§ 49-0305 — Conservation easements; certain common law rules not applicable

New York § 49-0305

• Jurisdiction: New York
• Law ENV: Environmental Conservation
• Title 3: Conservation Easements
• Art. 49: Protection of Natural and Man-made Beauty

Text

§ 49-0305. Conservation easements; certain common law rules not\n applicable.\n 1. A conservation easement may be created or conveyed only by an\ninstrument which complies with the requirements of section 5-703 of the\ngeneral obligations law and which is subscribed by the grantee. It shall\nbe of perpetual duration unless otherwise provided in such instrument.\n 2. A conservation easement shall be modified or extinguished only\npursuant to the provisions of section 49-0307 of this title. Any such\nmodification or extinguishment shall be set forth in an instrument which\ncomplies with the requirements of section 5-703 of the general\nobligations law or in an instrument filed in a manner prescribed for\nrecording a conveyance of real property pursuant to section two hundred\nninety-one of the real property law.\n 3. (a) A conservation easement shall be held only by a public body or\nnot-for-profit conservation organization, except that the state shall\nnot be authorized or empowered to acquire or hold any conservation\neasement which is subject to the provisions of article fourteen of the\nconstitution.\n (b) Any conservation easement created pursuant to this title shall not\nlimit, restrict or modify the right to construct, operate or continue\nthe use of any facility, or impede any activity, duly authorized under\nthe applicable provisions of the federal natural gas act (15 U.S.C. §§\n717-717 w).\n 4. A conservation easement shall be duly recorded and indexed as such\nin the office of the recording officer for the county or counties where\nthe land is situate in the manner prescribed by article nine of the real\nproperty law. The easement shall describe the property encumbered by the\neasement by adequate legal description or by reference to a recorded map\nshowing its boundaries and bearing the seal and signature of a licensed\nland surveyor, or if the easement encumbers the entire property\ndescribed in a deed of record, the easement may incorporate by reference\nthe description in such deed, otherwise it shall refer to the liber and\npage of the deed or deeds of the record owner or owners of the real\nproperty burdened by the conservation easement. An instrument for the\npurpose of creating, conveying, modifying or terminating a conservation\neasement shall not be effective unless recorded. A person causing any\nsuch document to be so recorded shall forthwith forward a copy thereof\nto the department, which shall maintain a file of conservation\neasements.\n 5. A conservation easement may be enforced in law or equity by its\ngrantor, its holder or by a public body or any not-for-profit\nconservation organization designated in the easement as having a third\nparty enforcement right, and is enforceable against the owner of the\nburdened property. Enforcement shall not be defeated because of any\nsubsequent adverse possession, laches, estoppel or waiver. No general\nlaw of the state which operates to defeat the enforcement of any\ninterest in real property shall operate to defeat the enforcement of any\nconservation easement unless such general law expressly states the\nintent to defeat the enforcement of such easement or provides for the\nexercise of the power of eminent domain. It is not a defense in any\naction to enforce a conservation easement that:\n (a) It is not appurtenant to an interest in real property;\n (b) It can be or has been assigned to another holder;\n (c) It is not of a character that has been recognized traditionally at\ncommon law;\n (d) It imposes a negative burden;\n (e) It imposes affirmative obligations upon the owner of any interest\nin the burdened property, or upon the holder;\n (f) The benefit does not touch or concern real property; or\n (g) There is no privity of estate or of contract.\n 6. The holder of a conservation easement, its agents, employees, or\nother representatives may enter and inspect the property burdened by a\nconservation easement in a reasonable manner and at reasonable times to\nassure compliance with the restriction.\n 7. The department shall promulgate regulations establishing standards\nfor conservation easements which shall specify but not be limited to:\n (a) the minimum term for a conservation easement as is necessary and\nappropriate to achieve the policy and purpose of this title, except that\nsuch standards shall not preclude taxpayers who own or convey\nconservation easements from qualifying for benefits under federal or\nstate tax laws when such benefits would otherwise be available by virtue\nof such ownership or conveyance; and\n (b) standards and procedures which require each conservation easement\nheld by a public body to include terms under which the easement shall be\nmodified where the commissioner has found after a non-adjudicatory\npublic hearing at which the public shall be given opportunity to be\nheard, that such easement is inconsistent with any other interest in\nland required for the local gathering, transmission or distribution of\ngas, electricity, water, telephone or cable television services and that\nno reasonable alternative exists for the local gathering, transmission\nor distribution of such service. Notice of any such hearing shall be\ngiven to the public pursuant to thirty days published notice in the\nstate register, the environmental notice bulletin and in a newspaper\nhaving general circulation in the county where the real property\nburdened by the easement is situated and individual notice shall be\ngiven in writing to any person who may be entitled to enforce such\neasement pursuant to the provisions of subdivision five of this section\nat such address as such person shall file with the commissioner.\n 8. Where a conservation easement is modified pursuant to subdivision\nseven of this section, or pursuant to any regulations promulgated\nthereunder, such easement shall be modified only to the minimum extent\nnecessary to accommodate the local gathering, transmission or\ndistribution of gas, electricity, water, telephone or cable television\nservice.\n 9. Written notice shall be provided to the director of the budget and\nnotice published in the state register and the environmental notice\nbulletin at least thirty days prior to the acquisition, or entry into a\ncontract for the acquisition, on behalf of the state of any conservation\neasement.\n