ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 447
(Senators Yoder, Ross, Dittmar and Grubb, original sponsors)
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[Passed March 9, 1995; in effect ninety days from passage.]
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AN ACT to amend chapter twenty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by
adding thereto a new article, designated article twelve,
relating generally to the creation, conveyance,
acceptance, duration and validity of conservation and
preservation easements; creating the "Conservation and
Preservation Easements Act"; defining the purpose of such
act; defining the terms used in the act; outlining the
procedure for the creation and transfer of conservation
and preservation easements; describing who may bring judicial actions; actions the court may take with regard
to certain easements; grounds for the validity of the
easements; the applicability of the article; and the
construction of the article.
Be it enacted by the Legislature of West Virginia:
That chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article twelve, to
read as follows:
ARTICLE 12. CONSERVATION AND PRESERVATION EASEMENTS.
§20-12-1. Short title.
This article shall be known and may be cited as the
"Conservation and Preservation Easements Act".
§20-12-2. Purpose of article.
The West Virginia Legislature recognizes the importance
and significant public benefit of conservation and preservation
easements in its ongoing efforts to protect the natural,
historic, agricultural, open-space and scenic resources of this
state.
§20-12-3. Definitions.
The following words and phrases when used in this article have the meanings given to them in this section unless the
context clearly indicates otherwise:
(a) "Conservation easement" means a nonpossessory interest
of a holder in real property, whether appurtenant or in gross,
imposing limitations or affirmative obligations, the purposes
of which include, but are not limited to, retaining or
protecting for the public benefit the natural, scenic or open-
space values of real property; assuring its availability for
agricultural, forest, recreational or open-space use;
protecting natural resources and wildlife; maintaining or
enhancing land, air or water quality; or preserving the
historical, architectural, archaeological or cultural aspects
of real property.
(b) "Holder" means:
(1) A governmental body empowered to hold an interest in
real property under the laws of this state or the United
States.
(2) A charitable corporation, charitable association or
charitable trust registered with the secretary of state and
exempt from taxation pursuant to Section 501(c)(3) of the
Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. Section 501(c)(3), or other federal or state statutes or rules,
the purposes or powers of which include retaining or protecting
the natural, scenic, agricultural or open-space values of real
property; assuring the availability of real property for
agricultural, forest, recreational or open-space use;
protecting natural resources and wildlife; maintaining or
enhancing land, air or water quality; or preserving the
historical, architectural, archaeological or cultural aspects
of real property.
(c) "Preservation easement" means a nonpossessory interest
in an historical building.
(d) "Third-party right of enforcement" means a right
provided in a conservation or preservation easement, in order
to enforce any of its terms, granted to a governmental body,
charitable corporation, charitable association or charitable
trust, which, although eligible to be a holder, is not a
holder.
§20-12-4. Creation, transfer and duration.
(a) Except as otherwise provided in this article, a
conservation or preservation easement may be created, conveyed,
recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements.
(b) No right or duty of a holder, successive holder named
in the easement deed or person having a third-party right of
enforcement arises under a conservation or preservation
easement before the easement's acceptance by the holder,
successive holder or third party with right of enforcement and
a recordation of the acceptance.
(c) Except as provided in subsection (b), section five of
this article, a conservation or preservation easement created
after the effective date of this article may be perpetual in
duration, but in no event shall be for a duration of less than
twenty-five years.
(d) An interest in real property in existence at the time
a conservation or preservation easement is created, including
an unrecorded lease for the production of minerals or removal
of timber, shall not be impaired unless the owner of such
interest is a party to the easement or expressly consents to
comply with the restriction of such easement.
§20-12-5. Judicial and related actions.
(a) An action affecting a conservation or preservation
easement may be brought by any of the following:
(1) An owner of an interest in the real property burdened
by the easement;
(2) A holder of the easement;
(3) A person having a third-party right of enforcement; or
(4) A person, agency or entity otherwise authorized by
state or federal law.
(b) This article does not affect the power of a court to
modify or terminate a conservation or preservation easement in
accordance with the principles of law and equity consistent
with the public policy of this article as stated under section
two of this article, when the easement is broadly construed to
effect that policy. Notwithstanding provision of law to the
contrary, conservation and preservation easements shall be
liberally construed in favor of the grants contained therein to
effect the purposes of those easements and the policy and
purpose of this article.
(c) A holder, governmental entity or other person may not
exercise the right of eminent domain or the power of
condemnation to acquire a conservation easement without
condemning or exercising the right of eminent domain as to the
entire fee interest of the property: Provided, That any public utility regulated pursuant to the provisions of chapter
twenty-four of this code or any public service enterprise
subject to the provisions of the Natural Gas Act, title XV,
United States Code, Section 717, et seq., or the Federal Power
Act, title XV, United States Code, Section 794a, et seq., or
any successor statute for the regulation of public utility or
public service business, may condemn land or an interest in
land subject to a conservation or preservation easement for any
purpose authorized by the governing regulatory statute or by
the administrative agency established under the statute.
Nothing in this article may be construed to limit the lawful
exercise of the right of eminent domain or the power of
condemnation by any person or entity having such power, or the
right of any real property owner to compensation by reason of
the lawful exercise of such right of eminent domain or power of
condemnation for any estate or interest in real property except
a conservation or preservation easement authorized by this
article.
§20-12-6. Validity.
(a) A conservation or preservation easement is valid even
though:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to another holder;
(3) It is not of a character that has been recognized
traditionally as common law;
(4) It imposes a negative burden;
(5) It imposes affirmative obligations upon the owner of
an interest in the burdened property or upon the holder;
(6) The benefit does not touch or concern real property;
or (7) There is no privity of estate or of contract.
(b) To be enforceable under the provisions of this
article, a conservation or preservation easement shall be
recorded within sixty days of the effective date of the
easement. Upon proper recording, the provisions of this article
apply retroactively to the effective date of the easement.
§20-12-7. Applicability.
(a) This article applies to any interest created after the
effective date of this article, whether designated as a
conservation or preservation easement or as a covenant,
equitable servitude, restriction, easement or otherwise.
(b) This article applies to any interest created before
the effective date when the interest would have been enforceable had it been created after its effective date,
unless retroactive application contravenes the constitution or
laws of the United States or of this state. No conservation
easement or preservation easement created prior to the
effective date of this article may be invalidated by reason of
the enactment of this article when the conservation easement or
preservation easement was valid under the law in effect at the
time of its creation.
(c) This article does not invalidate any interest, whether
designated as a conservation or preservation easement or as a
covenant, equitable servitude, restriction, easement or
otherwise, that is enforceable under another law of this state.
§20-12-8. Uniformity of application and construction.
This article shall be applied and construed to effectuate
its general purpose to make uniform the laws with respect to
the subject of this article among states enacting similar laws.
Except as expressly otherwise provided, nothing contained in
this article is intended to be construed to alter applicable
established common law. In a manner consistent with common
law, the granting of a conservation or preservation easement
shall not subsequently restrict the right of the fee owner to further grant any other interest in real property to any person
or entity when the grant does not materially impair the prior
conservation or preservation easement. When a fee holder grants
an interest beyond the conservation or preservation easement,
he shall notify the holder of any conservation or preservation
easement at least forty-five days prior to the execution of any
subsequent easement or any other conveyance of an interest in
land encompassed by the conservation or preservation easement.