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37 Revised 10/03/2019 Ordinance Language Commentary C. Open space shall not include: (1) Dwelling sites or lots, unless owned in common by an owners association; (2) Dwelling units or structures, except water-oriented accessory structures or facilities; (3) Road rights-of-way or land covered by road surfaces and parking areas; (4) Land below the OHWL of public waters; and (5) Commercial facilities or uses. 10.63 Open Space Maintenance and Administration Requirements. A. Open space preservation. The appearance of open space areas, including topography, vegetation, and allowable uses, must be preserved and maintained by use of deed restrictions, covenants, permanent easements, public dedication, or other equally effective and permanent means The instruments must prohibit: (1) Commercial uses (for residential PUD’s); (2) Vegetation and topographic alterations other than routine maintenance; (3) Construction of additional buildings or storage of vehicles and other materials; and (4) Uncontrolled beaching of watercraft. B. Development organization and functioning. Unless an equally effective alternative community framework is established, all residential planned unit developments must use an owners association with the following features: (1) Membership must be mandatory for each dwelling unit or dwelling site owner and any successive owner; (2) Each member must pay a pro rata share of the association’s expenses, and unpaid assessments can become liens on units or dwelling sites; (3) Assessments must be adjustable to accommodate changing conditions; and (4) The association must be responsible for insurance, taxes, and maintenance of all commonly owned property and facilities. 10.64 Erosion Control and Stormwater Management. A. Erosion control plans must be developed and must be consistent with the provisions of Section 8.3 of this ordinance. Erosion control plans approved by a soil and water conservation district may be required if project size and site physical characteristics warrant. 10.62.C.(1). Optional. “Dwelling sites” are not the same as lots (see definition in Section 2). Dwelling sites in a residential subdivision is the area within a lot not covered by a dwelling unit or structure (plus a buffer area around the sites or structures) that can be included as open space. Privately owned residential “open space” is very difficult to manage and maintain for ecological benefits, even with the required conservation easements. Communities concerned about developing and maintaining valuable habitat and water quality through open space preservation or about the ability to “administer” protection of open space on residential lots, may choose to add “lots, unless owned in common by an owner’s association.” 10.62.C.(4) clarifies that open space cannot include land below the OHWL of public waters. Use of the water above this land is already a “public” open space. The purpose of the open space is to set-aside and permanently protect private land for recreation, habitat, and water quality purposes and to offset higher development densities allowed.