted Tract Acreage + Adjusted Constrained Lands

Sample calculation for the RR-1 Option

Tract Conditions: 100 acre gross tract; 16 acres of adjusted constrained lands. 84 acre adjusted tract area (100 acres gross tract area minus 16 acres of adjusted constrained lands).

Open Space requirement = (required open space x adjusted tract area) + adjusted constrained lands (60% open space x 84 acres) + 16 acres = 66.4 acres

Maximum number of units = adjusted tract area x density multiplier (0.55) 84 acres x 0.55 = 46 dwelling units

4.0 Example 2 — Open Space and Density/Dwelling Unit Calculation

In this example, densities of Districts R-1, R-2, and R-3 are listed from lowest density district to highest density district.

4.1 Restricted Open Space
- 4.1.1 Percentage of the gross tract area stipulated for the applicable zoning The minimum restricted open space shall not be less than the district as follows:
  District Minimum Restricted Open Space:
  
  R-1 Sixty-five (65) percent
  
  R-2 Fifty-five (55) percent
  
  R-3 Fifty (50) percent
  
  Where a single contiguous tract of land falls into more than one zoning district, the minimum restricted open space requirement shall be met separately in each zoning district as stipulated above.

4.2 Maximum Density of Development

4.2.1 Establishment of Net Tract Area
- For the purposes of establishing the maximum permissible number of lots or dwelling units on any tract where the Conservation Subdivision Option is utilized, the Net Tract Area shall include all areas within the titled lines of a tract, excluding the following:
- Any existing or proposed area that has been set aside as a permanent right-of-way or easement for a public or private street, or for above-ground or underground utilities other than for local service.
- An area equivalent to fifty (50) percent of any area comprised of one or more of the following areas and excluding any area already excluded by subsection a, above.
  - 1. Any area within the Flood Hazard District.
  - 2. Any area comprising wetlands under the jurisdiction of the U.S. Army Corps of Engineers and/or the Pennsylvania Department of Environmental Protection; the municipality reserves the right to retain a qualified consultant to ascertain the extent of jurisdictional wetlands, reasonable and necessary charges therefor to be borne by the applicant.
  - 3. Any area of steep slope exceeding twenty-five (25) percent, where the ratio of the change in elevation over the horizontal distance as measured between consecutive two (2) foot contour intervals exceeds 25/100.

4.2.2 Calculation of Maximum Density

The maximum permissible number of lots or dwelling units on any tract utilizing the open space design option shall be calculated by multiplying the Net Tract Area in acres, as established above, by the multiplier stipulated below, rounding to the nearest whole number:

District	Density Multiplier
R-1	0.33
R-2	0.50
R-3	0.67

Sample calculation for the R-2 District

Tract Conditions: 100 acre gross tract; 84 acre net tract area (100 acres gross tract area minus 16 acres of constraints/exclusions in Section 2.1)

Open Space Requirement = 55% of gross tract area 100 acres x 0.55 = 55 acres

Maximum Number of Units = net tract area x density multiplier (0.50) 84 acres x 0.50 = 42 dwelling units

*Note: The density calculation section of a conservation subdivision ordinance can also include provisions for density bonuses (for example, for the provision of publicly accessible open space or affordable housing).

The dimensional standards apply to the individual building lots within the conservation subdivision and are particularly applicable to the Single-Family Detached and Mixed Residential Conservation Design Option (see Section 3.0- permitted uses). Minimum lot sizes and building setbacks can be established for each type of dwelling unit. Another option is to specify minimum separation distances between proposed dwellings rather than requiring a minimum lot size. This approach provides the maximum flexibility for subdivision design layout, but may be more difficult to review and administer. Maximum impervious surface limitations can be specified here. This section might also include minimum setbacks around the perimeter of the conservation subdivision tract, however, the configuration of the open space is dealt with in the next section.

5.0 Dimensional Standards

Under the Single-Family Detached Conservation Design Option and Mixed Residential Conservation Design Option, lot boundaries shall be shown, but in lieu of a minimum lot area, the following lot and yard area regulations shall apply to any principal buildings or any other buildings whether the buildings are located on the same lot or on a separate lot:

5.1 Minimum separation distances between buildings, except as provided for accessory buildings in Section 5.3 below, shall be as follows:
- 5.1.1 The minimum separation shall be fifty (50) feet measured perpendicularly from the rear wall of any residential building at any point to any other building not accessory to such residential building.
- 5.1.2 Minimum separation distances from any other points between buildings shall be twenty (20) feet.
5.2 Principal or accessory buildings shall be located no less than eight (8) feet from any lot line.
5.3 Minimum separation at any point between accessory buildings (e.g., detached garages or sheds) and the principal buildings to which they are accessory shall not be less than twelve (12) feet; minimum separation distances between accessory buildings and any other building shall comply with Section 5.1 above.

Municipalities may want to allow accessory buildings on smaller lots than 10,000 s.f. as they view appropriate.

5.4 Accessory buildings shall not be permitted on residential lots of less than ten-thousand (10,000) square feet in gross area.
5.5 No exterior windows (except for clerestory windows), doors, or other openings shall be permitted in any portion of principal or accessory buildings located less than five (5) feet from any lot line.
5.6 Where greater setbacks do not otherwise apply, front-facing garages, whether attached or detached, shall be set back a minimum of thirty-five (35) feet from the edge of the right-of-way or from the sidewalk, whichever results in the greatest setback. In addition, front-facing garages shall be set back a minimum of eight (8) feet from the front façade of the dwelling unit. If the front façade is not uniform, the eight (8) foot setback shall be measured from the point of the façade nearest the street.

Provisions for maximum impervious surface should also be included in the ordinance standards. A sliding scale or formula is recommended because of the many variations in lot sizes possible.

5.7 Minimum setback from the edge of the cartway (or outside edge of the curb if applicable) of any new local road which is part of the proposed subdivision/land development shall not be less than twenty-five (25) feet, except as provided for in Section 5.6 above. Where abutting a new arterial or collector road within the proposed subdivision/land development, the setbacks shall be as follows: arterial road: seventy-five (75) feet; collector road: sixty-five (65) feet.
5.8 In addition to the individual building lot setback requirements, new structures shall meet the following guidelines for minimum setbacks whether the adjacent use is on or off the site. These setbacks may be modified subject to approval by conditional use:
- 5.8.1 From external road rights-of-way: 75 feet
- 5.8.2 From other tract boundaries: 50 feet
- 5.8.3 From crop or pasture land: 100 feet
- 5.8.4 From buildings or barnyards housing livestock: 250 feet
- 5.8.5 From active recreation areas such as courts or playing fields: 100 feet
5.9 For each lot created under this development option, the applicant shall indicate a building envelope which complies with the dimensional standards above and with the minimum buildable area requirements of Section 902, Natural Resource Conservation Overlay District.

6.0 Open Space Configuration and Use

This section provides guidance on the preferred configuration of the open space and lists the types of uses permitted within the open space. Uses not permitted in or which may not count towards the required the open space are also addressed in this section.

6.1 The following guidelines shall be used when planning and designing the subdivision layout:
- 6.1.1 Building design and siting shall be configured to minimize the development's visual impact on the landscape, e.g., siting buildings in the lower portion of the site.
- 6.1.2 Views of house lots from exterior roads and abutting properties shall be minimized by the use of changes in topography, existing vegetation, or additional landscaping which meets the landscaping and screening requirements of Section of the Subdivision and Land Development Ordinance.
- 6.1.3 Where possible, natural screening shall be used or extended to screen buildings and other improvements Where possible, improvements shall be located behind woodlots or tree rows, or new woodlots or tree rows.
- 6.1.4 New plantings in landscape screenings shall be native species and arranged in a naturalized density and groupings.
- 6.1.5 New buildings should use architecture, construction materials, and colors consistent with the desirable characteristics of existing buildings on the site or within the adjacent area.
6.2 Configuration of Protected Open Space — Areas designated for open space shall be configured to meet the following purposes and guidelines:
- 6.2.1 Maximize the conservation of site features identified as having particular environmental, historical, or recreational value, including: steep slopes, floodplains, watercourses, wetlands, mature trees or specimen vegetation, areas included in the Pennsylvania Natural Diversity Inventory, woodlands, hedgerows, historic sites or structures, and other noted landscape features as identified in the Comprehensive Plan, Open Space, Recreation, and Environmental Resources Plan, and other relevant studies.
- 6.2.2 Preserve agricultural uses and Class I, II, and III agricultural soils as defined by the U.S. Department of Agriculture.
- 6.2.3 Minimize the view of the built portion of the subdivision from public roads so that the post-development view of the site from the road is as similar to the pre-development view as possible. (See Section 6.3, Scenic Viewshed Protection.)
- 6.2.4 Provide links to open space or recreation areas on abutting parcels, including pedestrian trails, to create linked pathway corridors in the municipality. Open space shall be configured so that it is adjacent to or directly across the street from as many residential lots or units as possible.
- 6.2.5 Implement applicable open space and recreation plans of any federal, state, county, or regional organization, local municipality, or recognized private organization to complement and extend such resources in the municipality, where such plans are deemed to be acceptable and desirable to the municipality. Open space may also serve the purpose of providing buffers or transitional areas between the subdivision and adjoining parks, farms, or protected lands.
- 6.2.6 Improve accessibility for the general public to recreational facilities or open space resources and promote their use among residents. To meet this purpose, pedestrian pathways shall be provided, where deemed appropriate by the municipality, to provide the potential for interconnecting pathway and sidewalk systems in the municipality.
- 6.2.7 Size and Dimension of Open Space
  Where open space is designated as separate, noncontiguous parcels, no single parcel shall be less than ten-thousand (10,000) square feet in area. The ratio of the longest to shortest dimension of an open space parcel shall not exceed five (5) to one (1). Exceptions to these standards are permitted where a portion of the open space is:
  - 6.2.7.1 A connecting strip between larger open space parcels, or a trail or portion of a trail network, in which case the minimum horizontal dimension shall be twenty (20) feet.
  - 6.2.7.2 Contiguous to a watercourse.
  - 6.2.7.3 Connects or includes sections designated in the Comprehensive Plan, Open Space, Recreation, and Environmental Resources Plan, or Official Map.

Additional screening may be necessary when buffering cannot be fully achieved through the configuration of the open space. Municipalities can also address scenic viewshed protection on a larger scale through the establishment of a Scenic Overlay District. See the Maintain Existing Character and Context design element for ordinance considerations and sample language.

6.3 Scenic Viewshed Protection — Improvements such as buildings, structures, and parking areas shall be located or screened to minimize the impact on scenic views and the disturbance of natural features. The applicant shall undertake a scenic viewshed inventory and analysis to address the impact of the new development on scenic resources.
- 6.3.1The scenic inventory shall include:
  - 6.3.1.1 Roadway viewshed and location of scenic resources that will be affected by development of the site. Scenic roadways and viewsheds previously identified or designated by the municipality shall be included in the inventory.
  - 6.3.1.2 Important view sight lines from the roadway that should remain open to the scenic resources.
  - 6.3.1.3 Existing screening that could be preserved or enhanced to better conceal new development such as tree rows, woodlots, mature landscaping plant masses, walls and fences, and existing buildings or structures.
  - 6.3.1.4 The site vicinity characteristics that are desirable to simulate, such as building architecture, construction materials and color, and native vegetation.
- 6.3.2 Based on the results of the inventory, the applicant shall determine:
  - 6.3.2.1 Areas outside of the viewshed where development is most appropriately located.
  - 6.3.2.2 Critical visual areas that will remain open so scenic resources can be seen from the best viewpoint.
  - 6.3.2.3 Less critical visual areas within the viewshed where development can be placed if the area outside of the viewshed is insufficient to accommodate the permitted development. These areas are to be located to the side of the critical views or behind existing or proposed screening.
6.4 Uses Permitted in the Open Space — Areas designated as protected open space may be used for the following purposes:
- 6.4.1 Woodlands, meadows, watercourses, floodplains, wetlands, steep slopes, or similar conservation areas or wildlife habitat maintained in its natural state.
- 6.4.2 Park or outdoor recreation areas, including existing or proposed trails, community gardens, and other low-impact assive recreation uses.
- 6.4.3 Active recreation areas*, such as playgrounds, fields, and courts, provided such areas do not consume more than fifty (50) percent or a maximum of five (5) acres of the required minimum open space. The minimum pervious parking areas necessary to serve these uses shall be permitted in the open space. Active recreation areas shall be located so as to have the least impact on adjacent residential uses.
- 6.4.4 Agricultural uses and structures specifically serving and associated with these uses may be located in the permanent open space. However, the footprint of the structures shall not be counted towards the minimum required open space.
- 6.4.5 Historic structures may be located in the permanent open space. However, the footprint of the building and any associated outbuildings or impervious surfaces shall not be counted towards the minimum required open space.
- 6.4.6 Drip, spray application, or subsurface treatment of wastewater solely from the tract development or, where applicable, that portion of naturalized storm water management facilities determined to be eligible as open space (see Section 6.5.2). Structural development or impervious surface associated with sewage treatment facilities shall not be calculated as part of the minimum required common open space area.
- 6.4.7 Stormwater management facilities that are designed to infiltrate stormwater, blend in with the surrounding landscape, and serve as an amenity. Infiltration basins, rain gardens, vegetated swales, and constructed wetlands are examples of facilities that may be eligible for inclusion in open space calculations. These facilities should be incorporated into the open space design with trails, benches, overlooks, attractive fencing, and native vegetation. Structural development or impervious surface associated with stormwater management facilities, including buildings and stormwater detention basins, spillways, and level spreaders, shall not be calculated as part of the minimum required common open space area.
- 6.4.8 Easements for drainage, access, sewer or water lines, wells, and underground utility rights-of-way. Above ground utility or street rights-of-way may traverse the open space but shall not count towards the minimum required open space.
6.5 Limits on Constrained Lands in the Open Space — No more than sixty (60) percent of common open space shall be comprised of floodplains, wetlands, steep slopes in excess of twenty five (25) percent, or the elements of sewage treatment and stormwater management facilities permitted within the open space under Section 6.4.
6.6 Accessibility of Open Space — For conservation subdivision designs that provide commonly owned open space, a minimum of twenty percent (20%) shall be accessible and usable for residents of the development for passive and/or active recreation .

This section specifies the various ownership options for the preserved open space. Typically these options include: fee simple dedication to the municipality or a private conservation organization; dedication of an easement to the municipality of a private conservation organization; or ownership by a homeowner's association. In some cases, such as when the open space is a preserved farm or an estate lot, the open space may stay in private ownership with a permanent restriction against future development.

7.0 Open Space Ownership

Subject to permanent conservation restrictions, designated open space land in any subdivision may be owned by a homeowners' association, the municipality, a land trust, another conservation organization recognized by the municipality, or by a similar entity approved by the municipality, or may remain in private ownership.

7.1 Fee Simple Dedication to the municipality — The municipality may, but shall not be required to, accept dedication in the form of fee simple ownership of designated open space land. Where the municipality accepts dedication of designated open space land that contains improvements, the governing body may require the posting of financial security to ensure structural integrity of said improvements as well as the functioning of said improvements for a term not to exceed eighteen (18) months from the date of acceptance of dedication. The amount of financial security shall not exceed the actual cost of installation of said improvements plus fifteen (15) percent.
7.2 Homeowners' Association — The designated open space land and associated facilities may be held in common ownership by a homeowners' association. The association shall be formed and operated under the following provisions:
- 7.2.1 The developer shall provide the municipality with a description of the association, proof of incorporation of the association, a copy of its bylaws, and satisfactory proof of adoption thereof, a copy of the declaration of covenants, easements or restrictions or similar document(s) regulating the use of the property and setting forth methods for maintaining the open space.
- 7.2.2 The association shall be organized by the developer and operated with financial subsidization from the developer before the sale of any lots within the development.
- 7.2.3 Membership in the association shall be mandatory for all purchasers of homes therein and their successors. The conditions and timing of transferring control of the association from developer to the homeowners shall be identified.
- 7.2.4 The association shall be responsible for maintenance and insurance on open space owned by the association, enforceable by liens placed by the homeowners' association. Maintenance obligations also may be enforced by the municipality, which may place liens to recover its costs. Any governmental body with jurisdiction in the area where the development is located may place liens on the owners of the open space to collect unpaid taxes.
- 7.2.5 The members of the association shall share equitably the costs of maintaining open space owned by the association. Shares shall be defined within the association bylaws or declaration. Association dues shall be structured to provide for both annual operating costs and to cover projected long-range costs relating to the repair of any capital facilities (which shall be deposited in a sinking fund reserved for just such purposes).
- 7.2.6 In the event of a proposed transfer, within the methods here permitted, of open space by the homeowners' association, or of the assumption of maintenance of such land by the municipality, notice of such action shall be given to all members of the association.
- 7.2.7 The association shall have or hire adequate staff to administer common facilities and to properly and continually maintain the open space.
- 7.2.8 The homeowners' association may lease open space lands to any other qualified person, or corporation, for operation and maintenance of such lands, but such a lease agreement shall provide:
  - That the residents of the development shall at all times have access to the open space lands contained therein (except that access to land that is actively farmed shall be limited to times of the year when the fields are fallow);
  - That the open space lands to be leased shall be maintained for the purposes set forth in this ordinance; and
  - That the operation of open space facilities may be for the benefit of the residents only, or may be open to the residents of the municipality, at the election of the developer and/or homeowners' association, as the case may be.
- 7.2.9 The lease referred to in section 7.2.8 above shall be subject to the approval of the governing body and any transfer or assignment of the lease shall be further subject to the approval of the board. Lease agreements so entered upon shall be recorded with the Recorder of Deeds of Chester County within thirty (30) days of their execution and a copy of the recorded lease shall be filed with the secretary of the municipality.
- 7.2.10 Homeowners' association documentation approved by the municipality demonstrating compliance with the provisions herein shall be recorded with the final subdivision and land development plans, and proof of recording thereof shall be provided to the municipality prior to the issuance of any building permits for the property. At the time of preliminary plan submission, the applicant shall provide draft homeowners' association documentation with sufficient detail to demonstrate feasible compliance with this section.
7.3 Condominium Ownership — The designated open space land and associated facilities may be held in common by the unit owners as a condominium, the documents for which shall be approved by the governing body. Such condominium documents shall be in conformance with the Pennsylvania Uniform Condominium Act of 1980, as amended. All common open space land shall be "common elements" or "limited common elements." To the degree applicable, condominium documents shall comply with the provisions of section 7.2 above. Condominium documents shall be recorded with the final subdivision and land development plans. At the time of preliminary plan submission, the applicant shall provide draft condominium documents with sufficient detail to demonstrate feasible compliance with this section.
7.4 Dedication of Easements to the Municipality — The municipality may, but shall not be required to, accept easements for public use of any portion or portions of designated open space land. In such cases, title to the land which remains in common ownership by condominium unit owners, homeowners' association, or private conservation organization are held by the municipality.
7.5 Private Conservation Organization or the County — With the permission of the municipality, an owner may transfer either fee-simple title of the open space or easements on the open space to a private, nonprofit organization recognized by the municipality, among whose purposes it is to conserve open space and/or natural resources, or the County, provided that:
- 7.5.1 The organization is acceptable to governing body, and is a bona fide conservation organization with perpetual existence;
- 7.5.2 The conveyance contains appropriate provision for proper reversion or retransfer in the event that the organization becomes unwilling or unable to continue carrying out its functions;
- 7.5.3 The open space is permanently restricted from future development through a conservation easement and the municipality is given the ability to enforce these restrictions; and
- 7.5.4 A maintenance agreement acceptable to the governing body is entered into by the developer and the organization.
7.6 Non-Common Private Ownership of Designated Open Space
- 7.6.1 Designated open space may be retained in ownership by the applicant or may be transferred to other private parties subject to compliance with all standards and criteria for designated open space herein. Such open space shall be permanently restricted from future development through a conservation easement and the municipality shall have the ability to enforce these restrictions.
- 7.6.2 All or portions of the designated open space may be included within an individual lot where deemed appropriate by the governing body (for example, in the case of a working farm). The governing body may require that responsibility for maintenance of the privately owned designated open space be conferred upon the owner(s) of said open space.

This section requires that the applicant provide an open space management plan. The plan should specify how the open space will be maintained and the personnel and financial resources necessary to properly maintain it. The plan should be recorded with final subdivision plans at the office of the County Recorder of Deeds.

8.0 Open Space Maintenance Standards

Unless otherwise agreed to by the governing body, the cost and responsibility of maintaining common facilities and open space shall be borne by the property owner, condominium association, homeowners' association, or conservation organization as outlined below.

8.1 Required Open Space Management Plan — The applicant shall provide a plan for the long term management of the designated open space which is to be created as part of the development, including maintenance and management of any wastewater disposal, water supply, stormwater management or any other common facilities which may be located within areas of designated open space.
- 8.1.1 Open Space Management Plan Information — Such a plan shall include a narrative discussion of the following items:
  - The manner in which the designated open space and any facilities included therein will be owned and by whom it will be managed and maintained;
  - The conservation, land management and agricultural techniques and practices which will be used to conserve and perpetually protect the designated open space, including conservation plan(s) approved by the Chester County Conservation District where applicable;
  - The professional and personnel resources that will be necessary in order to maintain and manage the property;
  - The nature of public or private access that is planned for the designated open space; and
  - The source of funds that will be available for such management, preservation and maintenance on a perpetual basis.
- 8.1.2 At the time of preliminary plan submission, the applicant shall provide a draft open space management plan with sufficient detail to demonstrate feasible compliance with the provisions required under this section.
- 8.1.3 The management plan shall be recorded with the final subdivision and land development plans, in the office of the Recorder of Deeds of Chester County.
- 8.1.4 The board may require as a condition of subdivision and/or land development approval that appropriate management contracts be established as evidence of the ability to adhere to the provisions of the approved management plan.
- 8.1.5 To allow for the changing needs inherent in the perpetual management of land, the management plan shall contain a provision to the effect that it may be changed by written application to the governing body. Approval of such application by the board shall not be unreasonably withheld or delayed, so long as:
  - The proposed change is feasible, is consistent with the purposes of preservation of open space set forth in this section and with the approved subdivision and land development plans; and
  - The plan for such change avoids a likelihood of the obligation for management and maintenance of the land falling upon the municipality without the consent of the governing body.
8.2 Provisions for Maintenance of Designated Open Space
- 8.2.1 In the event that a homeowners' association, condominium, any successor organization, or any owner of the open space shall, at any time after establishment of a development containing open space land, fail to maintain such land in reasonable order and condition in accordance with the development plan, the open space management plan and/or association or condominium documents as applicable, the municipality 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 land in reasonable order and condition.
- 8.2.2 Failure on the part of a homeowners' or condominium association to adequately maintain the open space land in reasonable order and condition shall constitute a violation of this ordinance. The municipality is hereby authorized to give notice, by personal service or by United States mail, to the owner or occupant, as the case may be, of any violation, directing the owner to remedy the same within twenty (20) days.
- 8.2.3 Upon default by any owner, homeowners' association, conservation organization, or other entity responsible for maintenance of designated open space and/or associated facilities, where such maintenance is required under the terms of the open space management plan, homeowners' association or condominium documents, any subdivision and/or land development plan for the property, the zoning approval for the property, or under any applicable requirements of any municipal ordinances, permits or approvals, or where such maintenance is otherwise necessary to abate a nuisance, emergency, hazard or other condition threatening persons or property or the public health, safety or welfare, the municipality may, but shall not be obligated, to take the following actions:
  - Upon thirty (30) days advance written notice to the person, association or entity responsible for such maintenance (or any such lesser period as may be specified in the notice in instances of emergency) and the failure of the responsible individual, entity or association within such thirty (30) day period (or such lesser period in the event of an emergency) to perform the necessary maintenance and otherwise remedy the condition set forth in the municipality's notice, to enter upon the open space, accessing the same through any other lands of such entity, association or individual as may be necessary, to perform such maintenance and take any other action necessary to correct the condition provided in the municipality's notice.
  - Any and all costs incurred by the municipality in connection with such notice and maintenance shall be paid by the responsible individual, entity or association within ten (10) days after written demand by the municipality. Upon failure of the responsible entity, association or individual to pay such costs by the time required, there shall be added thereto interest at the rate of fifteen (15) percent per annum as well as all costs incurred by the municipality in collection thereof.

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