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.