ENV - Environmental Conservation

 

 49-0301. Declaration of policy and statement of purpose.
 
 The legislature hereby finds and declares that in order to implement
 the state policy of conserving, preserving and protecting its
 environmental assets and natural and man-made resources, the
 preservation of open spaces, the preservation, development and
 improvement of agricultural and forest lands, the preservation of areas
 which are significant because of their scenic or natural beauty or
 wetland, shoreline, geological or ecological, including old-growth
 forest, character, and the preservation of areas which are significant
 because of their historical, archaeological, architectural or cultural
 amenities, is fundamental to the maintenance, enhancement and
 improvement of recreational opportunities, tourism, community
 attractiveness, balanced economic growth and the quality of life in all
 areas of the state.
 
 49-0303. Definitions.
 
 
 When used in this title:
 1. "Conservation easement" means an easement, covenant, restriction or
 other interest in real property, created under and subject to the
 provisions of this title which limits or restricts development,
 management or use of such real property for the purpose of preserving or
 maintaining the scenic, open, historic, archaeological, architectural,
 or natural condition, character, significance or amenities of the real
 property in a manner consistent with the public policy and purpose set
 forth in section 49-0301 of this title, provided that no such easement
 shall be acquired or held by the state which is subject to the
 provisions of article fourteen of the constitution.
 2. "Not-for-profit conservation organization" means a not-for-profit
 corporation organized inter alia for the conservation or preservation of
 real property and which has the power to acquire interests in real
 property. Such organization must have qualified as exempt for federal
 tax purposes pursuant to Section 501 (c)(3) of the internal revenue code
 or any similar successor statutory provision.
 3. "Public body" means the state or a municipal corporation as that
 term is defined in section two of the general municipal law. Such term
 shall further include the Palisades interstate park commission and the
 Central Pine Barrens joint planning and policy commission.
 4. "Third party enforcement right" means a right which may be granted
 in a conservation easement which empowers a public body or a
 not-for-profit conservation organization which is not a holder of the
 easement to enforce any of the terms of the easement.
 
 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.
 
 49-0307. Procedures for modifying or extinguishing conservation
 easement.
 
 1. A conservation easement held by a not-for-profit conservation
 organization may only be modified or extinguished:
 (a) as provided in the instrument creating the easement; or
 (b) in a proceeding pursuant to section nineteen hundred fifty-one of
 the real property actions and proceedings law; or
 (c) upon the exercise of the power of eminent domain.
 2. A conservation easement held by a public body outside the
 Adirondack park or Catskill park, as defined in section 9-0101 of this
 chapter, may only be modified or extinguished:
 (a) as provided in the instrument creating the easement; or
 (b) in a proceeding pursuant to section nineteen hundred fifty-one of
 the real property actions and proceedings law; or
 (c) upon the exercise of the power of eminent domain; or
 (d) where land subject to a conservation easement or an interest in
 such land is required for a major utility transmission facility which
 has received a certificate of environmental compatibility and public
 need pursuant to article seven of the public service law or is required
 for a major steam electric generating facility which has received a
 certificate of environmental compatibility and public need pursuant to
 article eight of the public service law, upon the filing of such
 certificate in a manner prescribed for recording a conveyance of real
 property pursuant to section two hundred ninety-one of the real property
 law or any other applicable provision of law.
 3. A conservation easement held by a public body inside the Adirondack
 park or the Catskill park, as defined in section 9-0101 of this chapter,
 may be modified or extinguished:
 (a) as provided in the instrument creating the easement; or
 (b) upon the exercise of the power of eminent domain; or
 (c) unless such easement is held by the state, in a proceeding
 pursuant to section nineteen hundred fifty-one of the real property
 actions and proceedings law; or
 (d) where such easement is held by the state, upon a determination by
 the commissioner, after a non-adjudicatory public hearing, at which the
 public shall be given opportunity to be heard, that the easement can no
 longer substantially accomplish its original purposes or any of the
 purposes set forth in section 49-0301 of this title. 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 subdivision five of section 49-0305 of this
 title at such address as such person shall file with the commissioner;
 or
 (e) where land subject to a conservation easement or an interest in
 such land is required for a major utility transmission facility which
 has received a certificate of environmental compatibility and public
 need pursuant to article seven of the public service law or is required
 for a major steam electric generating facility which has received a
 certificate or environmental compatibility and public need pursuant to
 article eight of the public service law, upon the filing of such
 certificate in a manner prescribed for recording a conveyance of real
 property pursuant to section two hundred ninety-one of the real property
 law or any other applicable provision of law, provided that such
 certificate contains a finding that the public interest in the
 conservation and protection of the natural resources, open spaces and
 scenic beauty of the Adirondack or Catskill parks has been considered.
 4. Where a conservation easement is modified or extinguished pursuant
 to paragraph (d) of subdivision two or paragraph (e) of subdivision
 three of this section, such easement shall be modified or extinguished
 only to the minimum extent necessary to accommodate the facility which
 is the subject of the certificate of environmental compatibility and
 public need.
 5. Nothing in this section shall be construed to preclude the
 extinguishment or modification of a conservation easement pursuant to
 the applicable provisions of the federal natural gas act (15
 U.S.C.  717-717 w).
 
 49-0309. Scope of this title.
 
 This title shall not affect any interests or rights in real property
 which are not conservation easements, and shall not affect the rights of
 owners to convey any interests in real property which they could now
 create under existing law without reference to the terms of this title.
 Nothing in this title shall diminish the powers granted by any other law
 to acquire interests or rights in real property by purchase, gift,
 eminent domain or otherwise and to use the same for public purposes.
 Nothing in this title shall be construed to alter the authority
 otherwise available to any public body to acquire conservation easements
 for the purposes of section 49-0301 of this title by eminent domain.
 
 49-0311. Severability.
 
 The provisions of this title shall be severable, and if any clause,
 sentence, paragraph, subdivision or part of this title shall be adjudged
 by any court of competent jurisdiction to be invalid, such judgment
 shall not affect, impair or invalidate the remainder thereof, but shall
 be confined in its operation to the clause, sentence, paragraph,
 subdivision or part thereof directly involved in the controversy in
 which such judgment shall have been rendered; provided that if a
 conservation easement created pursuant to this title is determined by
 any court of competent jurisdiction to be land or water or an interest
 in land or water subject to the provisions of article fourteen of the
 constitution then the authority of the state to hold or acquire such
 easement and the conveyance to the state of such easement shall be void
 ab initio.