§ 9-16. Common open space and common improvement regulations.

This section shall apply to the following features in developments (referred to in this section as "common areas") where such features are required or proposed to be held in common ownership by persons residing in or owning lots in the development or subdivision:

(1)

All lands in common open space not part of individual lots designed for the mutual benefit of persons residing in or owning lots in a development or major subdivision, whether or not such lands are required by the Gloucester County Zoning or Subdivision Ordinances;

(2)

All private streets, driveways, parking bays, sidewalks, bikeways, streetlights, street trees, landscaping, drainage facilities, lakes, easements, facilities, structures, and buildings or portions thereof as may be provided for the common use, benefit and enjoyment of the occupants of a development or major subdivision, whether or not such improvements are required by the Gloucester County Zoning or Subdivision Ordinances.

a.

Declaration of covenants and restrictions: Whenever a major subdivision includes common areas the developer shall prior to, or at the time of, recordation of the final subdivision plat, provide for and establish a nonprofit incorporated property owners association, or other legal entity under the laws of Virginia, for the ownership, care and maintenance of all such common areas.

(i)

Such association shall be governed by a declaration of covenants and restrictions (referred to in this section as the "declaration") running with the land and shall be composed of all persons having ownership within the development. Such association shall be responsible for the perpetuation, care, and maintenance of all common areas.

(ii)

The covenants shall provide that membership in the association by property owners is mandatory, and the association shall have the authority to, and shall assess its members for, such maintenance and improvements as set forth in the instrument creating the association, or as its members deem appropriate.

(iii)

Voting membership in the association shall, in the case of a residential subdivision, be comprised of a single class, with the owners of lots casting one (1) vote per lot owned. In the case of a non-residential development, voting rights shall be clearly stipulated in the declaration. In no case shall the developer of a residential development control the association beyond ten (10) years of the first lot being conveyed to a person or entity other than the developer.

(iv)

The declaration shall:

1.

Describe and identify all common areas as to location, size, use and control.

2.

Set forth the method of assessment for the maintenance of the common areas.

3.

Control the availability of the common areas, ensure that land set aside for open space may not be developed for an unapproved purpose in the future, and ensure that the common areas are maintained in their intended function in perpetuity unless and until the board of supervisors by ordinance, authorizes and approves revisions.

4.

Set forth the schedule under which the developer must convey common property and facilities to the association. Such conveyance shall generally occur within thirty (30) days of completion of the facility unless otherwise stipulated in the declaration.

5.

Provide that the association shall not be dissolved nor shall such association dispose of any common areas by sale or otherwise, except to an organization conceived and organized to own and to maintain the common areas, without first offering to convey the same to the county or other appropriate governmental agency in exchange for compensation in an amount not exceeding the appraisal of a mutually acceptable appraiser.

6.

Remain in full force and effect unless terminated in the manner set forth above.

(v)

The declaration shall provide a clearly defined procedure for the county to ensure a remedy in the event the association or any successor organizations, shall at any time after the establishment of the development fail to maintain the common areas in reasonable order and condition in accordance with the plans approved by the county.

b.

Submission requirements:

(i)

Before a developer establishes a nonprofit organization as provided by paragraph (a) above, the following documents shall be submitted to the county:

1.

The articles of incorporation or other documents which will establish or create the nonprofit property owners association.

2.

The proposed declaration of covenants and restrictions.

3.

The proposed bylaws of the association.

(ii)

The developer shall submit to the county, along with the required articles of incorporation (or similar documents) and declaration of covenants and restrictions, a certification by an attorney licensed to practice law in the Commonwealth of Virginia that the attorney has reviewed such documents and that they comply with:

1.

The requirements of this article, and identifying where each requirement is addressed;

2.

If applicable, the provisions of the Virginia Property Owners Association Act (Section 55-508 et. seq. of the Code of Virginia); and

3.

If applicable, the provisions of the Virginia Subdivided Land Sales Act (Section 55-336 et. seq. of the Code of Virginia).

The attorney shall also certify that the common areas, when conveyed to the association, will be conveyed without encumbrances or liens, other than easements for public utilities, and such other similar encumbrances as may be specifically identified in the declaration.

(iii)

The county attorney shall review and approve for consistency with the requirements of this article the certification submitted in conformance with subsection (ii) above, and the articles of incorporation (or similar documents) and the declaration of covenants and restrictions.

c.

Miscellaneous common area requirements and regulations.

(i)

Nothing contained herein shall be deemed to require the County of Gloucester to be responsible for the maintenance of any of the common areas referred to in this section.

(ii)

Relationship of residential lots to common area.

1.

Residential lots adjacent to common areas shall not be platted until the common area and any facilities thereon have been completed and the area has been conveyed (or will be conveyed contemporaneously with platting) to the association or other entity controlling such common ground.

2.

Alternatively, the zoning administrator may authorize such lots as described in paragraph (1) above to be platted provided that each person or entity to which any of these lots are subsequently conveyed prior to completion and conveyance of the common area execute a statement which clearly discloses to them what common area improvements are to be constructed, the anticipated duration of construction, and the estimated date of completion. The disclosure statement shall be prepared by an attorney licensed to practice law in Virginia and a copy shall be submitted to the county for approval prior to approval of a record plat. Executed disclosure statements shall be recorded contemporaneously with deeds conveying such lots.

(iii)

The developer may propose that the ownership, maintenance and perpetuation of all or a portion of the common areas in a development be guaranteed by some method or measure other than the formation of a nonprofit incorporated property owners association. In such case, the county attorney and zoning administrator shall ensure that all relevant requirements of paragraph (a) of this section are substantially satisfied with respect to protecting the future property owners and ensuring the county's interest. Certification by an attorney licensed to practice law in Virginia that all relevant requirements have been satisfied and fully describing how they are met, and which requirements were deemed to not be relevant and why, shall be submitted with site plans or subdivision plats.

(Ord. of 7-6-2004(5))

(Ord. of 7-6-2004(5))