Senate Bill 342 History
Senate Bill No. 342
(By Senators Kessler (Mr. President) and M. Hall,
By Request of the Executive)
[Introduced February 21, 2013; referred to the Committee on
Economic Development; and then to the Committee on Government
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §31-21-1, §31-21-2,
§31-21-3, §31-21-4, §31-21-5, §31-21-6, §31-21-7, §31-21-8,
§31-21-9, §31-21-10, §31-21-11, §31-21-12, §31-21-13, §31-21-
14, §31-21-15, §31-21-16, §31-21-17, §31-21-18, §31-21-19,
§31-21-20 and §31-21-21, all relating to authorizing the
creation of a public nonprofit corporation and governmental
instrumentality under the provisions of article two, chapter
thirty-one-e of said code, to collectively address several
environmental and economic development programs established to
promote the productive reuse of idled and underutilized
commercial, industrial and mining properties, support more efficient use of existing public infrastructure and encourage
increased job creation with living wages, renewed community
vitality and tax revenue generation while protecting public
health and our natural resources; providing short title;
declaring policy and purpose of article; defining terms;
creating West Virginia Land Stewardship Corporation; stating
certain tax requirements; setting forth powers and limitations
of West Virginia Land Stewardship Corporation; providing for
board of directors and composition of same; providing for
creation of voluntary land stewardship program; providing for
underwriting review of land stewardship program applicants;
authorizing establishment of state certified sites program;
setting forth minimum standards for certification under state
certified sites program; authorizing establishment of
voluntary state land bank program; permitting land stewardship
corporation to preserve property value of properties held by
land stewardship corporation; providing requirements for
handling of contaminated properties by land stewardship
corporation; providing for liberal construction of article;
exempting corporation from state and local taxes; requiring
audits and biannual reports; providing procedure for
dissolution of land stewardship corporation upon completion of purpose; providing provision for conflict of interest of land
stewardship corporation officers, employees and board members;
stating preservation of sovereign immunity; providing that
obligations of land stewardship corporation are not
obligations of the Department of Environmental Protection or
the state; and providing for severability.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §31-21-1, §31-21-2,
§31-21-3, §31-21-4, §31-21-5, §31-21-6, §31-21-7, §31-21-8, §31-21-
9, §31-21-10, §31-21-11, §31-21-12, §31-21-13, §31-21-14, §31-21-
15, §31-21-16, §31-21-17, §31-21-18, §31-21-19, §31-21-20 and §31-
21-21, all to read as follows:
ARTICLE 21. WEST VIRGINIA LAND STEWARDSHIP CORPORATION.
PART 1. SHORT TITLE, DECLARATION OF POLICY, PURPOSE OF ARTICLE
§31-21-1. Short title.
This article shall be known and may be cited as The West
Virginia Land Stewardship Corporation Act.
§31-21-2. Declaration of policy.
(a) The Legislature finds and declares that developable land
is one of West Virginia's most valuable resources in terms of net contributions to the state's economy and tax base.
(b) The Legislature further finds that:
(1) Due to topography, the state has somewhat limited amounts
of developable land and that promoting the productive reuse of
idled and underutilized commercial, industrial and mining
properties will maximize this valuable resource and foster reuse of
sites with existing public infrastructure;
(2) An entity that specializes in promoting the productive
reuse of idled or underutilized commercial, industrial and mining
properties will help the state and its citizenry to plan more
wisely for sustainable property reuse and economic development
(3) An entity created to address and reduce regulatory and
economic uncertainty by being a repository of site history and
remediation information about formerly used properties can be a
benefit to attracting new employers or encouraging businesses to
relocate, remain or expand within the state;
(4) An entity that assists the DEP with a voluntary land
stewardship program for the long-term safeguarding of remediated
sites using institutional controls and engineering controls can
ensure that the remedy remains protective of human health and the
(5) An entity that also assists in identifying formerly used
properties that are ready for redevelopment and construction within
twelve months or less from acquisition and certifies these
properties as "project-ready" for specific industry profiles can
increase economic development efforts within the state;
(6) An entity that also acts as a land bank to accept title to
formerly used properties as an intermediary step to help seek a
purchaser, and ready the properties for reuse through environmental
assessment, remediation, building demolition or other efforts, can
be a useful ally to the state, local governments, real estate
developers and businesses for transacting property conveyances,
redevelopment and creating or retaining jobs; and
(7) The promotion of private investment in our developable
land and West Virginia businesses will reduce unemployment by
creating new or maintaining existing opportunities for the citizens
of this state.
§31-21-3. Purpose of article.
The purpose of this article is to provide for the creation of
a special purpose nonprofit corporation with a comprehensive
(1) Assist the DEP in utilizing a voluntary land stewardship
program for the long-term safeguarding of IEC Sites to ensure that the remedy remains protective of human health and the environment
and to facilitate further economic development and reuse
(2) Provide the DEP and other parties with a reliable source
of oversight, monitoring and information about IEC Sites under the
voluntary land stewardship program;
(3) Establish a land bank as a legal and financial mechanism
to accept title to properties and assist in transforming idled and
underutilized properties back to productive reuse;
(4) Facilitate reuse and redevelopment by authorizing the
conveyance of certain properties to a land bank under a voluntary
land bank program and assist the state and local governments with
the assembly and clearance of title to property in a coordinated
(5) Promote economic growth by implementing a state certified
sites program to identify sites that are ready for construction
within twelve months or less and that are certified "project-ready"
for specific industry profiles as well as other categories of sites
identified for economic development opportunities;
(6) Provide voluntary programs on a fee or subscription basis
with the nonprofit corporation to protect human health and the
environment as well as assist with a variety of economic development efforts throughout the state; and
(7) Prescribe the powers and duties of the nonprofit
corporation; provide for the creation and appointment of a board to
govern the nonprofit corporation and to prescribe its powers and
duties; and to extend protections against certain environmental
liabilities to the nonprofit corporation in order to protect it
from liabilities created by third parties.
The following words used in this article, unless the context
clearly indicates a different meaning, are defined as follows:
(1) "Agreement" means any agreement being entered into between
the nonprofit corporation and a business, corporation, private
party or local or state government.
(2) "All appropriate inquiries" or "AAI" means the process of
evaluating a property's environmental conditions and assessing the
likelihood of any contamination. Every Phase I environmental
assessment must be conducted in compliance with the All Appropriate
Inquiries Final Rule at 40 CFR Part 312.
(3) "Board of directors" or "board" means the board of
directors of the corporation to be appointed under the provisions
of section seven of this article.
(4) "Certified sites" means those sites that are developable properties that have been prequalified as having proper land use
designation, utilities, transportation improvements, availability,
and pricing. Criteria for prequalification include, but are not
limited to, established pricing terms and conditions so that
property acquisition can be negotiated quickly and without time-
(5) "Charitable purposes" means the 501(c)(3) subclasses of
"lessening the burden of the government" where the government
identifies a need for the nonprofit entity to assist with a
governmental service and the nonprofit collaborates with the
government entity, and "environmental protection for the benefit of
the public" where the services of the corporation benefit the
general public by protecting public health and the environment as
well as assisting with state and local economic development
(6) "Contaminants" has the same meaning as defined in the
environmental acts referenced in subdivision (13) of this section.
(7) "Corporation" means the West Virginia Land Stewardship
Corporation, a nonstock, nonprofit corporation to be established
under the West Virginia Nonprofit Corporation Act, article two,
chapter thirty-one-e of this code, and with nonprofit status under
one or more charitable purposes under 501(c) of the Internal Revenue Code of 1986, as amended, or under any corresponding
section of any future tax code.
(8) "Corporate directors" means the members of the board of
directors of the corporation.
(9) "DEP" means the West Virginia Department of Environmental
Protection or any successor agency.
(10) "Enforcement tools" means any order, permit, consent
decree or environmental covenant or similar mechanisms which
restrict or control certain land uses implemented at IEC Sites.
(11) "Engineering controls" or "ECs" means physical controls
or measures designed to eliminate the potential for human exposure
to contamination by limiting direct contact with contaminated
areas, or controlling contaminants from migrating through
environmental media into soil, groundwater or off-site.
(12) "Enrolled sites" means properties enrolled and accepted
for participation in the voluntary Land Stewardship Program.
(13) "Environmental acts" means the Surface Coal Mining and
Reclamation Act set forth in article three, chapter twenty-two of
this code; the Air Pollution Control Act set forth in article five,
chapter twenty-two of this code; the Water Pollution Control Act
set forth in article eleven, chapter twenty-two of this code; the
Groundwater Protection Act set forth in article twelve, chapter twenty-two of this code; the Solid Waste Management Act set forth
in article fifteen, chapter twenty-two of this code; the Solid
Waste Landfill Closure Assistance Program set forth in article
sixteen, chapter twenty-two of this code; the Underground Storage
Tank Act set forth in article seventeen, chapter twenty-two of this
code; the Hazardous Waste Management Act set forth in article
eighteen, chapter twenty-two of this code; section 103(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U. S. C. §9603(a)); section 304 of the Emergency
Planning and Community Right-To-Know Act of 1986 (42 U. S. C.
§§11001 to 11050); the Occupational Safety and Health Act set forth
in 29 U. S. C. §§651 to 678; the Hazardous and Solid Waste
Amendments of 1984, as amended, set forth in 42 U. S. C. §§6901, et
seq.; and the Toxic Substances Control Act set forth in 15 U. S. C.
§§2601, et seq.; and any applicable regulations promulgated under
the foregoing environmental statutes.
(14) "Governmental controls" means any state laws, ordinances,
orders, permits, consent decrees and similar mechanisms which
restrict or control certain land uses implemented at IEC Sites in
(15) "IEC Sites" means sites in this state that have been
remediated or closed under a federal or state environmental program, including, but not limited to, brownfields, underground
storage tanks, closed landfills, open dumps, hazardous waste sites,
and former mining sites with ongoing water treatment as part of
mine reclamation efforts.
(16) "Informational devices" means deed notices or other
written documents that describe the remediation that was conducted
on an IEC Site, the constituents of concern, and the remediation
standards that were achieved. Informational devices shall be filed
with property records in the office of the county clerk of the
county in which the property is located as an advisory to provide
environmental information to future buyers or users of the IEC
(17) "Institutional Controls" or "ICs" means administrative
and legal controls that do not involve construction or physically
changing the site and are generally divided into four categories:
1) Government controls, 2) Proprietary controls, 3) Enforcement
tools, and 4) Informational devices. ICs are nonengineering
measures that help minimize the potential for human exposure to
contamination and/or protect the integrity of the remedy by
limiting land or resource use.
(18) "Nonprofit corporation" means a corporation established
under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code, to fulfill the purposes of this
(19) "Pollutants" has the same meaning as defined in the
environmental acts referenced in subdivision (13) of this section.
(20) "Proprietary controls" mean legal property interests
created under real property laws that rely on legal documents
recorded in the chain of title for the site, and "run with the
land" to bind future landowners. Examples of proprietary controls
include, but are not limited to, environmental covenants, deed land
use restrictions, water withdrawal prohibitions and continuing
right-of-entry easements for former owners or regulators to
inspect, monitor and maintain the IECs.
(21) "Regulated substances" has the same meaning as defined in
the environmental acts referenced in subdivision (13) of this
(22) "Releases" has the same meaning as defined in the
environmental acts referenced in subdivision (13) of this section.
PART 2. WEST VIRGINIA LAND STEWARDSHIP CORPORATION.
§31-21-5. Creation of the West Virginia Land Stewardship
Corporation; powers and limitations.
(a) The corporation shall be organized as a nonprofit,
nonstock corporation under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code, to fulfill the
purposes of this article.
(b) The corporation shall apply for recognition of nonprofit
exempt status by the United States Internal Revenue Service under
one or more charitable purposes within the meaning of section
501(c) of the Internal Revenue Code of 1986, as amended, or under
any corresponding section of any future tax code.
(c) The corporate name for the corporation shall be the "West
Virginia Land Stewardship Corporation."
(d) The corporation shall have all of the powers of a
nonprofit corporation as set forth in chapter thirty-one-e of this
(e) Except as otherwise provided in chapter thirty-one-e of
this code or in this article, the corporation may do all things
necessary or convenient to implement the purposes, objectives and
provisions of this article and the purposes, objectives and powers
delegated to the board of directors of a nonprofit corporation by
other laws or executive orders, including, but not limited to, all
of the following:
(1) Adopt, amend and repeal bylaws for the regulation of its
affairs and the conduct of its business;
(2) Establish the service offerings and related fees for such services under each of the voluntary programs described herein;
(3) Sue and be sued in its own name and plead and be
impleaded, including, but not limited to, defending the corporation
in an action arising or resulting from the services, programs and
responsibilities arising under this article;
(4) Solicit and accept gifts, grants, labor, loans, services
and other aid from any person, or the federal government, this
state or a political subdivision of this state or any agency of the
federal government or a state institution of higher education or
nonprofit affiliates or an intergovernmental entity created under
the laws of this state, or participate in any other way in a
program of the federal government;
(5) Procure insurance against risk and loss in connection with
the programs, property, assets or activities of the corporation;
(6) Invest money of the corporation, at the discretion of the
board of directors, in instruments, obligations, securities or
property determined proper by the board of directors of the
corporation and name and use depositories for its money;
(7) Employ legal and technical experts, contractors,
consultants, agents or employees, permanent or temporary, paid from
the funds of the corporation. The corporation shall determine the
qualifications, duties and compensation of those it employs;
(8) Contract for goods and services and engage personnel as
necessary, contract with Regional Brownfield Assistance Centers as
set out in section seven, article eleven, chapter eighteen-b of
this code, and engage the services of private consultants,
managers, legal counsel, engineers, accountants and auditors for
rendering professional environmental, legal and financial
assistance and advice payable from funds of the corporation;
(9) Create limited liability companies or other sole purpose
entities or devices to accept and hold real property as part of
administering its programs;
(10) Study, develop and prepare the reports or plans the
corporation considers necessary to assist it in the exercise of its
powers under this article and to monitor and evaluate progress
under this article;
(11) Enter into contracts for the management of, the
collection of rent from, or the sale of real property held by the
(f) The enumeration of a power in this article may not be
construed as a limitation upon the general powers of the
corporation. The powers granted under this article are in addition
to those powers granted by any other statute or as provided in
articles of incorporation filed with the Secretary of State.
(g) The property of the corporation and its income and
operations are exempt from all taxation by this state or any of its
(h) The corporation may not issue tax-exempt financing or
(i) The corporation does not have the power of eminent domain
or the ability to condemn property.
(j) The exercise by the corporation of powers and duties under
this article and its activities under the programs described herein
shall be considered a necessary public purpose and for the benefit
of the public.
(k) The corporation is not liable under the environmental acts
or common law equivalents to the state or to any other person by
virtue of the fact that the corporation is fulfilling the purposes
of this article including, but not limited to, providing land
stewardship services or accepting title to property under any
program established under this article unless:
(1) The corporation, its employees or agents directly cause an
immediate release or directly exacerbate a release of regulated
substances on or from a property that is an enrolled site or
accepted into the land bank program; or
(2) The corporation, its employees or agents knowingly and willfully do an action which causes an immediate release of
regulated substances or violates an environmental act. Liability
pursuant to this article is limited to the cost for a response
action which may be directly attributable to the corporation's
activities, and only if these activities are the proximate and
efficient cause of the release or violation. Ownership or control
of the property after accepting title in the land bank program does
not by itself trigger liability.
(l) The corporation shall adopt a code of ethics for its
directors, officers and employees.
(m) The corporation shall establish policies and procedures
requiring the disclosure of relationships that may give rise to a
conflict of interest. The board of directors of the corporation
shall require that any member of the board with a direct or
indirect interest in any matter before the corporation disclose the
member's interest to the governing body before the board takes any
action on the matter.
(n) The programs that are established under this article and
administered by the corporation are voluntary programs. Parties
can participate in the land stewardship program, certified sites
program and land bank program at their option.
(o) The state may contract with the corporation for services for properties for which the state is responsible and may enter
into long-term contracts for services that are funded under a trust
agreement or provided in an escrow account.
§31-21-6. Board of directors.
(a) The purposes, powers and duties of the corporation shall
be exercised by its board of directors. Board meetings shall be
chaired by the Governor or his or her designee. The corporation's
board shall also consist of the following ten members:
(1) The Governor shall appoint three residents of this state;
(2) The West Virginia Chamber of Commerce shall nominate three
residents of this state for the Governor's consideration, one of
whom the Governor shall appoint;
(3) The West Virginia Manufacturers' Association shall
nominate three residents of this state for the Governor's
consideration, one of whom the Governor shall appoint;
(4) The West Virginia Environmental Council shall nominate
three residents of this state for the Governor's consideration, one
of whom the Governor shall appoint;
(5) The Secretary of the DEP or his or her designee;
(6) The Secretary of the Department of Commerce or his or her
(7) One member of the Senate appointed by the Senate President who shall serve as an ex officio nonvoting member; and
(8) One member of the House of Delegates appointed by the
Speaker who shall serve as an ex officio nonvoting member.
(b) The members appointed by the Governor shall serve terms of
four years: Provided, That for the initial appointments the
Governor shall designate three to serve for four years each, two to
serve for three years each and one to serve for two years. When an
appointee resigns, dies or is removed during that person's term,
his or her successor shall be appointed for the remaining portion
of the unexpired term. Once appointed, a person may be reappointed
to successive four-year terms.
(c) Corporate directors shall serve without compensation, but
shall be reimbursed for actual and necessary expenses in accordance
with the regulations of the board.
(d) The corporate directors shall appoint a person to serve as
the executive director of the corporation and at the will and
pleasure of the board. A member of the board is not eligible to
hold the position of executive director.
(e) Subject to the approval of the board, the executive
director shall supervise, and be responsible for, the performance
of the functions and programs of the corporation under this
article. The executive director shall attend the meetings of the board and shall provide the board of directors with a regular
report describing the activities and financial condition of the
corporation. The executive director shall furnish the board of
directors with information or reports governing the operation of
the corporation as the board requires.
(f) The board may do all other things necessary or convenient
to achieve the objectives and purposes of the corporation or other
laws that relate to the purposes and responsibilities of the
PART 3. VOLUNTARY LAND STEWARDSHIP PROGRAM.
§31-21-7. Voluntary land stewardship program.
(a) When the voluntary land stewardship program is
implemented, remediation parties and site owners of IEC Sites will
have the option, for a fee, to participate in this program. The
fee shall be established by the corporation for services provided
for an enrolled site as that term is defined in section four of
this article. The fees once established may be revised from time
to time in the discretion of the board.
(b) The universe of sites or properties covered under this
section of this article includes, but is not limited to, those IEC
Sites remediated or closed under a federal or state environmental
program, including brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining
sites with ongoing water treatment as part of mine reclamation
(c) The corporation is further authorized to provide at a
minimum the following voluntary land stewardship services for
(1) Establish or maintain any ICs by filing the appropriate
documents or updating such documents when the site is leased,
conveyed, subdivided or when remediation occurs: Provided, That
the corporation's responsibilities for those activities are
expressly identified in agreements for the IEC Site that will be
negotiated when a site is enrolled in the voluntary land
(2) Conduct physical inspections of the enrolled sites,
including inspecting or monitoring any ECs (e.g., media treatment
systems, fences, caps and other mechanisms used as part of the
remedy at the IEC Site) and site activities to assure that the
enrolled sites continue to comply with the IECs, such as
maintenance of ECs and inspecting for compliance with restrictions
of specific land uses;
(3) Monitor and operate any required media treatment systems
and/or conduct routine surface water, groundwater and or gas monitoring and prepare any monitoring or inspection reports that
may be part of the corporation's responsibilities under site
(4) Conduct periodic reviews of the county land records to
monitor transfers or deed filings to assure that the records are
consistent with the required IECs for the enrolled sites, and
provide notices to the clerk of the county commission about the
results of monitoring or tracking of such records;
(5) Develop administrative records concerning the remediation
at enrolled sites in an electronic database, respond to inquiries
and coordinate the sharing of such data among various stakeholders,
including the DEP, current owners, the remediating parties if not
the owners, other state or local agencies (such as county and
regional economic development authorities), assessors, potential
purchasers, landowners and tenants;
(6) Develop and maintain records and information about
enrolled sites for posting on the DEP environmental registry, or
any other registry that is used for tracking IECs for IEC Sites in
West Virginia and provide for public access to such information;
(7) Coordinate and share data with West Virginia Miss Utility,
the "One-Call" System, including verifying the location of ECs on enrolled sites, providing information about remediation, and
sharing any health and safety plans or soil management plans that
may be associated with an enrolled site in order to assist any
planned excavation at the enrolled site.
The enrollment and acceptance process to participate in the
land stewardship program shall be developed to include an
underwriting review that focuses on: (1) The nature and extent of
contamination; (2) the selected remedy; (3) the type of services
selected and duration thereof; and (4) the financial costs and
risks associated with fulfilling the services.
PART 4. STATE CERTIFIED SITES PROGRAM.
§31-21-9. State certified sites program.
(a) This article hereby authorizes the establishment of a
statewide certified sites program. The program shall consist of
the development and preparation of certain site specific decision
ready documentation or reports that will enable the expedited
property transaction for sites that participate in the certified
(b) The objectives of the certified sites program include, but
are not limited to:
(1) Establishing an inventory of identified sites that are ready for development or redevelopment and construction within
twelve months or less from the date of acquisition and certify
these properties as "project-ready" for specific industry profiles
and other categories of developable properties available that can
increase economic development efforts within the state;
(2) Improving the state's competitive edge by giving more
certainty in time, steps and costs to businesses expanding or
locating within the state;
(3) Developing standard criteria that most real estate
developers or businesses need when selecting a site for
(4) Developing a central source of certified sites and
assisting local governments in identifying potential redevelopment
(5) Demonstrating that the state is committed to promoting and
expediting economic development projects for the benefit of its
(c) The corporation shall issue a site certification if it
determines that the decision ready document has been prepared and
completed in accordance with the requirements set forth by the
corporation. The corporation may require some or all of the
following information set forth in section ten of this article based on the site specific circumstances of the property to be
(d) The issuance of a site certification shall be based on the
review and approval of the information submitted to the corporation
in an application for the site certification.
§31-21-10. Minimum standards for certified sites.
(a) The corporation shall establish minimum standards that a
site must meet to be considered for certification. Minimum
standards include, but are not limited to:
(1) Letter of support from a mayor, county commissioner, or
county, regional, or municipal economic development official;
(2) Site ownership/control:
(A) Preliminary fifty-year title report and description of
liens and encumbrances, unless the corporation determines a shorter
period is adequate, or a longer period is necessary, to protect the
corporation and a subsequent purchaser of the site;
(B) Letter from the property owner/option holder stating that
the site is for sale/lease. If possible, proposed pricing or
transactional requirements with a description of any on-site
improvements, the current level of investment, and whether the
property can be parceled;
(C) Acreage; and
(D) Full legal property description.
(A) ALTA map;
(B) Site map showing lot layout, transportation access, roads
and likely access points;
(C) USGS topographical map; and
(D) Aerial map.
(4) Phase I environmental site assessment performed by a
certified professional within the prior six months, and, if
appropriate, any additional environmental site assessments
performed by a certified professional within the prior six months.
For any properties being remediated, documentation shall be
provided about the status and cleanup objectives. For remediated
sites, documentation shall be provided about liability protection.
(5) Wetland delineation demonstrating that impacts to waters
of the state will be avoided or a mitigation plan approved by the
(6) Water and wastewater infrastructure to the property line
with capacity clearly defined, or a demonstration of the ability to
construct and pay for the infrastructure up to the property line.
(7) Transportation infrastructure to the property line,
including, but not limited to, the type of roads near the site and whether the roads are local, state or U. S. roads.
(8) Electric infrastructure to the property line with its
capacity clearly identified.
(9) Natural gas infrastructure to the property line with its
capacity clearly identified.
(10) Water infrastructure to the property line with its
capacity clearly identified.
(11) Sewer infrastructure to the property line with its
capacity clearly identified.
(12) Telecommunications and/or high speed communications
infrastructure to the property line with its capacity clearly
(b) The complete list of certified sites criteria shall be
developed into a program application along with appropriate fees
for participation as the certified sites program is implemented,
and may be revised from time to time as warranted.
PART 5. LAND BANK PROGRAM.
§31-21-11. Land bank program.
(a) This article hereby authorizes the establishment of a
voluntary state land bank program. Under this program, the
corporation is authorized to acquire properties, hold title and
prepare them for future use. Prior to acquiring any properties, the corporation shall conduct all appropriate inquiries to
determine the environmental conditions or issues associated with a
particular property. The corporation shall not acquire title to
any property unless all pending liens have been satisfied and
released. Liabilities, including, but not limited to,
environmental liabilities, shall not pass to the corporation by its
acquisition of title. Participation in the land bank program under
this article shall not relieve an entity of any of its liabilities.
(b) The objective of the land bank program is to assist state
and local government efforts for economic development by accepting
formerly used or developable properties and preparing the
properties so they can be conveyed to other parties to locate or
expand businesses and create or retain jobs in this state.
(c) The corporation may acquire by gift, devise, transfer,
exchange, foreclosure, purchase or otherwise on terms and
conditions and in a manner the corporation considers proper, real
or personal property or rights or interests in real or personal
(d) Real property acquired by the corporation may be by
purchase and sale agreement, lease purchase agreement, installment
sales contract, land contract or otherwise as may be negotiated or
structured. The corporation may acquire real property or rights or interests in real property for any purpose the corporation
considers necessary to carry out the purposes of this article
including, but not limited to, one or more of the following
(1) Use or development of property the corporation has
(2) To facilitate the assembly of property for sale or lease
to any other public or private person, including, but not limited
to, a nonprofit or for profit corporation;
(3) To conduct environmental remediation and monitoring
(e) The corporation may also acquire by purchase, on terms and
conditions and in a manner the corporation considers proper,
property or rights or interests in property.
(f) The corporation may hold and own in its name any property
acquired by it or conveyed to it by this state, a foreclosing
governmental unit, a local unit of government, an intergovernmental
entity created under the laws of this state or any other public or
(g) All deeds, mortgages, contracts, leases, purchases or
other agreements regarding property of the corporation, including
agreements to acquire or dispose of real property, shall be approved by the board of directors and executed in the name of the
corporation or any single purpose entity created by the board for
(h) All property held by the corporation or a single purpose
entity created by the board for a transaction shall be inventoried
and classified by the corporation according to title status and
suitability for use.
(i) A document including, but not limited to, a deed
evidencing the transfer under this article of one or more parcels
of property to the corporation by this state or a political
subdivision of this state may be recorded within the office of the
county clerk of the county in which the property is located without
the payment of a fee.
§31-21-12. Preserve property value.
(a) The corporation may, without the approval of a local unit
of government in which property held by the corporation is located,
control, hold, manage, maintain, operate, repair, lease as lessor,
secure, prevent the waste or deterioration of, demolish and take
all other actions necessary to preserve the value of the property
held or owned directly by the corporation or by a single purpose
entity created by the board for that purpose.
(b) The corporation may take or perform the following with respect to property held or owned by the corporation or by any
special purpose entity created by the board:
(1) Grant or acquire a license, easement, or option with
respect to property as the corporation determines is reasonably
necessary to achieve the purposes of this article;
(2) Fix, charge, and collect rents, fees and charges for use
of property under the direct or indirect control of the corporation
or for services provided by the corporation;
(3) Take any action, provide any notice or institute any
proceeding required to clear or quiet title to property held by the
corporation in order to establish ownership by and vest title to
property in the corporation or a special purpose entity created by
the board; and
(4) Remediate environmental contamination on any property held
by the corporation.
(c) Except as the corporation otherwise agrees by agreement or
otherwise, on terms and conditions, and in a manner and for an
amount of consideration the corporation considers proper, fair and
valuable, including for no monetary consideration, the corporation
may convey, sell, transfer, exchange, lease as lessor or otherwise
dispose of property or rights or interests in property in which the
corporation directly or indirectly holds a legal interest to any public or private person for value determined by the corporation.
(d) The corporation shall be made a party to and shall defend
any action or proceeding concerning title claims against property
held directly or indirectly by the corporation.
§31-21-13. Contaminated property.
(a) If the DEP determines that conditions on a property
transferred to the corporation under this article present an
immediate threat to public health, safety and welfare, or to the
environment, the corporation may not convey, sell, transfer,
exchange, lease or otherwise dispose of the property until after a
determination by the DEP that the threat has been remediated and/or
eliminated and that conveyance, sale, transfer, exchange, lease or
other disposal of the property by the corporation will not
interfere with any of the DEP's response activities and will
coordinate with the DEP regarding the corporation's activities at
(b) If the corporation has reason to believe that property
held by the corporation may be the site of environmental
contamination, the corporation shall provide the DEP with any
information in the possession of the corporation that suggests that
the property may be the site of environmental contamination.
(c) If property held directly or indirectly by the corporation is a site impacted by contamination, pollution, hazardous
substances, hazardous or other wastes as defined in the
environmental acts described in section four of this article, prior
to the sale or transfer of the property under this section, the
property is subject to all of the following:
(1) Upon reasonable written notice from the DEP, the
corporation shall provide access to the DEP, its employees, its
contractors and any other person expressly authorized by the DEP to
conduct an investigation and/or response activities at the
property. Reasonable written notice may include, but is not
limited to, notice by electronic mail or facsimile, in advance of
access as the DEP and corporation may agree.
(2) If the DEP determines it is necessary to protect public
health, safety and welfare or the environment, the corporation
shall place and record deed restrictions on the property as
authorized under state environmental statutes.
§31-21-14. Liberal construction.
This article shall be construed liberally to effectuate the
legislative intent and the purposes as complete and independent
authorization for the performance of every act and thing authorized
by this article. All powers granted shall be broadly interpreted
to effectuate the intent and purposes of this article and not as a limitation thereof. The corporation has complete control as if it
is a private property owner.
§31-21-15. Exemption from taxation.
The property of the corporation shall be exempt from ad
valorem property taxation. The corporation shall be exempt from
the taxes imposed by chapter eleven of this code, except that the
corporation shall comply with the employer withholding of tax
requirements in sections seventy-one through seventy-six, article
twenty-one of said chapter eleven. The corporation shall be exempt
from sales and use taxes, business and occupation taxes and all
other taxes imposed by a county commission, a municipal corporation
or other unit of local government, whether now or hereinafter in
§31-21-16. Audits and reports.
(a) As soon as possible after the close of each year, the
corporation shall cause an annual audit to be made by an
independent certified public accountant of its books, records,
accounts and operations. The person performing this audit shall
furnish copies of the audit report to the Governor, the secretary
of the DEP and the Joint Committee on Government and Finance of the
(b) The corporation shall report biannually to the Joint Committee on Government and Finance of the Legislature on the
activities of the corporation. The first report shall be filed on
or before the second Wednesday in January, 2016.
§31-21-17. Completed purpose.
If the corporation has completed the purposes for which the
corporation was organized, the board of directors, by vote of at
least a majority of a quorum of the directors and with the written
consent of the Governor, may provide for the dissolution of the
corporation and may provide for the transfer of any property held
by the corporation as required by agreement or, if there are no
related agreements, then to the DEP or another state agency or to
another nonprofit corporation as directed by the DEP.
§31-21-18. Conflicts of interest.
Notwithstanding any other provision of this article to the
contrary, officers and employees of the corporation and its board
of directors may hold appointments to offices of any other
corporations or businesses and be corporate directors or officers
or employees of other entities but are prohibited to be a party or
otherwise participate in the transfer of real property and funds
from the corporation to the corporations or businesses for which
§31-21-19. No waiver of sovereign immunity.
Nothing contained in this article may be determined or
construed to waive or abrogate in any way the sovereign immunity of
the state or to deprive the nonprofit corporation created pursuant
to this article, its board of directors, or any officer or employee
thereof of sovereign immunity.
§31-21-20. No obligation of the state.
Obligations of the corporation are not debts or obligations of
the DEP or the state.
If any portion of this article or the application of any
provision of this article to any person is held invalid, such
invalidity shall not affect other provisions or applications of
this article, and to this end the provisions of this article are
declared to be severable.
NOTE: The purpose of this bill is to authorize the creation
of a public nonprofit corporation and governmental instrumentality
under the provisions of article two, chapter thirty-one-e of the
code, to collectively address several environmental and economic
development programs. The corporation is established to promote
the productive reuse of idled and underutilized commercial,
industrial and mining properties; to support more efficient use of
existing public infrastructure; encourage increased job creation
with living wages, renewed community vitality and tax revenue
generation while protecting public health and our natural
This article is new; therefore, strike-throughs and
underscoring have been omitted.