PRINTER'S NO. 2197
No. 1836 Session of 1993
INTRODUCED BY CURRY, GEORGE, KUKOVICH, VEON, D. R. WRIGHT,
ROONEY, GODSHALL, FREEMAN, YEWCIC, STERN, STABACK, CARONE,
PISTELLA, FAJT, STEELMAN, NICKOL, BUNT, BEBKO-JONES, RAYMOND,
MIHALICH, JOSEPHS, TRELLO, B. SMITH, McCALL, LEVDANSKY,
FAIRCHILD AND LAUGHLIN, JUNE 21, 1993
REFERRED TO COMMITTEE ON CONSERVATION, JUNE 21, 1993
AN ACT
1 Providing for the creation, conveyance, acceptance, duration and
2 validity of conservation and preservation easements; and
3 providing for judicial actions.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Conservation
8 and Preservation Easements Act.
9 Section 2. Purpose of act.
10 The General Assembly recognizes the importance and
11 significant public benefit of conservation and preservation
12 easements in its ongoing efforts to protect the natural,
13 historic, agricultural, open-space and scenic resources of this
14 Commonwealth.
15 Section 3. Definitions.
16 The following words and phrases when used in this act shall
17 have the meanings given to them in this section unless the
1 context clearly indicates otherwise:
2 "Conservation easement." A nonpossessory interest of a
3 holder in real property, whether appurtenant or in gross,
4 imposing limitations or affirmative obligations, the purposes of
5 which include, but are not limited to, retaining or protecting
6 natural, scenic or open-space values of real property; assuring
7 its availability for agricultural, forest, recreational or open-
8 space use; protecting natural resources and wildlife;
9 maintaining or enhancing land, air or water quality, or
10 preserving the historical, architectural, archaeological or
11 cultural aspects of real property.
12 "Holder." The term includes the following:
13 (1) A governmental body empowered to hold an interest in
14 real property under the laws of this Commonwealth or the
15 United States.
16 (2) A charitable corporation, charitable association or
17 charitable trust registered with the Bureau of Charitable
18 Organizations of the Department of State and exempt from
19 taxation pursuant to section 501(c)(3) of the Internal
20 Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §
21 501(c)(3)), or other Federal or Commonwealth statutes or
22 regulations, the purposes or powers of which include
23 retaining or protecting the natural, scenic, agricultural or
24 open-space values of real property; assuring the availability
25 of real property for agricultural, forest, recreational or
26 open-space use; protecting natural resources and wildlife;
27 maintaining or enhancing land, air or water quality, or
28 preserving the historical, architectural, archaeological or
29 cultural aspects of real property.
30 "Preservation easement." A nonpossessory interest in an
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1 historical building.
2 "Third-party right of enforcement." A right provided in a
3 conservation or preservation easement, in order to enforce any
4 of its terms, granted to a governmental body, charitable
5 corporation, charitable association or charitable trust, which,
6 although eligible to be a holder, is not a holder.
7 Section 4. Creation, transfer and duration.
8 (a) Action affecting an easement.--Except as otherwise
9 provided in this act, a conservation or preservation easement
10 may be created, conveyed, recorded, assigned, released,
11 modified, terminated or otherwise altered or affected in the
12 same manner as other easements, as long as the conservation and
13 preservation purposes of this act, set forth in section 3,
14 continue to be served.
15 (b) Acceptance.--No right or duty of a holder, successive
16 holder named in the easement deed or person having a third-party
17 right of enforcement arises under a conservation or preservation
18 easement before the easement's acceptance by the holder,
19 successive holder or third party with right of enforcement.
20 (c) Duration.--Except as provided in section 5(b), a
21 conservation or preservation easement is perpetual in duration
22 unless the instrument creating it provides otherwise.
23 (d) Existing interests.--An interest in real property in
24 existence at the time a conservation or preservation easement is
25 created is not impaired by it unless the owner of the interest
26 is a party to the easement or consents to it.
27 Section 5. Judicial and related actions.
28 (a) General rule.--An action affecting a conservation or
29 preservation easement may be brought by any of the following:
30 (1) An owner of an interest in the real property
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1 burdened by the easement.
2 (2) A holder of the easement.
3 (3) A person having a third-party right of enforcement.
4 (4) A person authorized by another law.
5 (b) Power of court.--This act does not affect the power of a
6 court to modify or terminate a conservation or preservation
7 easement in accordance with the principles of law and equity as
8 long as the public policy of this act as stated under section 2
9 is carried out to the fullest extent and the easement construed
10 broadly to effect that policy. Any general rule of construction
11 to the contrary notwithstanding, conservation and preservation
12 easements shall be liberally construed in favor of the grants
13 contained therein to effect the purposes of those easements and
14 the policy and purpose of this act.
15 (c) Impairment of rights.--Nothing in this act shall be
16 construed so as to impair the right of an entity with eminent
17 domain authority to exercise this authority over real property
18 subject to a conservation easement, or in lieu thereof to
19 purchase rights for its public purposes over real property
20 subject to a conservation easement without resort to
21 condemnation.
22 (d) Just compensation.--A court order issued under
23 subsection (c) or a purchase agreement in lieu of condemnation
24 shall provide for the holder of the easement to be compensated
25 for the fair market value of the easement as affected by the
26 court's adjudication or by the purchase in lieu of condemnation.
27 Any damages received by the holder shall be applied solely to
28 the public benefit in accordance with its charter or articles of
29 incorporation.
30 Section 6. Validity.
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1 A conservation or preservation easement is valid even though:
2 (1) it is not appurtenant to an interest in real
3 property;
4 (2) it can be or has been assigned to another holder;
5 (3) it is not of a character that has been recognized
6 traditionally at common law;
7 (4) it imposes a negative burden;
8 (5) it imposes affirmative obligations upon the owner of
9 an interest in the burdened property or upon the holder;
10 (6) the benefit does not touch or concern real property;
11 or
12 (7) there is no privity of estate or of contract.
13 Section 7. Applicability.
14 (a) Interests created after effective date.--This act shall
15 apply to any interest created after its effective date which
16 complies with this act, whether designated as a conservation or
17 preservation easement or as a covenant, equitable servitude,
18 restriction, easement or otherwise.
19 (b) Interests created before effective date.--This act shall
20 apply to any interest created before its effective date if the
21 interest would have been enforceable had it been created after
22 its effective date, unless retroactive application contravenes
23 the constitution or laws of the United States or of this
24 Commonwealth.
25 (c) Enforceable interests not invalidated.--This act does
26 not invalidate any interest, whether designated as a
27 conservation or preservation easement or as a covenant,
28 equitable servitude, restriction, easement or otherwise, that is
29 enforceable under another law of this Commonwealth.
30 (d) Agricultural Area Security Law.--Notwithstanding any
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1 other provision of this act, nothing contained in this act shall
2 be construed as altering, modifying or superseding either the
3 method of creating agricultural conservation easements or the
4 rights, duties, powers and obligations appurtenant to these
5 easements under the act of June 30, 1981 (P.L.128, No.43), known
6 as the Agricultural Area Security Law.
7 Section 8. Uniformity of application and construction.
8 This act shall be applied and construed to effectuate its
9 general purpose to make uniform the laws with respect to the
10 subject of this act among states enacting similar laws.
11 Section 9. Effective date.
12 This act shall take effect in 60 days.
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