§ 22-500. Parks and Recreation., Part 5. OPEN SPACE AND NATURAL RESOURCES, Chapter 22. Subdivision and Land Development, Municipal Code, Code of Ordinances, Phoenixville

Developers shall provide recreation facilities and open space land in the amount and character prescribed in the Comprehensive Plan and/or the Zoning Ordinance.

Conservation of open space.

Environmentally sensitive features should be conserved based on the natural tolerances to encroachment and development as follows:

	Natural Feature With Environmental Constraint	Minimum Percentage of Feature to be Preserved
	Floodplains	100%
	Watercourses	100%
	Wetlands	100%
	Ponds	100%
	Stream buffers	100%
	Steep slopes (15% to 25%)	70%
	Very steep slopes (over 25%)	80%
	Woodlands	50%

Where features overlap, the greater percentage shall be conserved. The percentage of each feature is the extent that it shall not be altered, regraded, filled or built upon. The land shall be permanently restricted by easement from further development. The deed restrictions shall be in a form acceptable to the Borough.

Open space dedication criteria and standards.

Lands shall be dedicated to the Borough according to the provisions of the Borough Zoning Ordinance, § 27-407, regarding minimum open space requirements.

(1)

In residential developments proposed to contain 20 or more dwelling units, the applicant shall set aside one acre per 20 units or fraction thereof for open space and recreational purposes.

Should the amount of land required to be utilized for parks and/or recreation purposes exceed the required land for dedication regarding open space requirements, the lesser amount shall apply.

Nothing herein shall be construed as limiting the ability of the Borough Council, based upon the recommendation of the Borough Planning Commission, to waive all or a portion of the open space set-aside requirements.

Location and criteria for dedicated open space. Lands to be dedicated shall:

Comply with the open space criteria set out in the Borough Zoning Ordinance.

Editor's Note: See Ch. 27, Zoning.

Implement the findings of the regional comprehensive plan, as updated, pursuant to the authorization by Section 302 of the Pennsylvania Municipalities Planning Code, as amended.

Preserve open space to protect the environmental, scenic, historical, and cultural features of Phoenixville.

Provide a balance of facilities which can meet the various recreational needs of the residents, businesses, and industries.

Support community development and stability by providing recreation sites and open space.

Provide equitable and convenient accessibility to recreation facilities.

At the discretion of the Borough Council, provide for either active or passive recreational or open space uses or a combination thereof in accordance with furthering the objectives of the Borough Park and Recreation Plan.

Be properly delineated before occupancy permits are granted.

Acceptance and use of park and recreation land.

Any land dedicated to the Borough shall be used only for the purpose of providing park and recreational facilities and for the preservation of open space and shall be available for use by all residents of Phoenixville.

When land is dedicated, acceptance by Phoenixville shall be by means of a signed resolution to which a property description of the dedicated area shall be attached. A fee-simple warranty deed conveying the property shall be delivered to Phoenixville with title free and clear of all liens, encumbrances and conditions, excepting public utility easements.

Open space designation. All land held for open space shall be so designated on the plans. The plans shall contain the following statement for lands in the categories in Subsection 5C(1), (2), (3) and (4) below: "Open space land may not be separately sold, nor shall such land be further developed or subdivided." All plans shall further designate the use of open space, the type of maintenance to be provided and a planting plan or schedule. In designating use and maintenance, the following classes may be used:

(1)

Lawn: a grass area with or without trees which may be used by the residents for a variety of informal purposes and which shall be mowed regularly to ensure a neat and orderly appearance.

(2)

Recreation area: an area designated for a specific recreational use, including, but not limited to, tennis, swimming, shuffleboard, playfield and tot lot. Such areas shall be maintained so as to avoid creating a hazard or nuisance and shall perpetuate the proposed use.

(3)

Garden area.

(4)

Stormwater management. Surface stormwater detention or retention basins may not be counted toward required open space.

(5)

Pocket park: a small area in an urban or village center setting designated for use as open space. It may include lawn areas, decorative plantings, seating areas, or walking paths.

(6)

Public plaza: an area in an urban or village center designated as a meeting place for community residents. It may include gazebos, information stands, seating areas, decorative plantings, fountains, or other similar elements.

Alternatives to the dedication of park and recreational land. Upon agreement of both Phoenixville and the applicant, the applicant may pursue the following alternatives:

Fee in lieu. The applicant may pay a fee in lieu of dedication of park and recreational land. The amount of the fee shall be established by resolution of the Borough Council and modified from time to time, based upon the estimated market value of land meeting the standards of § 22-500, Subsection 3, for suitability for active recreation.

Improvements to other recreation sites. The applicant may, through an agreement with Phoenixville, construct recreational facilities on existing or proposed parkland that is readily accessible to residents of the proposed development as defined in § 22-500, Subsection 5. The value of such improvements shall be comparable to the fee in lieu of dedication that would have otherwise applied, based upon the applicant's estimates, as reviewed by the Borough Engineer.

Private preservation of land. The applicant may reserve land in the amount required under this chapter. Said land shall meet all the standards of § 22-500, Subsection 5, shall be available for use by Borough residents, and shall be managed and maintained in conformance with the Park and Recreation Plan, Zoning Ordinance and § 22-500, Subsection 8, referring to the maintenance requirements for private ownership of common elements.

A combination of land dedication and/or alternative approaches listed herein may be pursued, based upon an agreement between the applicant and the Borough Council.

Fee in Lieu of Open Space.

For proposals requiring a provision of open space, an applicant may, with the consent of the Borough Council, pay a fee to the Borough in lieu of the open space provision.

The amount of any fee in lieu of land for open space shall be equal to the average fair market value of the land.

Determination of the value of the land shall be the responsibility of the applicant and shall result in a reasonable value acceptable to the Borough Council.

All funds collected in lieu of land shall be kept in a Borough open space capital reserve fund, which shall be used only for the acquisition of open space land or capital improvements for open space and park and recreational purposes within the Borough at locations consistent with the open space plans of the Borough.

Open space ownership and perpetuation. Any of the methods cited under this section may be used, either individually or in combination, to own and perpetually preserve open space that is provided in fulfillment of this Part. The final subdivision and/or land development plan shall clearly indicate the manner in which open space will be owned and administered. Following final plan approval, the open space required shall not be transferred to another entity except for the transfer to another method of ownership as outlined below. Written notice of any proposed transfer of open space shall be given to Phoenixville for approval no less than 30 days prior to such event.

Phoenixville may, but is not required to, accept fee-simple dedication of open space in accordance with § 22-500, Subsection 6.

(1)

There shall be no cost of acquisition (other than costs indicated to the transfer of ownership or the conveyance of easements, and title insurance).

(2)

Phoenixville shall agree to maintain the open space.

(3)

The open space shall be in an acceptable condition to Phoenixville at the time of dedication with regard to size, shape, location, and that any improvements are certified as satisfactory by the Borough.

(4)

The developer shall have, at no expense to Phoenixville, prepared the legal description, with metes and bounds, of the land being offered for dedication and record the legal description at the County Recorder of Deeds at no cost to the Borough.

(5)

Phoenixville shall accept the dedication by means of a signed municipal resolution to which a property description, deed, and plan of dedication area or areas shall be attached.

(6)

All dedications in fee simple shall be free and clear of any liens or encumbrances.

(7)

An agreement citing all developer obligations serving as a condition to plan approval shall be approved by the Borough and recorded with the plan at the same time as the plan is approved.

A public agency acceptable to Phoenixville may, but shall not be required to, accept the fee-simple dedication of open space, provided that the Borough approves a maintenance plan whereby the grantee agrees to and has access to maintain the open space.

Phoenixville or another public agency acceptable to the Borough may, but shall not be required to, accept the dedication of less than fee simple interests in any portion of the open space, title of which shall remain in private ownership, provided that a maintenance agreement satisfactory to the Borough is reached between the owner and the grantee.

Open space may remain or be placed in the ownership of the individual property owners and shall be restricted from further subdivision and/or land development by deed restriction, provided that:

(1)

Phoenixville shall agree to the boundaries of the open space that shall be held in private ownership.

(2)

Restrictions providing for the protection and continuance of the open space which meet municipal specifications shall be placed in the deed for each property that has the open space area within its boundaries.

(3)

A maintenance agreement suitable to Phoenixville shall be established, and the deeds to the properties that are located within the deed-restricted open space areas shall clearly state that the maintenance responsibility for the open space lies with the individual property owner.

A private, nonprofit conservation organization, among whose purposes is to conserve open space land and/or natural features, may, but shall not be required to, accept the conveyance of fee-simple or less-than-fee-simple interests in any portion of the open space, provided that:

(1)

Any private, nonprofit conservation organization intended to be the grantee of a conveyance shall be acceptable to Phoenixville as a bona fide conservation organization with perpetual existence.

(2)

Any conveyance shall contain appropriate provisions for proper reverter or retransfer in the event that the grantee becomes unwilling or unable to continue carrying out its function.

(3)

A maintenance agreement acceptable to Phoenixville shall be established between the owner and the grantee.

Open space may be controlled with condominium agreements that shall be approved by Phoenixville and be in conformance with the Pennsylvania Uniform Condominium Act. All land and facilities shall be held as a common element.

Editor's Note: See 68 Pa.C.S.A. § 3101 et seq.

Open space may be held in common ownership by a homeowners' association. In addition, the homeowners' association shall be governed according to the following:

(1)

The owner or applicant shall provide to Phoenixville a description of the organization, including its bylaws, and all documents governing maintenance requirements and use restrictions for open space, and the homeowners' association agreement shall be recorded.

(2)

The organization shall be established (with financial subsidization by the subdivider or developer if necessary) before any lot in the subdivision or building in the development is sold.

(3)

Membership in the organization and fees shall be mandatory for all purchasers of property therein and their successors.

(4)

The organization shall be responsible for the maintenance of an insurance on the open space.

(5)

The members of the organization shall share equitably the costs of maintaining, insuring, and operating the open space.

(6)

The developer for any tract proposed to contain open space shall arrange with the County Board of Assessment a method of assessment of the common facilities which will allocate to each tax parcel in the development a share of the total assessment for such open space. Where this alternative is not utilized, the organization shall be responsible for applicable real estate taxes on common facilities.

(7)

The organization shall have or hire adequate staff, as necessary, to administer, maintain, and operate the open space.

(8)

The organization shall have the power to compel contributions from property owners therein to cover their proportionate shares of the initial cost and costs associated with the maintenance and upkeep of the open space.

Guaranties and agreements. Every application for land development, whether preliminary or final, shall be accompanied by a form of agreement or agreements to be approved by Phoenixville. The agreements shall be properly recorded simultaneously with the recording of the final plan and shall specify the following:

The developer shall agree to lay out and construct all open space areas in accordance with the final plan as approved, where any or all of these improvements are required as conditions of approval, and that the improvements shall be completed within the time or times specified by Phoenixville.

The developer, at the Borough's discretion, shall be required to place in an escrow account, for a period of three years, an amount of financial security to cover the costs of providing all open space requirements established as conditions for final approval of the plan.

Phoenixville is authorized to make random inspections of nondedicated Borough open space as deemed necessary and appropriate to ensure that the developer and any successors duly perform, abide by, and complete any duties, obligations, or requirements as set forth in the final plan and/or formal agreements.

Phoenixville shall be granted the right to enforce the deed restrictions regarding the use and maintenance of the open space if the organization fails in its responsibilities. The amount of financial security necessary to reimburse Phoenixville for its expense of performing remedial measures shall be forfeited by the developer.

(1)

In the event that the entity charged with maintenance responsibilities, or any successor thereto, fails to maintain all or any portion of the open space in reasonable order and condition in accordance with the development plan and all applicable laws, rules, and regulations, Phoenixville may serve written notice upon such entity, upon the residents and owners of the uses relating thereto, setting forth the manner in which the entity has failed to maintain the open space in reasonable condition.

(2)

Such notice shall set forth the nature of corrections required and the time within which the corrections shall be made. Upon failure to comply within the time specified, the organization, or any successor organization, shall be considered in violation of its responsibilities, in which case Phoenixville may enter the premises and take corrective action.

(3)

The financial security funds in the applicant's escrow account, if any, may be forfeited, and any permits may be revoked or suspended. If the funds of the escrow account are insufficient to pay the costs of remedial maintenance, the costs of corrective action by Phoenixville shall be assessed ratably, in accordance with tax assessments, against the properties that have the right of enjoyment of the common facilities and shall become a lien on said properties. Phoenixville, at the time of entering upon such common facilities for the purpose of maintenance, shall file a notice of such lien in the office of the Prothonotary of Chester County and upon the properties affected by such lien.

All plans finally approved, whether or not recorded, shall be binding upon the developer, his heirs, executors, administrators, successors and assigns, and shall limit and control the use and operation of all open space designated in such plans to the conditions appearing in such plans and cited in any associated formal agreement for the approval thereof.