§ 15.4. Open space.

A.

Definition. Open space is the portion of the conservation subdivision that has been set aside for permanent protection. Activities with the open space are restricted in perpetuity through the use of an approved legal instrument.

B.

Standards to determine open space.

1.

The minimum restricted open space shall comprise at least forty (40) percent gross tract area.

2.

The following are considered primary conservation areas and are required to be included with the open space, unless the applicant demonstrates that this provision would constitute an unusual hardship and be counter to the purposes of this article:

a.

The regulatory 100[-year] floodplain;

b.

Buffer zones of at least seventy-five (75) feet width along all perennial and intermittent streams;

c.

Slopes above twenty-five (25) percent of at least five thousand (5,000) square feet contiguous area;

d.

Wetlands that meet the definition used by the Army Corps of Engineers pursuant to the Clean Water Act;

e.

Populations of endangered or threatened species, or habitat for such species; and

f.

Archaeological sites, cemeteries and burial grounds.

3.

The following are considered secondary conservation areas and should be included with the open space to the maximum extent feasible:

a.

Important historic sites;

b.

Existing healthy, native forests of at least one (1) acre contiguous areas;

c.

Individual existing healthy trees greater than eight (8) inches caliper, as measured from their outermost drip line;

d.

Other significant natural features and scenic viewsheds such as ridge lines, peaks, and rock outcroppings, particularly those that can be seen from public roads;

e.

Prime agricultural lands of at least five (5) acres contiguous area; and

f.

Existing trails that connect the tract to neighboring areas.

4.

Above ground utility rights-of-way and small areas of impervious surface may be included within the protected open space but cannot be counted towards the forty (40) percent minimum area requirement (exception: historic structures and existing trails may be counted). Large areas of impervious surface shall be excluded from the open space.

5.

At least seventy-five (75) percent of the open space shall be in a contiguous tract. The open space should adjoin any neighboring areas of open space, other protected areas, and nonprotected natural areas that would be candidates for inclusion as part of a future area of protected open space.

6.

The open space shall be directly accessible to the largest practicable number of lots within the subdivision. Nonadjoining lots shall be provided with safe, convenient access to the open space.

C.

Permitted uses of open space. Uses of open space may include the following:

1.

Conservation of natural, archeological or historical resources;

2.

Meadows, woodlands, wetlands, wildlife corridors, game preserves, or similar conservation-oriented areas;

3.

Walking or bicycle trails, provided they are constructed of porous paving materials;

4.

Passive recreation areas;

5.

Active recreation areas, provided that they are limited to no more than ten (10) percent of the total open space and are not located within primary conservation areas. Active recreation areas may include impervious surfaces. Active recreation areas in excess of this limit must be located outside of the protected open space;

6.

Agriculture, horticulture, silviculture, or pasture uses, provided that all applicable best management practices are used to minimize environmental impacts, and such activities are not conducted within primary conservation areas;

7.

Nonstructural stormwater management practices;

8.

Easements for drainage, access, and underground utility lines; or

9.

Other conservation-oriented uses compatible with the purposes of this article.

D.

Prohibited uses of open space.

1.

Golf courses;

2.

Roads, parking lots, and impervious surfaces, except as specifically authorized in the previous sections;

3.

Agricultural and forestry activities not conducted according to accepted best management practices; and

4.

Other activities as determined by the applicant and recorded on the legal instrument providing for permanent protection.

E.

Ownership and management of open space.

1.

Ownership of open space. The applicant must identify the owner of the open space who is responsible for maintaining the open space and facilities located thereon. If a homeowners' association is the owner, membership in the association shall be mandatory and automatic for all homeowners of the subdivision and their successors. If a homeowners' association is the owner, the homeowners' association shall have lien authority to ensure the collection of dues from all members. The responsibility for maintaining the open space and any facilities located thereon shall be borne by the owner.

2.

Management plan. Applicant shall submit a plan for management of open space and common facilities plan that:

a.

Allocates responsibility and guidelines for the maintenance and operation of the open space and any facilities located thereon, including provisions for ongoing maintenance and for long-term capital improvements;

b.

Estimates the costs and staffing requirements needed for maintenance and operation of, and insurance for, the open space and outlines the means by which such funding will be obtained or provided;

c.

Provides that any changes to the plan be approved by the mayor and city council; and

d.

Provides for enforcement of the plan.

3.

In the event the party responsible for maintenance of the open space fails to maintain all or any portion in reasonable order and condition, [the jurisdiction] may assume responsibility for its maintenance and may enter the premises and take corrective action, including the provision of extended maintenance. The costs of such maintenance may be charged to the owner, homeowner's association, or to the individual property owners that make up the homeowner's association, and may include administrative costs and penalties. Such costs shall become a lien on all subdivision properties.

F.

Legal instrument for permanent protection.

1.

The open space shall be protected in perpetuity by a binding legal instrument that is recorded with the deed. The instrument shall be one (1) of the following:

a.

A permanent conservation easement in favor of either:

(i)

A land trust or similar conservation-oriented nonprofit organization with legal authority to accept such easements. The organization shall be bona fide and in perpetual existence and the conveyance instruments shall contain an appropriate provision for retransfer in the event the organization becomes unable to carry out its functions; or

(ii)

A governmental entity with an interest in pursuing goals compatible with the purposes of this chapter. If the entity accepting the easement is not the City of Cartersville, then a third right of enforcement favoring the city shall be included in the easement.

b.

A permanent restrictive covenant for conservation purposes in favor of a governmental entity; or

c.

An equivalent legal tool that provides permanent protection, if approved by the mayor and council.

2.

The instrument for permanent protection shall include clear restrictions on the use of the open space. These restrictions shall include all restrictions contained in this article, as well as any further restrictions the applicant chooses to place on the use of the open space.