Open space/conservation land ownership options

A. Conservation land within a conservation design development subdivision shall be doubly protected through fee simple ownership and a conservation restriction, at the discretion of the Planning Board. The Planning Board may require two or more conservation easement holders, which may include a homeowners' association, or any governmental body, or a charitable corporation, association, trust, or other entity whose purposes include conservation of land or water areas or of a particular area. Open space land shall not be transferred to another entity except for transfer to another method of ownership permitted under this section.
B. Methods of ownership. Open space shall be owned in fee simple by any one or more of the following entities, as further described below: 1) homeowners' association; 2) Town of West Greenwich; 3) a land trust or other nonprofit conservation or recreation group; 4) individual owners of homestead lots, or other private individual who will use the land for open space purposes as provided by a conservation easement and conservation restriction; 5) condominium association.
- (1) Homeowners' association. Open space and related facilities may be held in common ownership (as undivided proportionate interests) by (the members of) a homeowners' association, subject to all of the provisions for homeowners' associations set forth in state regulations and statutes. In addition, the following regulations shall be met:
  - (a) The applicant shall provide the Town with a description of the organization of the proposed association, including its bylaws guaranteeing continuing maintenance of the open space and other common facilities, and all documents governing ownership, transfer of ownership, maintenance, and use restrictions for the open space, for review and approval by the Town as part of the preliminary plan. The Homeowners' association agreement shall be recorded with the final plan. The homeowners' association bylaws or the declaration of covenants, conditions, and restrictions of the homeowners' association shall contain the following information:
    - [1] The legal description of the common land and a survey map.
    - [2] A description of common facilities;
    - [3] The restrictions placed upon the use and enjoyment of the lands or facilities;
    - [4] Persons or entities entitled to enforce the restrictions;
    - [5] A mechanism to assess and enforce the common expenses for the land or facilities, including upkeep and maintenance expenses, real estate taxes, and insurance premiums;
    - [6] A mechanism for resolving disputes among the owners or association members;
    - [7] The conditions and timing of the transfer of ownership and control of land facilities to the association;
    - [8] Provisions for proper reverter or retransfer in the event that the association becomes unwilling or unable to continue carrying out its functions;
    - [9] Any other matter the developer deems appropriate.
  - (b) The proposed association shall be established by the owner or applicant and shall be operating before the sale of any lots or homes within the development.
  - (c) Membership in the association shall be mandatory and automatic for all purchasers of house lots therein and their successors in title.
  - (d) The association shall be responsible for maintenance and insurance of common open space and facilities. The members of the organization shall share equally the costs of maintaining and developing the open space, in accordance with the procedures established by them.
  - (e) The association shall be responsible for payment of all property taxes on any common facilities and open space, if applicable.
  - (f) The bylaws shall confer legal authority on the association to place a lien on the real property of any member who falls delinquent in dues. Such dues shall be paid with the accrued interest before the lien may be lifted.
  - (g) Written notice of any proposed transfer of common open space or facilities by the association or the assumption of maintenance for common facilities by another entity must be given to all members of the association and to the Town of West Greenwich and all easement holders no less than 30 days prior to such event.
  - (h) The association shall have adequate staff to administer, maintain, and operate such common facilities.
- (2) Dedication to the Town of West Greenwich. The Town of West Greenwich may, but shall not be required to, accept the dedication of fee simple title to any portion of the open space, provided that:
  - (a) There is no cost of acquisition to the Town.
  - (b) The Town agrees to and has access to maintain such open space.
  - (c) The open space is accessible to the residents of the Town.
  - (d) The land may be held by either the Town of West Greenwich or the West Greenwich Land Trust.
- (3) Nonprofit conservation organization. With permission of the Town, an owner may transfer fee simple title of the open space to a private nonprofit conservation organization, provided that:
  - (a) The conservation organization is acceptable to the Town and is a bona fide conservation organization intended to exist indefinitely.
  - (b) The conveyance contains appropriate provisions for proper reverter or retransfers in the event that the organization becomes unwilling or unable to continue carrying out its functions and responsibilities.
  - (c) A maintenance agreement acceptable to the Town is established between the owner and the organization.
- (4) Non-common private ownership/individual ownership. A private owner may own the open space land, provided that the following requirements are met:
  - (a) The use of the land is within the purposes of the conservation development.
  - (b) There shall be restrictions that the land shall not be further subdivided or developed, except in accordance with a Town-approved management plan for the intended use of the open space.
  - (c) The required open space land may be included within one or more large "homestead" lots, as provided by this chapter.
  - (d) The Planning Board may also require a conservation easement to ensure the use of the property in conformance with an approved open space management plan.
- (5) Condominium association. Common open space and facilities may be controlled through the use of condominium agreements. Such agreements shall be in accordance with relevant state and federal law, and shall be approved as to form by the Town Solicitor. All open space and common facilities shall be held as "common elements" in accordance with the condominium documents. An association of unit owners shall be formed to govern the affairs of the condominium and membership shall be mandatory. All additional requirements pertaining to a homeowners' association, as noted above, shall also apply to a condominium association.
C. A conservation easement shall also be held by the Town of West Greenwich, the West Greenwich Land Trust, or other nonprofit conservation group, as follows:
- (1) Dedication of conservation easements to the Town. The Town of West Greenwich may, but shall not be required to, accept easements for any portion of the open space land. In such cases, the open space remains in the ownership of the homeowners' association, land trust, private conservation organization, private individual, or condominium association, while the easements are held by the Town. In addition, the following regulations shall apply:
  - (a) There shall be no cost of acquisition to the Town.
  - (b) Any easements intended for public use shall be accessible to the residents of the Town.
  - (c) A satisfactory maintenance agreement shall be reached between the owner and the Town.
- (2) Conservation easement to a land trust or other nonprofit conservation organization. With permission of the Town, an owner may convey easements on any portion of the open space to the West Greenwich Land Trust, or to a nonprofit conservation organization, provided that:
  - (a) The conservation organization is acceptable to the Town and is a bona fide conservation organization intended to exist indefinitely.
  - (b) The conveyance contains appropriate provisions for proper reverter or retransfers in the event that the organization becomes unwilling or unable to continue carrying out its functions and responsibilities.
  - (c) A maintenance agreement acceptable to the Town is established between the owner and the organization.