§ 32-118. Property owners' or homeowners' associations

(a) Applicability. When a subdivision contains either common open space or other improvements which are not intended to be dedicated to the city for public use, such as private streets, a private recreation facility, landscaped entry features or water quality structures, a property owners' or homeowners' association agreement must be submitted to and approved by the city manager, and made a part of the final plat documents. The conditions, covenants and restrictions (CCRs) and the association documents, including the ordinances of incorporation and association bylaws, shall be submitted to the city for review and approval along with the preliminary plat application, and shall be filed of record with the county clerk prior to final plat approval in order to ensure that there is an entity in place for long-term maintenance of these improvements. Such documents must, at a minimum, include provisions that allow the city to take over the maintenance of common property, including but not limited to private streets and private recreation facilities, using association funds, if such action becomes necessary due to nonperformance or inaction by the association or if the association goes defunct. Provisions shall also be included that would, in the latter instance, convey ownership of the private streets, if any, and all other common areas to the city, and that would allow the city to remove any improvements or amenities from the common areas and sell any buildable land area, as residential lots, to recoup the city's expenses for maintenance or demolition of the improvements. Any monies that remain after the city has recovered all of its expenses shall be retained for future maintenance or upgrading of the streets, common areas, if any remain, screening walls or other improvements within the subdivision. These provisions are not intended to allow the city to profit in any way from taking over the association's responsibilities or funds; they are only intended to allow the city to recoup its actual incurred expenses so that the general public and the taxpayers of the city do not have to bear these costs.

(b) Membership. A property owners' or homeowners' association shall be an incorporated nonprofit organization operating under recorded CCRs through which:

(1) Each lot owner within the described land area is automatically a mandatory member; and

(2) Each lot is automatically subject to a charge for a proportionate share of the expenses for the property owners' or homeowners' association's activities, such as maintenance of common open spaces or private streets, and the provision and upkeep of common recreational facilities.

(c) Legal requirements.

(1) In order to ensure the establishment of a proper property owners' or homeowners' association, including its financing, and the rights and responsibilities of the property owners or homeowners in relation to the use, management and ownership of common property, the subdivision plat, dedication documents, covenants, and other recorded legal agreements must:

a. Legally create an automatic membership, nonprofit property owners' or homeowners' association;

b. Place title to the common property in the property owners' or homeowners' association, or give definite assurance that it automatically will be so placed within a reasonable, definite time;

c. Appropriately limit the uses of the common property;

d. Give each lot owner the right to the use and enjoyment of the common property;

e. Place responsibility for operation and maintenance of the common property in the property owners' or homeowners' association;

f. Place an association charge on each lot in a manner which will both ensure sufficient association funds and which will provide adequate safeguards for the lot owners against undesirable high charges;

g. Give each lot owner voting rights in the association; and

h. Identify land area within the association's jurisdiction including but not limited to the following:

1. Property to be transferred to public agencies;

2. The individual residential lots;

3. The common properties to be transferred by the developer to the property owners' or homeowners' association; and

4. Other parcels.

(2) Any governmental authority or agency, including, but not limited to, the city and the county, their agents, and employees, shall have the right of immediate access to the common elements at all times if necessary for the preservation of public health, safety and welfare. Should the property owners' or homeowners' association fail to maintain the common elements to the city's specifications for an unreasonable time, not to exceed 90 days after written request to do so, then the city shall have the same right, power and authority to enforce the association's rules and to levy assessments necessary to maintain the common elements as does the association. The city may elect to exercise the rights and powers of the property owners' or homeowners' association or its board, or to take any action required and levy any assessment that the property owners' or homeowners' association might have taken, either in the name of the property owners' or homeowners' association or otherwise, to cover the cost of maintenance, or the possible demolition, if such becomes necessary to preserve public safety or to ease maintenance burden, of any common elements.

(d) Protective covenants. Protective covenants shall be developed which, among other things, shall make the property owners' or homeowners' association responsible for:

(1) The maintenance and operation of all common property;

(2) The enforcement of all other covenants;

(3) The administration of architectural controls (optional); and

(4) Certain specified exterior maintenance of exterior improvements of individual properties (optional). The city is not responsible for enforcing protective covenants or deed restrictions.

(e) Written consent or council required—Before dissolution of association. The association may not be dissolved without the prior written consent of the city council.

(f) Same—Before change in documents concerning maintenance of streets, alleys and assessments. No portion of the association documents pertaining to the maintenance of private streets and alleys, and assessments therefor, may be amended without the written consent of the city council.

(Ord. No. 549, § 10.242, 12-22-2009)