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New York Environmental Conservation - Title 3 - § 49-0305 Conservation Easements; Certain Common Law Rules Not Applicable

Legal Research Home > New York Laws > New York Environmental Conservation (ENV) > New York Environmental Conservation - Title 3 - § 49-0305 Conservation Easements; Certain Common Law Rules Not Applicable

Environmental Conservation 
 
  § 49-0305. Conservation   easements;   certain   common  law  rules  not
               applicable.
    1. A conservation easement may be  created  or  conveyed  only  by  an
  instrument  which complies with the requirements of section 5-703 of the
  general obligations law and which is subscribed by the grantee. It shall
  be of perpetual duration unless otherwise provided in such instrument.
    2. A conservation easement shall  be  modified  or  extinguished  only
  pursuant  to  the  provisions of section 49-0307 of this title. Any such
  modification or extinguishment shall be set forth in an instrument which
  complies  with  the  requirements  of  section  5-703  of  the   general
  obligations  law  or  in  an instrument filed in a manner prescribed for
  recording a conveyance of real property pursuant to section two  hundred
  ninety-one of the real property law.
    3.  (a) A conservation easement shall be held only by a public body or
  not-for-profit conservation organization, except that  the  state  shall
  not  be  authorized  or  empowered  to  acquire or hold any conservation
  easement which is subject to the provisions of article fourteen  of  the
  constitution.
    (b) Any conservation easement created pursuant to this title shall not
  limit,  restrict  or  modify the right to construct, operate or continue
  the use of any facility, or impede any activity, duly  authorized  under
  the  applicable  provisions of the federal natural gas act (15 U.S.C. §§
  717-717 w).
    4. A conservation easement shall be duly recorded and indexed as  such
  in  the office of the recording officer for the county or counties where
  the land is situate in the manner prescribed by article nine of the real
  property law. The easement shall describe the property encumbered by the
  easement by adequate legal description or by reference to a recorded map
  showing its boundaries and bearing the seal and signature of a  licensed
  land  surveyor,  or  if  the  easement  encumbers  the  entire  property
  described in a deed of record, the easement may incorporate by reference
  the description in such deed, otherwise it shall refer to the liber  and
  page  of  the  deed  or  deeds of the record owner or owners of the real
  property burdened by the conservation easement. An  instrument  for  the
  purpose  of creating, conveying, modifying or terminating a conservation
  easement shall not be effective unless recorded. A  person  causing  any
  such  document  to be so recorded shall forthwith forward a copy thereof
  to  the  department,  which  shall  maintain  a  file  of   conservation
  easements.
    5.  A  conservation  easement  may be enforced in law or equity by its
  grantor, holder or by a public body or any  not-for-profit  conservation
  organization  designated  in  the  easement  as  having  a  third  party
  enforcement right, and is enforceable against the owner of the  burdened
  property.  Enforcement  shall  not be defeated because of any subsequent
  adverse possession, laches, estoppel or waiver. No general  law  of  the
  state  which  operates to defeat the enforcement of any interest in real
  property shall operate to defeat the  enforcement  of  any  conservation
  easement  unless  such general law expressly states the intent to defeat
  the enforcement of such easement or provides for  the  exercise  of  the
  power  of eminent domain. It is not a defense in any action to enforce a
  conservation easement that:
    (a) It is not appurtenant to an interest in real property;
    (b) It can be or has been assigned to another holder;
    (c) It is not of a character that has been recognized traditionally at
  common law;
    (d) It imposes a negative burden;
    (e) It imposes affirmative obligations upon the owner of any  interest
  in the burdened property, or upon the holder;

    (f) The benefit does not touch or concern real property; or
    (g) There is no privity of estate or of contract.
    6.  The  holder  of a conservation easement, its agents, employees, or
  other representatives may enter and inspect the property burdened  by  a
  conservation  easement in a reasonable manner and at reasonable times to
  assure compliance with the restriction.
    7. The department shall promulgate regulations establishing  standards
  for conservation easements which shall specify but not be limited to:
    (a)  the  minimum term for a conservation easement as is necessary and
  appropriate to achieve the policy and purpose of this title, except that
  such  standards  shall  not  preclude  taxpayers  who  own   or   convey
  conservation  easements  from  qualifying  for benefits under federal or
  state tax laws when such benefits would otherwise be available by virtue
  of such ownership or conveyance; and
    (b) standards and procedures which require each conservation  easement
  held by a public body to include terms under which the easement shall be
  modified  where  the  commissioner  has  found  after a non-adjudicatory
  public hearing at which the public shall  be  given  opportunity  to  be
  heard,  that  such  easement  is inconsistent with any other interest in
  land required for the local gathering, transmission or  distribution  of
  gas, electricity, water, telephone or cable television services and that
  no  reasonable  alternative exists for the local gathering, transmission
  or distribution of such service. Notice of any  such  hearing  shall  be
  given  to  the  public  pursuant  to thirty days published notice in the
  state register, the environmental notice bulletin  and  in  a  newspaper
  having  general  circulation  in  the  county  where  the  real property
  burdened by the easement is situated  and  individual  notice  shall  be
  given  in  writing  to  any  person  who may be entitled to enforce such
  easement pursuant to the provisions of subdivision five of this  section
  at such address as such person shall file with the commissioner.
    8.  Where  a conservation easement is modified pursuant to subdivision
  seven of this  section,  or  pursuant  to  any  regulations  promulgated
  thereunder,  such  easement shall be modified only to the minimum extent
  necessary  to  accommodate  the   local   gathering,   transmission   or
  distribution  of  gas, electricity, water, telephone or cable television
  service.
    9. Written notice shall be provided to the director of the budget  and
  notice  published  in  the  state  register and the environmental notice
  bulletin at least thirty days prior to the acquisition, or entry into  a
  contract for the acquisition, on behalf of the state of any conservation
  easement.

Last modified: March 6, 2013