Open space in conservation developments
(a) The open space shall be established as a lot or lots separate and distinct from the lots intended for residential and accessory uses, and from land dedicated as street rights-of-way.
(b) The minimum amount of required open space area shall be based on a percentage of the land suitable for development in the entire conservation development as provided in the table below. None of the minimum required open space area shall include land unsuitable for development as defined in article I, section 21-22.
Zoning District Minimum Amount of Required Open Space VLDR/200 75% LDR/120 65% RR/R80 60% NR/R40 50% VR/R20 35% PVD 30%
(c) This minimum required area shall be in addition to any open space used for stormwater drainage facilities. Provided, however, that the planning commission may allow stormwater drainage facilities to count toward the minimum required open space area if it finds that the drainage areas are designed as a fully integrated part of an overall open space landscape plan which incorporates trails, active or passive parks, landscaped site features, streambelts or greenways, and are designed to facilitate infiltration and recharge of water, and that such facilities are not in conflict with the intent and purpose of a conservation development as stated in article 13.2 of the subdivision and land development regulations, or with the general purposes of these regulations.
Where stormwater drainage facilities are approved by the commission to be located within common open space areas, the commission shall require legal documents to be recorded along with the approved plat that clearly specify maintenance responsibilities. In addition, the applicant shall prepare for approval by the commission a maintenance plan for the facilities as part of the open space use and management plan as provided in article 13.12.a of the subdivision and land development regulations.
(d) Open space provided by a conservation development for public or common use, shall either:
(1) Be conveyed to the town and accepted by the town for park, open space, agricultural, or other permitted use or uses; or
(2) Be conveyed to a nonprofit organization, the principal purpose of which is the conservation of open space or resource protection; or
(3) Be conveyed to a corporation or trust owned or to be owned by the owners of lots or units within the conservation development or owners of shares within a cooperative development. If such a corporation or trust is used, ownership shall pass with conveyances of the lots or units; or
(4) Remain in private (non-common) ownership if the use is limited to agriculture, habitat or forestry, and, in accordance with the comprehensive plan and zoning ordinance, that private ownership is necessary for the preservation and management of the agriculture, habitat or forest resources. The planning commission may limit the amount of open space that may remain in private ownership where necessary to contribute to a connecting greenway system or to provide public access to open space, as provided in the comprehensive plan.
(e) In any case where the land is not conveyed to the town, a restriction, in perpetuity, enforceable by the town or by any owner of property in the land development project in which the land is located shall be recorded providing that the land shall be kept in the authorized condition(s) and not be built upon or developed.
In addition, in any case where the land is not conveyed to the town, the development rights and other conservation easements on the land may be held, in perpetuity, by a nonprofit organization, the principal purpose of which is the conservation of open space or resource protection.
(f) Buildings, structures, parking areas or other impervious improvements which are accessory to and subordinate to a permitted open space use, may be located on any open space lot provided that, in all cases, they occupy no more than five percent of the total open space area of the conservation development.
(g) All open space, regardless of whether it is conveyed to the town, shall be protected against further development and unauthorized alteration in perpetuity by appropriate deed restrictions, and by the grant of a conservation or preservation restriction to the town, pursuant to RIGL tit. 34, ch. 39, as amended. In addition, the perpetual maintenance of all open space shall be guaranteed by appropriate deed restrictions and by the grant of a conservation or preservation restriction to the town, pursuant to RIGL tit. 34, ch. 39, as amended. The planning commission or administrative officer shall approve the form and content of all deed restrictions at the time of final approval of the subdivision. Every deed restriction providing a maintenance guarantee shall contain the following provision:
"If the owners, or their successors or assigns fail to maintain the open space, the town may perform any necessary maintenance and enforce the payment for such costs, including reasonable attorneys' fees, by an action at law or in equity against the owners or their successors or assigns."
(Ord. No. 06-06, § 4, 4-10-2006)