Chapter 412
H.P. 1220 - L.D. 1737
An Act To Amend the Conservation Easement Laws
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 33 MRSA §476, sub-§3, as enacted by PL 1985, c. 395, §3, is amended to read:
3. Real property.
"Real property" includes without limitation surface waters.
Sec. 2. 33 MRSA §477, sub-§1, as enacted by PL 1985, c. 395, §3, is amended to read:
1. Conservation easement.
Except as otherwise provided in this subchapter, a conservation easement may be created, conveyed, recorded, assigned , or partially released , modified, terminated or otherwise altered or affected in the same manner as other easements created by written instrument. A conservation easement may be terminated or amended by the parties only as provided in section 477-A, subsection 2.
Sec. 3. 33 MRSA §477, sub-§3, ¶B, as enacted by PL 1985, c. 395, §3, is amended to read:
B. Change of circumstances renders the easement no longer in the public interest as determined by the court as provided in section 477-A, subsection 2, paragraph B in an action under section 478.
Sec. 4. 33 MRSA §477-A is enacted to read:
1. Conservation values.
A conservation easement executed on or after the effective date of this section must include a statement of the conservation purposes of the easement, the conservation attributes associated with the real property and the benefit to the general public intended to be served by the restriction on uses of the real property subject to the conservation easement.
2. Amendment and termination.
Amendments and termination of a conservation easement may occur only pursuant to this subsection. A. A conservation easement executed on or after the effective date of this section must include a statement of the holder's power to agree to amendments to the terms of the conservation easement in a manner consistent with the limitations of paragraph B.
B. A conservation easement may not be terminated or amended in such a manner as to materially detract from the conservation values intended for protection without the prior approval of the court in an action in which the Attorney General is made a party. In making this determination, the court shall consider, among other relevant factors, the purposes expressed by the parties in the easement and the public interest. If the value of the landowner's estate is increased by reason of the amendment or termination of a conservation easement, that increase must be paid over to the holder or to such nonprofit or governmental entity as the court may designate, to be used for the protection of conservation lands consistent, as nearly as possible, with the stated publicly beneficial conservation purposes of the easement.
3. Monitoring.
The holder of a conservation easement shall monitor the condition of the real property subject to the conservation easement at least every 3 years and shall prepare and retain a written monitoring report in its permanent records. The holder shall make available to the landowner, upon request, a copy of the monitoring report.
4. Failure to comply.
Failure to comply with the requirements of subsection 1, subsection 2, paragraph A or subsection 3 does not invalidate a conservation easement otherwise entitled to the protections of this subchapter.
Sec. 5. 33 MRSA §478, as enacted by PL 1985, c. 395, §3, is amended to read:
1. Action or intervention.
An action affecting a conservation easement may be brought or intervened in by: A. An owner of an interest in the real property burdened by the easement;
B. A holder of the easement; or
C. A person having a 3rd-party right of enforcement . ; or
D.
The Attorney General; except that the Attorney General may initiate action seeking enforcement of a conservation easement only when the parties designated as having the right to do so under the terms of the conservation easement:
(1) Are no longer in legal existence;
(2) Are bankrupt or insolvent;
(3) Cannot be contacted after reasonable diligence to do so; or
(4) After 90 days' prior written notice by the Attorney General of the nature of the asserted failure, have failed to take reasonable actions to bring about compliance with the conservation easement.
2. Intervention only.
An action affecting a conservation easement may be intervened in by the State or a political subdivision of the State in which the real property burdened by the easement is located , in accordance with court rules for permissive intervention.
3. Power of court.
This subchapter does not affect the power of a The court to may permit termination of a conservation easement or approve amendment to a conservation easement that materially detracts from the conservation values it serves, as provided in section 477-A, subsection 2, paragraph B, and may enforce a conservation easement by injunction or proceeding at law and in equity or to modify or terminate a conservation easement in accordance with principles of law and equity. A court may deny equitable enforcement of a conservation easement only when it finds that change of circumstances has rendered that easement no longer in the public interest or no longer serving the publicly beneficial conservation purposes identified in the conservation easement. If the court so finds, the court may allow damages as the only remedy in an action to enforce the easement. No comparative economic test may be used to determine under this subsection if a conservation easement is in the public interest.
4. Confidentiality of records.
Documents and records obtained by the Attorney General, which would otherwise not legally be subject to public disclosure, may be shared with other public agencies but must be held as legally confidential under Title 1, section 402, unless disclosed in the course of a public proceeding in court.
No comparative economic test may be used to determine under this subchapter if a conservation easement is in the public interest or serves a publicly beneficial conservation purpose.
Sec. 6. 33 MRSA §479, sub-§7, as enacted by PL 1985, c. 395, §3, is amended to read:
7. No privity of estate or of contract.
There is no privity of estate or of contract; or
Sec. 7. 33 MRSA §479, sub-§8, as enacted by PL 1985, c. 395, §3, is amended to read:
8. Does not run to successors or assigns.
It does not run to the successor and assigns of the holder . ;
Sec. 8. 33 MRSA §479, sub-§9 is enacted to read:
9. Acquired for tax delinquency.
A lien has been established for property tax delinquency under Title 36, section 552, or title to the real property subject to the conservation easement has been acquired by procedures for enforcement and foreclosure of delinquent taxes under Title 36, chapter 105, subchapter 9; or
Sec. 9. 33 MRSA §479, sub-§10 is enacted to read:
10. Merger.
The title to the real property subject to the conservation easement has been acquired by the holder, unless the holder, with the consent of any 3rd party with rights of enforcement, replaces the conservation easement with legally binding restrictions under a conservation easement or declaration of trust at least as protective of the conservation values of the protected property as provided by the replaced easement.
Sec. 10. 33 MRSA §479-C is enacted to read:
A holder of a conservation easement that is organized or doing business in the State shall annually report to the Executive Department, State Planning Office the book and page number at the registry of deeds for each conservation easement that it holds, the municipality and approximate number of acres protected under each easement and such other information as the State Planning Office determines necessary to fulfill the purposes of this subchapter. The filing must be made by a date and on forms established by the State Planning Office to avoid duplicative filings when possible and otherwise reduce administrative burdens. The annual filing must be accompanied by a $30 fee. The State Planning Office shall maintain a permanent record of the registration and report to the Attorney General any failure of a holder disclosed by the filing or otherwise known to the State Planning Office. The fees established under this section must be held by the State Planning Office in a nonlapsing, special account to defray the costs of maintaining the registry and carrying out its duties under this section.
Sec. 11. Appropriations and allocations. The following appropriations and allocations are made.
EXECUTIVE DEPARTMENT
Land for Maine's Future Fund 0060
Initiative: Allocates funds to maintain the conservation easement registry.
| OTHER SPECIAL REVENUE FUNDS |
2007-08 |
2008-09 |
|
All Other
|
$3,060 |
$3,060 |
|
 |
|
| OTHER SPECIAL REVENUE FUNDS TOTAL |
$3,060 |
$3,060 |
Effective September 20, 2007