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Department of Planning, Conservation, and Development.

SECTION 5.17- OPEN SPACES

Upon consideration of the type of development proposed and determination of the need created by such a development, the Commission may select and require that a particular area of land be reserved for open space in locations designated on the Plan of Development or otherwise where the Commission determines such reservation would be appropriate. The Commission may ask for an advisory report from the Conservation Commission, regarding any application, as to the need for Open Space dedication using this Section.

5.17.01 Open Space Objectives

1. Any Open Space areas shown on the Plan of Development should be incorporated into the subdivision layout as open space. When applicable, open spaces should be arranged to link with any adjacent permanently preserved open spaces.
2. Natural features, including but not limited to, viewsheds along roads, rivers, streams, wetlands, flood plains, lakes, aquifers, steep slopes, forested areas and ridgelines should be conserved and enhanced to promote the public health, safety and welfare and provide visual barriers between areas within the development and between adjacent developments;
3. Areas of land for active recreational use should be provided, especially in areas of population concentration;
4. The preservation of prime agricultural soils and historically significant sites should be encourage;
5. Important habitats for fish, wildlife and flora, significant trees and archaeologically significant sites should be retained; and
6. Natural Drainage ways and natural flood water retention areas should be retained, and the quality of water bodies should be protected.

5.17.02 Standards For Open Space

1. Each area designated as open space shall be of suitable size, dimension, location, topography, and general character for the particular purpose envisioned by the Commission.  In a conventional subdivision ten percent (10%) of the total tract proposed for subdivision may be required as open space.  In an open space subdivision thirty three percent (33%) of the total tract shall be required as open space. The ten percent (10%) figure may be adjusted, as appropriate, for conditions such as population density, existing municipal facilities, topography, socioeconomic characteristics of the prospective population, and other appropriate site and development specific factors;
2. The Commission may also require that the developer provide for areas within the individual building lots and designated as "Area not to be developed." Such areas so designated shall be protected from future development by either a deed restriction or a conservation easement. Such areas included within building lots shall be excluded when calculating the minimum open space requirement for the tract but may be included in calculating the required lot area and yard requirements.
3. The Commission may exclude, proposed stormwater detention and retention facilities and a reasonable percentage of wetlands from the calculation of the required open space areas. However, it is recognized that properly maintained and landscaped detention/retention facilities may be incorporated into and calculated as part of the overall open space plan;
4. Open space areas shall abut a public street or have direct access to a public property through a right of way. The area of such right of way shall not be included in the required open space area. The right of way shall be at least fifteen (15) feet, but no greater than fifty (50) feet wide; and, at the discretion of the Commission, graded in a manner suitable for foot and vehicular traffic, and with a maximum grade of ten (10) percent and suitably posted as an access point;
5. Open space parcels shall be convenient to the dwelling units they are intended to serve and shall be accessible to all residents of the subdivision by sidewalks and/or pedestrian walkways or greenbelts;
6. When a property line of a subdivision abuts an existing playground or open space, the Commission may require the new open space lines to be a continuation of the existing open space to form a single, large, unified area;
7. Any land dedicated to the City for a public playground or park and that is improved for recreational purposes shall be graded to properly dispose of surface water and landscaped in a manner consistent with the intended use. All brush and debris shall be removed and the land left in a acceptable condition for the purpose intended;
8. All improvements on a parcel to be deeded to the City, including play apparatus and outdoor furniture shall be included in the total amount to be bonded to the City for subdivision improvements.  The Commission may also require additional protective measures including fencing;
9. The Commission may require a separate landscape plan for the proposed open space areas which clearly displays the type of vegetation, signs, fencing, play apparatus, trails, and outdoor furniture;
10. Open Space land to be deeded to the City need not necessarily be contiguous with the parcel being subdivided, but it must be within 500' of the subdivision.  Other property may be suggested by the developer and accepted by the Commission if, in the judgment of the Commission, the community need is better served. Such land must be in the ownership of the developer.

5.17.03 Methods For Open Space Dedication
The following are acceptable methods for dedicating open space in a subdivision. It may be:

1. With the approval of the Commission, deeded to the City of Middletown and so designated on the Final Subdivision Approval; or
2. held in such type of legal entity including but not limited to those created pursuant to Sections 47-200 to 47-293 of the Connecticut General Statutes, as amended, entitled Common Interest Ownership Act, Chapter 828, as amended or Homeowner's Association, as the Commission may deem appropriate. The developer shall submit a suitable legal instrument which, to the satisfaction of the City of Middletown will assure that such land will continue to be used for the conservation, park or recreational purposes in perpetuity.  Each homeowner or absent owner have mandatory membership in the Association which shall be passed on to each subsequent owner.  The developer shall also make provision for indemifying and saving the City of Middletown, its officers, agents, servants, and employees harmless from any legal liability of any nature whatsoever including to, accident or occurrence in such designated open space. Such developer shall also provide for the insertion in all deeds, in a form approved by the City of Middletown, any and all necessary safeguards and conditions as set forth in these Regulations.  Such legal instruments shall also provide that the City of Middletown, its officers, agents, servants, and employees may, without liability, enter upon such land held for the conservation, park or recreation and remove or cause to be removed any thing or object which may be deemed to be a nuisance. Such legal instrument shall also contain a provision that not structure may be erected on said conservation, park, or recreational land except that which is approved by the Commission. The legal instrument shall also contain a provision that such area set aside for conservation, park, or recreation shall always remain and be under the supervision of the Commission and no change shall be made in the use thereof without first having obtained approval from the Commission. Owners of the land contiguous to the approved development may be included and become part of such legal entity owning the conservation, park, and recreation area, provided that approval from the Commission and approval by the owners of the legal entity owning such land has been obtained. The above referred to instrument shall be filed and recorded on the Middletown Land Records together with the final approval in the Middletown Town/City Clerk's Office; or
3. Conveyed to and accepted by a private, municipal, state, or federal recreation or national heritage trust, created and existing for the purpose of acquiring, owning or maintaining land of unusual natural interest for the beneficial use and enjoyment of the public.

5.17.05 Deed Restrictions
All lands dedicated for open space purposes shall contain appropriate covenants and deed restrictions ensuring that: a) the open space will not be further subdivided in the future; b) the use of the site will continue in perpetuity for the purpose specified; c) appropriate provisions will be made for the maintenance of the open space, including the submission of a management plan for private open space; and d) common undeveloped open space will not be turned into a commercial enterprise admitting the general public for a fee.

5.17.06 Maintenance of Open Space Areas
The person or entity identified in Section 5.18.03 as having the right of ownership or control over the open space shall be responsible for its continuing upkeep and proper maintenance in accordance with the approved management plan. (see Section 5.18.03 #2 and 5.18.05)