§ 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, its 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.