§ 170.20 Neighborhood Open Space Requirements

The neighborhood open space requirements ensure that adequate usable neighborhood open space, parks, and recreation facilities are provided in a manner consistent with the neighborhood open space plan, as amended, by using a calculable method to equitably apportion the costs of acquiring and developing land for those purposes. The provisions of this section require development, which creates increased needs for neighborhood open space (“open space impact”), to pay a proportionate share of the City’s capital improvements to fulfill the open space impact. Usable neighborhood open space includes pedestrian-bicycle trails (preferably located within natural greenway systems) and neighborhood parks that serve nearby residents. Portions of larger community parks may be adapted for neighborhood use, but this section is not intended to fund the acquisition of community parks or large playing fields for organized sports. This section is also intended to encourage, wherever reasonably feasible, the dedication of sensitive areas in conjunction with useable open space.

1. Applicability. As a condition of approval for residential subdivisions, commercial subdivisions containing residential uses, and planned developments, the applicant will dedicate land, pay a fee in lieu of land, or a combination thereof, for park, greenway, recreational and open space purposes, as determined by the City and in accordance with the provisions of this section.

2. Dedication of Land.

A. Amount Of Land To Be Dedicated. The amount of land will be determined by first calculating the entire size of the land area of the proposed development as shown on the preliminary plat or site plan and then to require dedication or reservation of five percent of this amount for parks and open space.

B. Nature Of Land To Be Dedicated. Except as otherwise required by the City, all dedications of land will meet the following criteria:

(1) Usability. At least 90 percent of the land required to be dedicated must be located outside of floodways, lakes, or other water bodies, areas with slopes greater than 15 percent, wetlands subject to federal or State regulatory jurisdiction and other areas the City reasonably deems unsuitable for neighborhood open space due to topography, flooding, or other appropriate considerations. The City encourages the dedication of natural land that includes lakes, ponds, creeks, other water bodies, wetlands falling under the jurisdiction of State or federal agencies, and other sensitive areas including woodland areas, both as 10 percent in addition to the dedicated land required by this section, if sufficient abutting land is dedicated as a usable, public recreation area or park.

(2) Unity. The dedicated land must form a single parcel of land, except where the City determines that two or more parcels or greenways-trails would best serve the public interest, given the type and distribution of neighborhood open space needed to adequately serve the proposed development. If the City determines that two or more parcels would best serve the public interest, the City may require that such parcels be connected by a dedicated strip of land at least 20 feet wide in order to provide access and continuity between said parcels.

(3) Location. The dedicated land must be located so as to reasonably serve the recreation and open space needs of the residents of the subdivision or planned development.

(4) Shape. If a sufficient amount of land is dedicated to accommodate recreational facilities and activities, such as fields, courts, or playground equipment, the shape of the dedicated land must be suitable for such facilities and activities. Linear open space should be of sufficient width to accommodate trails and adjacent greenways.

(5) Access.

a. Greenways and Trails. Public access to greenways and trails must be provided by a public access easement at least 20 feet in width. In addition, greenways and trails must be connected to existing or proposed greenways and trails on adjacent property.

b. Parks. Public access to the dedicated land to be used for parks must be provided either by adjoining public street frontage or by a dedicated public access easement at least 50 feet in width, which connects the dedicated land to a public street or right-of-way.

c. The grades adjacent to existing and proposed streets must permit reasonable access to the dedicated land. The parcel must be safely accessible to pedestrian traffic.

(6) Responsibility For Site Preparation.

a. The City may require the subdivider or developer to grade and seed those portions of tile dedicated land to be improved prior to dedication of the property and prior to the City’s acceptance of the dedication.

b. Where the dedicated land is located adjacent to a street, the subdivider or developer will remain responsible for the installation of utilities, sidewalks and other improvements required along that street segment.

c. Prior to dedication, the subdivider or developer will be responsible for restoring satisfactory ground cover and controlling erosion on land to be dedicated that has been disrupted as a result of development activities by the subdivider or developer.

C. Procedure For Dedication Of Land.

(1) The dedication of land must be reviewed as part of the preliminary subdivision plat or preliminary planned development plan, whichever is applicable. The subdivider or developer must designate the area or areas of land to be dedicated pursuant to this article on the preliminary subdivision plat or planned development plan. Where wetlands have been delineated on the property, the preliminary subdivision plat or planned development plan must also identify the boundaries of such wetlands.

(2) Upon receipt of the preliminary subdivision plat, all reviews will be done by the Planning and Zoning Commission according to Planning and Zoning Commission procedures.

3. Payment of Fees in Lieu of Land Dedication.

A. General. The payment of fees in lieu of dedication of land may occur at the request of the subdivider or developer with approval by the City, or may be required by the City. The payment of fees in lieu of land dedication must be reviewed and approved as part of the preliminary subdivision plat or preliminary planned development.

B. Request by Subdivider or Developer.

(1) If a payment in lieu of open space is requested, the subdivider or developer must include such request in a letter submitted with the application for a preliminary subdivision or preliminary planned development, whichever is applicable.

(2) The Clerk will forward a copy of the preliminary subdivision plat or preliminary planned development, along with a copy of the letter requesting payment of fees in lieu of land dedication to the Planning and Zoning Commission.

(3) The Planning and Zoning Commission will consider the request for payment of fees in lieu of land dedication during the subdivision or planned development review process and forward its recommendations to the Council.

C. Determination of Fees in Lieu of Dedication Criteria. The City may, at its discretion, require the payment of fees in lieu of the subdivider dedicating land, if the City finds that all or part of the land required for dedication is not suitable for public recreation and open space purposes, or upon a finding that the recreational needs of the proposed subdivision can be met by other park, greenway, or recreational facilities planned or constructed by the City within reasonable proximity to the subdivision. The City will consider the following factors in making its determination:

(1) Recreational and open space elements of the Comprehensive Plan, as amended, and the relation of the subdivision to the proposed open space and recreational areas;

(2) Topographic and geologic conditions of the land available for dedication;

(3) Size, shape, location, and access to the land available for dedication;

(4) The character and recreational needs of the neighborhood where the subdivision is located;

(5) The costs of developing open space and recreational areas in the subdivision;

(6) The actual or potential development of open space and recreational areas on land adjacent to the subdivision which will serve the needs of the subdivision;

(7) Recommendations of staff, the parks and recreation commission, and the Planning and Zoning Commission; and

(8) Any other relevant information.

D. Time of Payment. Fees in lieu of dedication must be paid in full by the subdivider or developer prior to the issuance of the first Building Permit for a lot in the subdivision or planned development.

E. Amount of Payment. The cash value of said land will be determined by taking the total purchase price or cost of all the land in the proposed subdivision and charge the owner the proportionate value of the land area so designated; based upon such purchase price or cost; provided such purchase price or cost is the current fair and reasonable value of the land. If such purchase price or cost does not reflect the current fair value of the land, the fair value of said land must be determined by an impartial appraisal, and in such manner as may be designated by the Council, cost for said appraisal to be shared equally between the subdivider and the City.

4. Requiring Both Dedication of Land and Payment of Fee. The City may, at its discretion, require a subdivider or a developer of a planned development to dedicate a portion of the land required under the formula set forth in this chapter, and also to pay a fee in lieu of dedication for the remaining portion of the land by said formula. The fee for the remaining portion will be determined by a qualified real estate appraiser who is acceptable to both the City and developer. The City and subdivider or developer will equally share the appraisal costs.

5. Use of Funds.

A. All funds so levied, assessed and collected by the City will be deposited in a special fund to be known as the “Special Fund for the Acquisition and Development of Public Service Areas, Open Space and Recreational Facilities,” and that said funds so levied and collected must be used for such purposes at such places and in such a manner as will be approved, ordered and directed by the Council or their designee. Any interest accumulated upon such funds must be added to the “Special Fund” and be used only for acquisition and developments of open space and recreational facilities.

B. If the City has not spent the funds by the last day of the five year period or, if extended, by the last day of an additional five years, the City must within 90 days thereafter, mail to the property owner, at the address on file with the County Treasurer’s office, a proportional refund based on the percentage of the platted lots they own of the total platted lots in the subdivision or planned development. The subdivision agreement or development agreement for each subdivision or planned development for which the developer has made payments in lieu of dedication must inform all property owners and successors in interest to properties in the subdivision or planned development of the right to a refund as provided herein.