27 MAINTENANCE ORGANIZATIONS, OPEN SPACE, AND COMMON FACILITIES
    27.000 Purpose
    27.100 Requirement for Maintnenance Orgnaizations
       27.110 Maintenance Organizations
       27.120 Exceptions
       27.130 Required Organizational Form
       27.140 Conditions of Recordation
       27.150 Duty to Inform Home Buyer
    27.200 Required Guarantees and Financial Contributions
       27.210 Performance Guarantee for Open Space and Common Facilities
       27.220 Maintenance Escrow
       27.230 Residential Stormwater Management Facility Maintenance Fund
       27.240 Nonresidential Stormwater Management Facility Maintenance Fund
    27.300 Construction, Completion and Inspection Requirements
       27.310 Construction of Open Space and Common Facilities
       27.320 Condition of Developed Open Space Areas and Common Facilities
       27.330 Condition of Natural Open Space Areas
       27.340 Inspection and Approval Process
    27.400 Transfer of Ownership
       27.410 Legal Transfer of Title to Open Space
       27.420 Title Transfer Process
       27.430 Property Tax Exemption
       27.440 Transfer Prior to Completion and approval of Open Space and Common Facilities
       27.450 Condominiums
    27.500 Maintnence of Open Space and Common Facilities
       27.510 Maintenance by Developer
       27.520 Maintenance by Maintenance Organization
       27.530 Failure to Maintain Open Space or Common Facilities
       27.540 Changes to Open Space or Common Facilities
    27.600 Transfer of Control of Maintenance Corporation
       27.610 Process
       27.620 Maintenance and Management Contracts
    27.700 Annual Registration Requirement
       27.710 Registration Requirement
       27.720 Failure to Register and/or Perform Minor Maintenance
    27.800 Compliance

CHAPTER 40
ARTICLE 27
MAINTENANCE ORGANIZATIONS, OPEN SPACE,
AND COMMON FACILITIES

(Amended May 8, 2007 by Ord. 07-012)

DIVISION 40.27.000     PURPOSE

The provisions of this Article require that all open space set aside as part of a subdivision or land development plan be transferred to and maintained by a governmental body or a maintenance organization by:

  1. Requiring the developer to create or identify a maintenance organization as a condition of recordation of the record plan.
  2. Delineating the maintenance responsibilities for all areas designated on the record plan as open space or common facilities including, but not limited to, private streets or rights-of-way, parking areas, drainage facilities, stormwater management facilities, and active or passive recreation areas and providing that such areas shall be maintained pursuant to the terms of a maintenance declaration, landscape plan, open space management plan or natural resource management plan approved by the Department prior to plan recordation.
  3. Requiring the transfer of ownership of the open space and common facilities to a maintenance organization or governmental body, and defining the process by which transfer shall occur.
  4. Defining the process by which the transfer of control of the maintenance corporation from the developer to the homeowners shall occur.
  5. Requiring all subdivisions and land developments constructed prior to the enactment of this Article to comply with all applicable Code provisions pertaining to maintenance organizations, open space, and common facilities.

(Amended July 8, 2003 by Ordinance 03-045; amended January 18, 2011 by Ordinance 10-113)

 

DIVISION 40.27.100     REQUIREMENT FOR MAINTENANCE ORGANIZATIONS

SECTION 40.27.110     MAINTENANCE ORGANIZATIONS

In subdivisions and land developments where lots or units will be sold to individual purchasers, the developer of the property shall establish or identify an appropriate organization that shall be responsible for owning, maintaining and/or managing the  open space and common facilities.

(Amended July 8, 2003 by Ordinance 03-045)

 

SECTION 40.27.120     EXCEPTIONS

A maintenance organization shall not be required under the following circumstances:

  1. The record plan contains only public open space that will be owned and maintained by a governmental body.
  2. The record plan contains no private open space but depicts common facilities and:
    1. The Office of Law and the Department agree in writing, prior to plan recordation, that a maintenance organization is not necessary;
    2. An appropriate agreement, such as an access or easement agreement, binds the lot owners and establishes obligations regarding use and maintenance of the common facilities; and
    3. Such agreement is approved by the Office of Law and the Department, noted on the record plan, and recorded in the Office of the Recorder of Deeds.

(Amended July 8, 2003 by Ordinance 03-045; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.130     REQUIRED ORGANIZATIONAL FORM

Prior to plan recordation, the developer shall idenitify an appropriate maintenance organization or governmental body responsible for maintaining the open space and common facilities. The maintenance organization shall consist of one (1) of the following entities.

  1. Condominium. A condominium organization is permissible only if the property complies with the requirements of 25 Del. C. Ch. 22 (Unit Property Act) or Ch. 81 (Delaware Uniform Common Interest Ownership Act or “DUCIOA”) depending upon which Act applies to the condominium organization. In such a case, "common elements" as used in the Unit Property Act or DUCIOA as applicable shall, in addition to its given definition, mean and refer to "open space" and "common facilities" as used in this Article. The Declaration required by the Unit Property Act or DUCIOA shall, by reference to this Article, subject the unit owners to the provisions of this Article.
    1. The form and content of the Declaration shall be approved by the Office of Law prior to plan recordation.
    2. The plan shall reference the Declaration by instrument number and state that maintenance of the open space and common facilities are subject to this Article and said Declaration.
  2. Third party conservancy. The County may approve a third party entity (“conservancy”) to operate as a maintenance organization upon a showing that the conservancy has the ability to maintain and manage the open space. The conservancy may be a conservation group, land trust, land management group, public/private partnership or any other type of entity as long as the conservancy’s primary purpose is preservation or conservation. The conservancy must be approved by the Department prior to plan approval. The conservancy must meet the following requirements to the Department’s satisfaction to be considered for approval as a maintenance organization.
    1. The ability to fund the costs of implementing and completing a natural resource area management plan, landscape plan, and other approved plans that concern the open space;
    2. The ability to fund the costs of perpetual maintenance and management of the open space.
    3. The knowledge and expertise to complete, manage, and maintain the approved natural resources area management plan, landscape plan, and other approved plans that concern the open space.
    4. Proof of adequate oversight mechanisms to carry out the responsibilities of open space management and maintenance.
    5. Documentation of long term financial and organizational stability and of perpetual existence.
    6. Assurance that at such time the organization can no longer perform its management and maintenance responsibilities, all open space shall be transferred to a party responsible for management and maintenance of the open space. The owner shall include such reverter or retransfer provisions in the deed transferring the land to the maintenance organization. Such provisions must be approved by the Office of Law before the open space is transferred.
    7. Execution of documents including maintenance agreements and conservation easements acceptable to the Department and Office of Law that ensures the preservation of the open space in the condition contemplated by the record plan, natural resource area open space management plan, landscape plan, and any other applicable plan.
    8. Language on the record plan and in the deed transferring the land to the maintenance organization creating restrictive covenants to ensure the availability of the open space for those whose use of the open space is intended and restrictions on transferability and use.
  3. Maintenance corporation. Unless Subsection A. or B. applies, the developer shall form a non-stock corporation pursuant to the provisions of 8 Del. C. Ch. 1 (General Corporation Law).
    1. Prior to plan recordation, the developer shall submit to the Department and the Office of Law, for their review and approval, the maintenance declaration, certificate of incorporation, and bylaws as required by this Article. These forms shall conform to the model forms contained in the Appendix to this Chapter.
    2. The maintenance declaration shall be executed by the legal owner of the property and shall create covenants that run with the land. The declaration shall be recorded by the Recorder of Deeds in and for New Castle County prior to record plan approval.
    3. The record plan shall reference the maintenance declaration, landscape plan, open space management plan, or natural resource management plan and state that maintenance of the common areas and facilities is subject to the provisions of this Article, the maintenance declaration, and applicable plans.
    4. At such time assessments are collected by the maintenance corporation for the maintenance of the open space, the developer shall be responsible for paying an assessment for each parcel owned. 

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.140     CONDITIONS OF RECORDATION

Prior to recordation of the plan, the developer of the property shall demonstrate:

  1. The maintenance organization has a perpetual obligation to maintain the open space and common facilities.
  2. The legal owner has created adequate restrictions on the record plan and in the maintenance declaration and any other document that is required by the Department concerning the transferability and use of the open space.
  3. That all lot or unit owners have a right to enjoy the private open space and common facilities, subject only to reasonable rules and regulations, and the payment of appropriate maintenance organization fees.
  4. That the maintenance organization has or will have the resources to discharge its maintenance obligations.
  5. That all other provisions of this Article have been observed and that a satisfactory plan is presented demonstrating that all remaining obligations will be fully discharged.
  6. The developer has provided the Department with the name, address, email, and telephone number of the developer's representative who will be responsible for maintenance of open space and common facilities during development of the subdivision.
  7. The developer has certified by affidavit, signed by the affiant under penalty of perjury, and notarized, that all subdivisions or land developments that the developer is or has been financially associated with are in compliance with this Article and any other applicable provisions of this Code pertaining to maintenance organizations, open space or common facilities. The developer must disclose all prior and current land use projects in the County in which any financial interest were or is presently held. This includes all projects conducted under the affiant's current business name as well as any prior construction or development business under which affiant has operated as a principal.
  8. The developer has provided a natural resource area open space management plan, open space management plan, landscape plan or an active recreation plan or a combination thereof.
    1. The specific content of the plan(s) will be established by the Department according to the requirements of this Chapter for the particular subdivision in question.
    2. The plan(s) must include open space and common facility construction and the open space and common facility completion sequence. The completion sequence should be phased where practical so that the construction and completion of open space and common facilities coincide with the completion of the dwelling units that border said open space or common facilities. The plan must specify the planting season for all landscaping to be installed.
  9. Prior to construction plan approval, the developer shall provide open space classified as active recreation with a slope that permits activities within the space to occur safely. Slopes must not exceed 5:1 unless the developer can demonstrate that the use would require a steeper slope.
  10. The developer has provided maintenance specifications on a plan for all existing undisturbed land or structures to remain within the subdivision and further demonstrate that the land or structure does not present a danger to public health, safety, or welfare.
  11. Approval in accordance with DNREC Remediation Section (or as amended) for all sites containing contaminated soils. No development shall be permitted that places any burden or liability associated with contaminated soils on residential maintenance organizations.
  12. All privately maintained storm sewer and stormwater management outfall pipe and structures with materials rated by the manufacture to have a life span at a minimum of fifty (50) years. Metal pipe is not permitted.
  13. Plans require restoration areas to be established prior to turnover. Monitoring requirements for the areas to achieve establishment must also be noted on the plans.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.150     DUTY TO INFORM HOME BUYER

In residential home sales, the seller of a lot, or his or her authorized agent, has an affirmative duty to inform the purchaser about maintenance corporation membership and educate the purchaser about members' responsibilities. This duty requires the seller to provide the buyer with a copy of the maintenance declaration and bylaws. A written acknowledgment stating that the seller has fulfilled his or her duty under this section shall be signed by the purchaser.

  1. New subdivisions. The developer of a new subdivision shall maintain a record of the individual acknowledgments evidencing the fact that the purchaser of a lot within the subdivision has been provided a copy of the maintenance declaration and the bylaws.
    1. The seller shall obtain the purchaser's acknowledgment at or before the time an agreement of sale is executed. Each acknowledgment shall be presented to the Department as a condition precedent to the issuance of each certificate of occupancy.
    2. A complete copy of the record of all acknowledgments shall be delivered by the developer to the board of directors of the maintenance corporation and the Department prior to the time the homeowners assume control of the board of directors.
    3. The seller must provide documents outlining the open space maintenance to be performed by the maintenance corporation, as outlined on the approved subdivision plan, to each buyer subject to the maintenance declaration.  
  2. Existing homes. In existing subdivisions that are encumbered with maintenance declarations, the purchaser, at or before settlement, shall sign an acknowledgment evidencing the fact that the seller has provided a copy of the maintenance declaration and the bylaws to purchaser.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended September 25, 2007 by Ordinance 07-117; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

DIVISION 40.27.200    REQUIRED GUARANTEES AND FINANCIAL CONTRIBUTIONS

(Amended May 8, 2007 by Ord. 07-012)

SECTION 40.27.210     PERFORMANCE GUARANTEE FOR OPEN SPACE AND COMMON FACILITIES

  1. The performance guarantee shall become part of the Development Agreement pursuant to Article 31.
  2. The County may pursue the performance guarantee against any Developer that has not completed the common facilities within a phase where a period of one year has passed since a dwelling unit permit was obtained.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.220     MAINTENANCE ESCROW

The developer shall place funds in an interest-bearing escrow account equivalent to the cost of maintaining the private open space and common facilities for a two (2) year period, as determined by the construction plans, natural resource area open space management plan, open space management plan, and landscape plan, but in no event shall the amount be less than the equivalent of three hundred ($300.00) dollars per lot within the subdivision. The escrow will also include an amount equal to ten (10) percent of the cost of acquiring and installing the landscaping. All interest that accrues in this account shall be turned over to the maintenance organization.

  1. The funding of this account shall coincide with the real estate settlement for each lot and shall be verified no later than the issuance of twenty-five (25), fifty (50) and seventy-five (75) percent of dwelling unit permits within the subdivision. The Department shall withhold the building permits for the remainder of the subdivision until the Department is furnished with satisfactory proof that the account has been funded in accordance with the requirements of this Section.
  2. The developer must demonstrate that the funds have been placed with an independent escrow agent who is not under the power and control of the developer.
  3. The escrow agreement shall provide that the funds shall not be withdrawn by the developer or any person acting on behalf of the developer.
  4. At the time the homeowners assume control of the maintenance corporation and elect a board of directors, the escrow amount for one hundred (100) percent of the lots within the phase being turned over to the community plus any interest shall be transferred to the maintenance corporation. Such transfer shall not occur without the approval of the Office of Law.
  5. The maintenance escrow amount shall become part of the Land Development Improvement Agreement pursuant to Article 31 and the fee shall be noted on the record plan.
  6. The Developer shall have a professional written estimate of the annual cost to maintain the proposed open space that is reviewed and approved by the Department.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.230     RESIDENTIAL STORMWATER MANAGEMENT FACILITY MAINTENANCE FUND

The developer shall pay funds to the County for the purpose of residential stormwater management facility maintenance and inspections.

  1. An amount shall be determined according to a standard formula derived from maintenance guidelines developed by the Department of Special Services and inspection costs incurred by the Department.
  2. The money shall be used for costs associated with annual inspections, long term sediment clean out, and structural repair and reconstruction of facilities located in residential subdivisions throughout the County.
  3. The amount shall be determined on a phase-by-phase basis and as noted on the record plan. The amount for a phase shall be paid prior to the title transfer of the open space within that phase. The total amount for the subdivision shall be paid no later than the issuance of seventy-five (75) percent of permits for dwelling units in the subdivision. The Department shall withhold the issuance of any additional building permits until the Department is furnished with satisfactory proof that the funds have been provided to the County in accordance with the requirements of this section.
  4. Any obligation to contribute to the Long Term Stormwater Maintenance and Inspection Fund shall become part of the Land Development Improvement Agreement pursuant to Article 31 of this Chapter and the fee shall be noted on the record plan.
  5. The County shall provide the developer with a letter that acknowledges receipt of the funds upon request.
  6. The County will review and may increase the amount if construction of the phase has not commenced within five (5) years of recordation. The developer must pay any additional amount required prior to the time renewed construction plans are approved.

(Amended May 8, 2007 by Ord. 07-012; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.240     NONRESIDENTIAL STORMWATER MANAGEMENT FACILITY MAINTENANCE FUND

The developer shall pay funds to the County for the purpose of nonresidential stormwater management facility annual inspections according to a standard formula developed by the Department of Special Services based on inspection costs incurred by the Department.

  1. A. Any obligation to contribute to the Long Term Stormwater Maintenance and Inspection Fund shall become part of the Land Development Improvement Agreement pursuant to Article 31 and the amount shall be noted on the record plan. The amount will be determined on a phase by phase basis.
    1. If the development does not require a building permit, the amount must be paid prior to scheduling the pre-construction meeting.
    2. If the development requires a building permit, the amount must be paid prior to the issuance of the first certificate of occupancy.
  2. The County shall provide the developer with a letter that acknowledges receipt of the funds upon request.
  3. The County will review and may increase the amount if construction of the phase has not commenced within five (5) years of recordation. The developer must pay any additional amount required prior to the time renewed construction plans are approved.

(Amended May 8, 2007 by Ord. 07-012; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

DIVISION 40.27.300   CONSTRUCTION, COMPLETION AND INSPECTION REQUIREMENTS

(amended May 8, 2007 by Ordinance 07-012)

SECTION 40.27.310     CONSTRUCTION OF OPEN SPACE AND COMMON FACILITIES.

  1. All areas designated on the record plan as open space and/or common facilities including, but not limited to, streets or rights-of-way, parking areas, stormwater management facilities, drainage facilities, and active or passive recreation areas, shall be constructed by the developer of the subdivision, and/or any other person or entity that constructs dwelling units within the subdivision or improves the development site. Such responsibility shall be joint and several, and allocation of responsibility shall be determined by the individual persons or entities constructing dwelling units in the subdivision and by the developer.
  2. All areas designated on the record plan as open space and/or common facilities including, but not limited to, streets or rights-of-way, parking areas, stormwater management facilities, drainage facilities, and active or passive recreation areas, shall be constructed, installed, or dedicated by developers, at no expense to the County. Construction, installation, and dedication of such open space or common facilities shall be subject to approval by the appropriate officials at the developer's expense.

    1. The Department may not issue more than fifty (50) percent of the total dwelling unit permits within the subdivision until all active recreation areas and structured facilities (clubhouses, pavilions, historical structures etc.) have been turned over to the community.
    2. The developer shall be responsible for the maintenance of such open space and facilities until all of the conditions set forth in Section 40.27.510 are satisfied. 
    3. Open space and common facilities such as sidewalk/walking path/alleys, conveyance systems, landscaping, stormwater management facilities, reforestation, invasive treatments, and final grading must be outlined on the construction plan and must be completed prior to the release of any permit within the phase, other than a permit for a model home. The sequence of construction must outline how each of these is addressed during the construction of the phase. Any extension request must be submitted prior to the scheduling of a post bulk inspection. An extension may be approved by the Department when warranted for weather conditions and sound engineering practices.
    4. Construction of an additional phase will be prohibited if the subdivision or land development is not in compliance with any approved plan or the County code.
    5. Perimeter monuments must be installed, and documentation from a State-registered professional land surveyor provided to the Department prior to the release of dwelling unit permits other than permits for model homes.
    6. The Department may not issue more than fifty (50) percent of the total dwelling unit permits within the subdivision until the community entrance signs have been installed.
    7. Open space shall not be utilized for construction access or disturbed once completed unless maintenance is needed within the open space
  3. When the developer passes the post bulk inspection, the developer must provide semiannual reports by the first of January and July outlining required maintenance and anticipated progress over the next six (6) months. All items requiring maintenance shall be noted with a time for completion. The January report must include a summary of all work that was performed over the prior year. If open space and common facilities are maintained in conformance with the plan for three consecutive reports, the Department may reduce reporting to an annual basis. Reporting may be increased as deemed necessary by the Department if the open space is not maintained. The Department must withhold building permits until such time as the required reporting is provided to the Department.
  4. Where the open space or common facilities are to be developed, such development shall be completed at such time the open space area or common facilities are no longer directly and materially affected by construction activity but shall be completed no later than the issuance of ninety (90) percent of permits for dwelling units. The number of lots open for construction at any one time may be further limited by phases shown on the approved record plan, landscape plan, open space management plan or construction management plans.
  5. If the developer cannot complete the open space pursuant to the timeframes designated on the plan, status report or as provided in this section, the Department may, for good cause shown, allow additional time for completion of the open space and/or common facilities subject to the following and may issue additional building permits.
    1. The developer shall provide the Department with a written proposal for the extension request (“Proposal”) and a letter of credit or certified check in the amount of one hundred- twenty-five (125) percent of the fair market value of completing the unfinished open space and common facilities along with a review and processing fee as outlined in Appendix 2. The Proposal shall provide for the completion of the open space and common facilities as soon as practicable and provide for the default of the funds for failure to comply with the extended timeframes. The Proposal and letter of credit shall be subject to review and approval by the Office of Law and the Department. A County licensed contractor shall provide the Department with a fair market estimate to complete the unfinished open space and common facilities. The Department may require additional estimates if it believes that the fair market estimate will not cover the cost to complete construction and turnover. For phased projects the County may accept an amount sufficient to complete work within particular phases.
    2. A Proposal may be approved only if the Department determines that one (1) or more of the following conditions apply:
      1. weather conditions over the previous six (6) months prevented the timely completion of the open space or common facilities; if the area cannot be stabilized with vegetation during the normal growing season as outlined within the Delaware Erosion and Sediment Control Handbook for vegetation; or
      2. sound engineering and construction practices warrant the extension.
    3. If an extension is granted, the developer shall provide written notification to the current property owners and those with sales agreements describing the reasons for the delay and providing an expected schedule of completion. Prior to the release of additional permits, the Department must receive verification of distribution of the notification in the form of certified letters, affidavits of site postings or such other proof as the Department may find acceptable.
    4. An extension and any renewal shall not exceed six (6) months. The Developer is responsible to pay the County as outlined within Appendix 2 when an extension expires without completion of the open space and when the developer has not made a complete submission for renewal.

(Amended July 8, 2003 by Ordinance 03-045; amended July 13, 2004 by Ordinance 04-059; amended May 8, 2007 by Ordinance 07-012; amended September 25, 2007 by Ordinance 07-117; amended July 10, 2018 by Ordinance 18-020; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.320     CONDITION OF DEVELOPED OPEN SPACE AREAS AND COMMON FACILITIES

(Amended April 19, 2021 by Ordinance 20-090)

At the time of inspection, developed open space and common facilities must be in good condition so that they may be used for their intended purpose and must be in conformity with the following requirements. These requirements are not all-inclusive but are intended to describe and establish minimum levels of quality for open space. The open space and common facilities must be, at a minimum:

  1. Clean and contain no surface or buried debris.
  2. Graded to drain and be free of standing water seventy-two (72) hours after a rain event, except within undisturbed natural areas. 
  3. Free of standing dead trees, limbs and branches that pose a safety hazard to open space users. Notwithstanding the foregoing, nothing herein shall require removal of limbs an branches within forested areas, but shall only require removal of such hazards along the perimeter of the forested open space areas. Line defining plant material planted by a lot owner may be permitted as long as the root ball does not encroach into the open space.
  4. Free of conditions harmful to the preservation of trees thereon, such as fill or excavation around tree root zones.
  5. Free of unnatural conditions created by the developer that may be hazardous to users of the open space within disturbed areas. The requirements of this subsection shall be satisfied by, for example, but not by way of limitation, construction of new features or safety improvements such as fences or berms to protect open space users from newly created hazards; e.g., abrupt dropoffs from sidewalks to drainage ditches, steep embankments.
  6. Free of any remnants from construction material and soil stockpiles.
  7. Free of soil compaction by construction vehicles or construction material stockpiles. All areas subject to soil compaction shall be broken up or otherwise loosened to a depth of twelve (12) inches. The developer must provide photographic documentation of the appropriate equipment performing the work on areas noted on the construction plans or where haul roads have been utilized. Documentation must be provided prior to the release of dwelling units permits.
  8. Vegetated in accordance with the Additional Standard and Specifications of the Delaware Erosion and Sediment Control Handbook, and in accordance with the natural resource area open space management plan, open space management plan or landscape plan as certified by the professional(s) who designed and prepared the plan depicting the condition of the completed open space. The Department shall require the Developer to reseed and stabilize any and all areas where a satisfactory stand of vegetation as determined by the Department does not exist at the time of the ninety (90) percent inspection. A re-inspection shall be required when perennial vegetation is established prior to the release of the performance bond.
  9. I. Free of all unauthorized encroachments; (e.g., sheds, gardens, fences, line-defining plant material). 
  10. Improved according to the open space management plan, natural resource area open space management plan, landscape plan and/or related construction drawings. This requires that stormwater management facilities must be completed and maintained pursuant to Chapter 12. Stormwater management areas must be free of algae, invasive vegetation, and undesirable vegetation that is detrimental to the proper operation of the facility.
  11. Delineated with instructional signs.
  12. The Department may utilize a third-party professional to confirm the good condition of any open space area or common facility prior to acceptance of the open space.

(Amended July 8, 2003 by Ordinance 03-045; amended July 13, 2004 by Ordinance 04-059; amended September 13, 2005 by Ordinance 05-081; amended May 8, 2007 by Ord. 07-012; amended September 25, 2007 by Ordinance 07-117; amended January 18, 2011 by Ordinance 10-113; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.330    CONDITION OF NATURAL OPEN SPACE AREAS

As determined by the natural resource management plan, open space management plan or landscape plan, open space may be intended for use as an undisturbed or natural area. Should this be the intent, the note on the record plan shall prohibit disturbance of the area. The area shall be transferred in this "untouched" natural state with the governmental body or maintenance organization accepting the original condition. The only exception to the prohibition on disturbing the designated area shall be if:

  1. The open space is disturbed or artificially changed while under the ownership of the developer as provided for on the record plan; or
  2. Safety precautions are undertaken along the perimeter to protect open space users and adjacent property owners; e.g., tree trimming or removal, or the erection of safety barriers.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012)

 

SECTION 40.27.340     INSPECTION AND APPROVAL PROCESS

These procedures shall be followed for inspections of open space and common facilities.

  1. The developer shall contact the Department, in writing, requesting an inspection of the open space. The developer’s request shall include the items required by the Department such as certifications, as-built surveys, status reports, applicable plans, studies, reports, private storm sewer video, contact information for all board members, notification to the district councilperson or any other additional information and all required fees.
  2. Within twenty (20) days of the receipt of the request, the Department shall coordinate an inspection of the open space for conformance with this Article and this land transfer procedure. Once the open space inspection has been scheduled, the Department will notify the board members and district councilperson. There shall be no fee for the first inspection. Notwithstanding the foregoing, if weather conditions prevent the Department from inspecting the open space within the twenty (20) day period, as determined by the Department, the Department must have an additional ten (10) days in which to make the inspection. The Department will notify the developer, in writing, of any defects or non-compliant items found during the inspection and will specify a time period in which to correct them. Non-compliant items not corrected within the specified time period will be subject to Sediment Management and Erosion and Sediment Control re-inspection fees.
  3. When all specified defects and non-compliant items have been corrected, the developer shall notify the Department in writing with a response letter and photographic documentation of this fact. The Department will coordinate a reinspection. Record Plan Open Space reinspection fees are outlined within Appendix 2 of this chapter. At the time the Department finds that the condition of the open space conforms to all plan specifications and any requirements under this Chapter, the developer shall be notified within ten (10) days, in writing, that the open space and common facilities have been approved.
  4. Prior to requesting an inspection, the developer must submit a landscape plan, certified by a registered landscape architect and dated within fifteen (15) days of the request that affirms all vegetation is installed, alive, and in good condition.
  5. A third-party professional must certify that the private storm sewer and streets are constructed in compliance with DelDOT standards. The Department must find the report, as-built plan and pipe video acceptable prior to the inspection of the open space.
  6. The developer must provide written notification to each dwelling unit owner of the scheduled inspection at least five (5) working days prior to the inspection date and affirm to the Department that this has been completed.
  7. The design professional who prepared the grading and stormwater management plan must provide a certification verifying the stormwater management design for the site is functioning as designed. Upon written request, the Department may approve another professional to provide the certification.
  8. An open space inspection approval is valid for sixty (60) days.

(Amended May 8, 2007 by Ord. 07-012; amended September 25, 2007 by Ordinance 07-117; amended January 18, 2011 by Ordinance 10-113; amended January 8, 2012 by Ordinance 12-068; amended April 19, 2021 by Ordinance 20-090)

 

DIVISION 40.27.400     TRANSFER OF OWNERSHIP

(amended May 8, 2007 by Ordinance 07-012)

SECTION 40.27.410     LEGAL TRANSFER OF TITLE TO OPEN SPACE

  1. Open space shall be conveyed no later than the issuance of building permits for ninety (90) percent of the dwelling units within the subdivision. For purposes of a phased development, the County may apply this requirement on a phase-by-phase basis.
  2. All costs associated with the transfer of open space and the recordation of the open space deed shall be borne by the developer.
  3. For purposes of a phased development, the title to open space may be transferred on a phase-by-phase basis.
  4. The developer must verify that it provided all documents required to maintain the open space to the maintenance organization in both electronic and paper format. Documents provided must include any open space management plans, and any stormwater maintenance and private storm sewer specifications.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended January 8, 2013 by Ordinance 12-068; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.420     TITLE TRANSFER PROCESS

  1. The developer, or its designee, shall contact the Office of Law to make arrangements for the transfer. All required documents shall be submitted to the Office of Law. In addition to documents specifically required herein, the Office of Law may require any other documentation necessary for proper review of the transfer.
    1. 1. The developer or its designee shall prepare a legal description and deed for the land. The deed shall contain such provisions and restrictions required by the Office of Law necessary to protect the status of the open space and common facilities.
    2. The developer or its designee shall provide a lien search from a title abstractor acceptable to the Office of Law. A certification that no liens exist on the land shall be submitted by the owner of the property.
    3. Any additional forms required from the Office of the Recorder of Deeds or any other governmental office shall also be submitted.
  2. No lands shall be transferred unless title is free of all taxes, liens, judgments or encumbrances and the deed is legally adequate
  3. If a developer fails to properly transfer the open space, the remaining permits will not be issued and the developer shall be responsible for the maintenance of the open space until all land is properly and legally transferred and all other provisions of this Article are met.
  4. No transfer of dedicated public open space shall be effective until the Office of Law gives written notification to the grantor that the land has been formally accepted and the deed has been recorded. Land that is to be dedicated as public open space and transferred to New Castle County, shall also require the written approval and acceptance of the General Manager of the Department of Public Works. 
  5. The transfer of ownership of public open space to a governmental body shall occur in accordance with the transfer procedures established by the applicable public agency.
  6. When the title documents are approved, the developer shall record the deed and forward stamped copies to the Office of Law and the maintenance organization.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.430     PROPERTY TAX EXEMPTION

Upon receipt of the recorded deed, the Office of Law shall have the open space parcel(s) declared exempt from taxation.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ordinance 07-012; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.440     TRANSFER PRIOR TO COMPLETION AND APPROVAL OF OPEN SPACE AND COMMON FACILITIES

Legal transfer of the land prior to final County approval shall not relieve the developer of maintenance responsibilities of the open space and common facilities or legal liability for such land. If the open space is transferred prior to its condition being approved by the Department, the developer shall provide the Office of Law with such documents necessary to allow access to complete or restore the open space and common facilities and agreements necessary to indemnify and hold harmless the maintenance organization or governmental body from any and all occurrences on the property until such time the maintenance organization or governmental body is legally liable for the land.

(Amended July 25, 2000 by Ordinance 00-040; amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ord. 07-012; amended September 25, 2007 by Ordinance 07-117; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.450     CONDOMINIUMS

In residential subdivisions where units are transferred as condominiums within the meaning of the Unit Property Act or DUCIOA depending upon which Act applies, ownership of the open space shall not be transferred as provided herein but shall be held as provided by the condominium declaration. The developer shall be responsible for the costs of constructing and maintaining the open space until such time that it is inspected and approved by the Department. Developer must provide staging on the construction and landscape plans for conveyance of the open space to a condominium association while units are constructed. The plans must delineate the open space and common facilities to be completed prior to the issuance of a certificate of occupancy for each building.

(Amended May 8, 2007 by Ord. 07-012; amended April 19, 2021 by Ordinance 20-090)

 

DIVISION 40.27.500   MAINTENANCE OF OPEN SPACE AND COMMON FACILITIES

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ordinance 07-012)

SECTION 40.27.510     MAINTENANCE BY DEVELOPER

  1. The developer of a subdivision shall maintain the open space and common facilities and shall be responsible for the cost of such maintenance until the following conditions are satisfied:
    1. The open space and common facilities shown on the record plan and natural resource area open space management plan, open space management plan or landscape plan and/or related construction drawing(s) have been improved according to the approved plans and approved as required by this Article;
    2. The open space and common facilities have been transferred to a maintenance organization or governmental body according to the provisions of this Article; and
    3. If applicable, the developer has transferred control of the maintenance corporation to the homeowners.
  2. The developer controlled maintenance organization may collect an assessment for completed open space and common facilities, and such assessments shall be in accordance with DUCOIA to the extent DUCIOA is applicable.

(Amended May 8, 2007 by Ord. 07-012; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.520    MAINTENANCE BY MAINTENANCE ORGANIZATION.

  1. The maintenance organization shall not be responsible for maintaining open space and common facilities until:
    1. The open space and common facilities shown on the record plan and natural resource area open space management plan, open space management plan, or landscape plan have been improved and approved as required by this Article;
    2. The open space and common facilities have been transferred to the maintenance organization according to the provisions of this Article; and
    3. If applicable, the developer has transferred control of the maintenance organization to the homeowners.
  2. When the requirements of this Section have been satisfied, the open space and common facilities shall thereafter be maintained and kept in good order and repair by the maintenance organization.
  3. All registered maintenance organizations created for the purpose of maintaining common facilities located in residential subdivisions are required to perform minor maintenance and inspections on their stormwater management facilities as required by Chapter 12, Article 6 in order to qualify for financial assistance from the County for major maintenance and repairs of stormwater management facilities, subject to the availability of funds. Failure to perform required maintenance could result in corrective action by the County and imposition of a lien as set forth in Section 40.27.530, or its predecessor, or any recorded maintenance declaration, and ineligibility for County financial assistance, unless and until all required inspections and minor maintenance are up to date.

(Amended May 8, 2007 by Ord. 07-012; amended January 18, 2011 by Ordinance 10-113)

 

SECTION 40.27.530    FAILURE TO MAINTAIN OPEN SPACE OR COMMON FACILITIES.

  1. Developer. Upon failure of the developer to maintain the open space and common facilities, pursuant to any applicable plan requirement or Code provisions, regardless of whether such open space or common facilities are improved or still under construction, the County may stop issuing building permits and enter upon the premises and complete such maintenance and repair. Upon notice of failure to maintain the common facilities, the County shall provide at least ten (10) days notice to the owner and developer of said condition. If the developer does not respond to the County's notice by correcting said condition, the Department shall not issue building permits until such condition is corrected. At the Department's discretion, if the condition is not corrected within thirty (30) days, or if immediate corrective action is necessary, the County may enter the property and correct the condition. If the condition cannot be corrected within thirty (30) days, the County may elect to extend the time limitation if corrective action is commenced and pursued with due diligence within thirty (30) days. If the County enters upon the land, the cost of the work performed by the County shall be charged to the owner and the developer. This cost shall be paid to the County by the owner or developer prior to the issuance of any additional building permits or in the Department's discretion, may be deducted from the performance surety.
  2. Maintenance corporation or condominium organization. Upon failure of the maintenance corporation or condominium organization to maintain and repair the open space and common facilities as required herein, the County may, in addition to any other remedy provided in this Chapter, enter upon the premises and perform such maintenance and repair, provided that at least ten (10) days notice is given to the board of directors of the maintenance corporation. In the case of a condominium organization, such notice shall be sufficient if given to the condominium council. Notice to individual residents shall not be required.
    1. The cost of the work performed by the County shall be charged to the maintenance corporation or condominium organization or, at the election of the County, may be charged to the owners of the lots or units within the subdivision. In the latter case, the assessment shall be apportioned against each lot or unit in accordance with the provisions of the instruments, if any, governing their rights of use of enjoyment, or in the absence of any such provisions, the apportionment shall be by pro rata share per lot or unit.
    2. When the assessment is made against the maintenance corporation or condominium organization, it shall become a lien against the owners of the lots or units within the subdivision from the date when such lien is filed in the Office of the Recorder of Deeds.
    3. When the assessment is made against the owners of the lots or units in the subdivision, it shall become a lien against each lot or unit from the date when such lien is filed in the Office of the Recorder of Deeds. After thirty (30)-days notice to the owners, the assessment provided for herein may be collected by foreclosure of such lien, by action against the owners of such lots or units or by any other available legal means.
  3. Third party conservancy. Upon failure of the conservancy to maintain the open space in accordance with the record plan, natural resource area open space management plan, open space management plan, or landscape plan, the County may enter upon the premises and complete such maintenance and repair. If immediate corrective action is necessary in the Department's judgment, the County may immediately enter upon the land and correct the deficiencies. In all other cases, the County shall provide at least ten (10) days notice to the conservancy of said condition. If the conservancy does not respond to the County's notice by correcting said condition, the County may enter upon the property and correct the condition. If the condition cannot be corrected within the ten (10) days, the County may elect to extend the time limitation if corrective action is commenced and pursued with due diligence within thirty (30) days. If the County enters upon the land to maintain the open space or perform other services, the cost of the work performed by the County shall be charged to the conservancy. The County may pursue any remedy at law or in equity to secure payment of any fees charged to the conservancy. Additionally, any monies not paid when due shall become a lien on the property and all other property in the County owned by the conservancy to the extent permitted by law.

(amended May 8, 2007 by Ordinance 07-012)

 

SECTION 40.27.540    CHANGES TO OPEN SPACE OR COMMON FACILITIES

  1. Developer. If a plan proposes changes to private open spaces or common facilities delineated on an existing plan, a petition supporting the record plan shall be included with the submission. The petition shall be executed by the owners of at least two-thirds (2/3) of the lots of the existing plan having an interest in the private open space or common facilities. In DPUD's or phased developments, if the private open space or common facility is predominately designed for use by lot owners of a delineated section or phase, consent of two-thirds (2/3) of the lot owners in the section or phase containing the private open space or community facility shall be required. The Department may allow substitutions of plant material on the landscape plan without a petition if the plant substitutions conform to the plant list in Appendix 3.
  2. Maintenance organization, condominium or third-party conservancies. Once the developer satisfies the conditions for transferring maintenance responsibility, open space that has been turned over may be modified pursuant to a vote taken according to the organization’s governing documents. Any change must be submitted to the Department on a record or landscape plan for review and is subject to Department approval. Any change to a stormwater management facility must also obtain approval from the Department of Public Works.

Amended January 1, 2010 by Ordinance 09-066; amended April 19, 2021 by Ordinance 20-090)

 

DIVISION 40.27.600    TRANSFER OF CONTROL OF MAINTENANCE CORPORATION

(Amended May 8, 2007 by Ordinance 07-012)

SECTION 40.27.610    PROCESS

The Department shall serve as a resource for the developer and the homeowners to ensure the transfer of control is completed correctly.

  1. Transfer of control of the maintenance corporation from the developer to the homeowners must be completed no later than the issuance of seventy-five (75) percent of the permits for the dwelling units within the subdivision.
  2. The developer shall provide at least thirty (30) days written notice to each homeowner of the developer's intent to transfer of control of the maintenance corporation to the homeowners.
    1. For the purposes of this Section, a form letter addressed to "Homeowners in the (Name of Subdivision)_______________ Subdivision" shall suffice as long as the envelopes are individually addressed to each homeowner.
    2. A copy of the notice and an affidavit from the author of the letter listing the names of the homeowners to whom the notice was sent and the address where the notice was sent must be provided to the Office of Law and the Department contemporaneously with the notice to the homeowners so that the Department can confirm that proper notice was effectuated.
    3. The Department shall issue no further building permits after the issuance of seventy-five (75) percent of the building permits for the dwelling units within the subdivision until the appropriate Departments receive a copy of the notice and affidavit.
  3. Each director serving on behalf of the developer shall hold his or her office until a successor is duly elected. Each director serving on behalf of the developer shall actively participate in the transfer process by calling the meeting and following the procedures for turnover delineated in the maintenance corporation's governing documents.
  4. D. Proof of transfer of control of the maintenance corporation shall consist of a notarized affidavit signed by the developer and a list of the homeowners who have assumed control of the maintenance corporation. Said affidavit shall state that control of the maintenance corporation has been fully turned over to the homeowners.
  5. The developer shall supply the with the names, addresses and phone numbers of the homeowners serving on the maintenance corporation's board of directors.

(Amended September 13, 2005 by Ordinance 05-081; amended May 8, 2007 by Ord. 07-012; amended September 25, 2007 by Ordinance 07-117; amended April 19, 2021 by Ordinance 20-090)

 

SECTION 40.27.620     MAINTENANCE AND MANAGEMENT CONTRACTS

Contracts entered into by the developer for the management of the maintenance corporation or the maintenance of the open space may be assigned to the maintenance corporation only upon approval of the maintenance corporation once the homeowners are in control of the maintenance corporation and subject to the assignment provisions of the contract.

(Amended September 13, 2005 by Ordinance 05-081; amended August 22, 2006 by Ordinance 06-058; amended May 8, 2007 by Ord. 07-012)

 

DIVISION 40.27.700    ANNUAL REGISTRATION REQUIREMENT.

(Amended July 8, 2003 by Ordinance 03-045; amended May 8, 2007 by Ordinance 07-012)

SECTION 40.27.710.     REGISTRATION REQUIREMENT

A maintenance organization must register annually and file an annual stormwater management facility inspection and maintenance log with the Department of Special Services to qualify for financial assistance for major repairs, subject to the availability of funds, as set forth in Section 40.27.520 and Chapter 12, Article 6. The County may need to contact the maintenance organization to address common facility issues or to discuss other relevant information. Additionally, to address the concerns or questions of maintenance organization members, the County will maintain a file containing each organization’s governing documents. To ensure this information is available, within thirty (30) days after the maintenance organization has legal responsibility to maintain the common facilities, and within thirty (30) days after each meeting in which directors or members of the governing body are elected, the maintenance organization shall register with the Department of Special Services. Registration shall include the names, addresses, and telephone numbers of the board of directors and any officers of the maintenance corporation.

(Amended May 8, 2007 by Ordinance 07-012; amended July 10, 2018 by Ordinance 18-020)

 

SECTION 40.27.720.    FAILURE TO REGISTER AND/OR PERFORM MINOR MAINTENANCE

Maintenance organizations that are not registered with the Department of Special Services or that fail to perform required maintenance and fail to file annual stormwater management facility inspection and maintenance logs as required by Chapter 12, Article 6 shall not be eligible for County financial assistance with stormwater management facility sediment clean out and replacement of structural components.

(Amended May 8, 2007 by Ordinance 07-012; amended January 18, 2011 by Ordinance 10-113; amended July10, 2018 by Ordinance 18-020)

 

DIVISION 40.27.800.     COMPLIANCE

The owner or developer of a subdivision, or any part thereof, at the time of recording the record plan, and any subsequent owners thereof, shall be subject to the provisions of this Article and may be compelled by any available action at law or in equity to comply therewith. Additionally, any individual, corporation, partnership, joint venture or other legal entities in which any principal of the owner or developer, or any of his or her successors or assigns, shall become associated with shall also be subject to the denial of building permits and certificates of occupancy until violations of this Article have been corrected. Any remedy available under this Chapter shall apply to this Article.

(Amended May 8, 2007 by Ord. 07-012)