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        PRIOR PRINTER'S NOS. 1078, 1591               PRINTER'S NO. 1868

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 975 Session of 2001


        INTRODUCED BY BUNT, CURRY, FREEMAN, DALEY, ARGALL, ARMSTRONG,
           M. BAKER, BARD, BARRAR, BEBKO-JONES, BELFANTI, CALTAGIRONE,
           CAPPABIANCA, CAPPELLI, CLYMER, L. I. COHEN, CORNELL, COY,
           CRUZ, DAILEY, DeWEESE, FAIRCHILD, FEESE, FICHTER, FRANKEL,
           GEORGE, GODSHALL, GORDNER, GRUCELA, HARHAI, HARPER,
           HENNESSEY, HERMAN, HERSHEY, HESS, KREBS, LAUGHLIN, LEDERER,
           LEVDANSKY, MAJOR, MANN, McCALL, McGILL, McILHINNEY,
           S. MILLER, MUNDY, NICKOL, PHILLIPS, ROSS, RUBLEY, SATHER,
           SAYLOR, SCHRODER, SEMMEL, SHANER, B. SMITH, SOLOBAY, STAIRS,
           STEELMAN, STERN, STETLER, STURLA, E. Z. TAYLOR, TRELLO, VEON,
           WILT, MARSICO, WATSON, TANGRETTI, R. MILLER, BASTIAN,
           J. TAYLOR, HARHART, JAMES, MANDERINO, SCRIMENTI, THOMAS AND
           GABIG, MARCH 13, 2001

        AS RE-REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF
           REPRESENTATIVES, AS AMENDED, MAY 7, 2001

                                     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,


     1  historic, agricultural, open-space and scenic resources of this
     2  Commonwealth.
     3  Section 3.  Definitions.
     4     The following words and phrases when used in this act shall
     5  have the meanings given to them in this section unless the
     6  context clearly indicates otherwise:
     7     "Conservation easement."  A nonpossessory interest of a
     8  holder in real property, whether appurtenant or in gross,
     9  imposing limitations or affirmative obligations, the purposes of
    10  which include, but are not limited to, retaining or protecting
    11  for the public benefit the natural, scenic or open-space values
    12  of real property; assuring its availability for agricultural,
    13  forest, recreational or open-space use; protecting natural
    14  resources and wildlife; maintaining or enhancing land, air or
    15  water quality or preserving the historical, architectural,
    16  archaeological or cultural aspects of real property.
    17     "Holder."  The term means the following:
    18         (1)  A governmental body empowered to hold an interest in
    19     real property under the laws of the United States or this
    20     Commonwealth.
    21         (2)  A charitable corporation, charitable association or
    22     charitable trust registered with the Bureau of Charitable
    23     Organizations of the Department of State and exempt from
    24     taxation pursuant to section 501(c)(3) of the Internal
    25     Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §
    26     501(c)(3)), or other Federal or Commonwealth statutes or
    27     regulations, the purposes or powers of which include
    28     retaining or protecting the natural, scenic, agricultural or
    29     open-space values of real property; assuring the availability
    30     of real property for agricultural, forest, recreational or
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     1     open-space use; protecting natural resources and wildlife;
     2     maintaining or enhancing land, air or water quality or
     3     preserving the historical, architectural, archaeological or
     4     cultural aspects of real property.
     5     "Preservation easement."  A nonpossessory interest in a
     6  historical building.
     7     "Successive holder."  A holder who is not the original holder
     8  and who acquired its interest in a conservation or preservation
     9  easement by assignment or transfer.
    10     "Third-party right of enforcement."  A right to enforce the
    11  terms of a conservation or preservation easement granted to a
    12  governmental body, charitable corporation, charitable
    13  association or charitable trust, which, although eligible to be
    14  a holder, is not a holder.
    15  Section 4.  Creation, transfer and duration.
    16     (a)  Creating an easement.--Except as otherwise provided in
    17  this act, a conservation or preservation easement may be
    18  created, conveyed, recorded, assigned, released, modified,
    19  terminated or otherwise altered or affected in the same manner
    20  as other easements.
    21     (b)  Scope.--A conservation easement may encompass an entire
    22  fee simple interest in a parcel of real property as described in
    23  the deed to the property, or any portion thereof or estate
    24  therein. Except when referencing an easement's boundary using
    25  setback descriptions from existing deed boundaries or natural or
    26  artificial features, such as streams, rivers or railroad rights-
    27  of-way, a metes and bounds description of the portion of
    28  property subject to the easement shall be provided in the
    29  easement document.
    30     (c)  Acceptance.--No right or duty of a holder, successive
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     1  holder named in the conservation or preservation easement or
     2  person having a third-party right of enforcement may arise under
     3  a conservation or preservation easement before the acceptance of
     4  the easement by the holder, successive holder or third party
     5  with right of enforcement and recordation of the acceptance.
     6     (d)  Duration.--Except as provided in section 5(c), a
     7  conservation or preservation easement created after the
     8  effective date of this act may be perpetual in duration but in
     9  no event shall be for a duration of less than 25 years. To the
    10  extent the easement is in gross, the easement shall be
    11  transferred to a willing successive holder, should the original
    12  holder or the original holder or successive holder be dissolved
    13  or otherwise cease to exist, in order to accomplish the goal of
    14  the easement. If a willing successive holder cannot be
    15  identified, the municipality in which the easement is located
    16  shall automatically become the successive holder for perpetuity
    17  or the remaining term of the easement. Upon expiration of the
    18  easement, the holder shall terminate the easement by recording a
    19  written document in the same office of recorder of deeds where
    20  the easement was first recorded.
    21     (e)  Existing interests.--An interest in real property in
    22  existence at the time a conservation or preservation easement is
    23  created, including easements intended to provide services of a
    24  public utility nature, and operating rights and easements
    25  appurtenant to real property contiguous to real property
    26  burdened by the easement which are of record or which arise by
    27  operation of law, may not be impaired unless the owner of the
    28  interest is a party to the easement or consents in writing to
    29  comply with the restrictions of such easement.
    30  Section 5.  Judicial and related actions.
    20010H0975B1868                  - 4 -

     1     (a)  Persons who have standing.--A legal or equitable action
     2  affecting a conservation or preservation easement may only be
     3  brought by any of the following:
     4         (1)  An owner of the real property burdened by the
     5     easement.
     6         (2)  A person that holds an estate in the real property
     7     burdened by the easement.
     8         (3)  A person that has any interest or right in the real
     9     property burdened by the easement.
    10         (4)  A holder of the easement.
    11         (5)  A person having a third-party right of enforcement.
    12         (6)  A person otherwise authorized by Federal or State
    13     law.
    14         (7)  The owner of a coal interest in property contiguous
    15     to the property burdened by the easement or of coal interests
    16     which have been severed from the ownership of the property
    17     burdened by the easement.
    18     (b)  Limitation on actions.--No action may be brought for
    19  activities occurring outside the boundaries of a conservation or
    20  preservation easement except in circumstances where such
    21  activities have or pose a substantial threat of direct,
    22  physically identifiable effects within the boundaries of the
    23  easement.
    24     (c)  Authority of courts.--
    25         (1)  This act shall not affect the power of a court to
    26     modify or terminate a conservation or preservation easement
    27     in accordance with the principles of law and equity
    28     consistent with the public policy of this act as stated under
    29     section 2 when the easement is broadly construed to effect
    30     that policy.
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     1         (2)  Any general rule of construction to the contrary
     2     notwithstanding, conservation or preservation easements shall
     3     be liberally construed in favor of the grants contained
     4     therein to effect the purposes of those easements and the
     5     policy and purpose of this act.
     6     (d)  Eminent domain right preserved.--
     7         (1)  Nothing in this act shall be construed either:
     8             (i)  to limit the lawful exercise of the right of
     9         eminent domain or the power of condemnation by any person
    10         or entity having such power over real property subject to
    11         a conservation or preservation easement by any person or
    12         entity having legal authority to do so, or in lieu
    13         thereof; or
    14             (ii)  to limit the right of such person or entity to
    15         purchase rights for its public purposes over real
    16         property subject to a conservation or preservation
    17         easement without resort to condemnation.
    18         (2)  In the event of exercise of eminent domain, nothing
    19     in this act shall be construed so as to restrict any right to
    20     compensation a holder of a conservation or preservation
    21     easement may have under applicable law.
    22     (e)  Just compensation.--A court order issued under
    23  subsection (d) shall provide for the holder of the easement to
    24  be compensated in accordance with the applicable provisions of
    25  the conservation or preservation easement which specify a
    26  particular allocation of damages and, in the absence of such a
    27  provision, for the fair market value of the easement. Nothing in
    28  this act shall be construed to prevent a purchase agreement in
    29  lieu of condemnation as a means of settling such claims by
    30  providing either the specifically allocated damages or the fair
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     1  market value to the holder of the easement. The net proceeds of
     2  the condemnation received by the holder shall be applied in
     3  furtherance of the public benefit in accordance with its charter
     4  or articles of incorporation. The court in adjudicating damages
     5  to a conservation or preservation easement shall be guided by
     6  principles generally applicable to condemnation proceedings.
     7  Section 6.  Validity.
     8     A conservation or preservation easement is valid even though:
     9         (1)  it is not appurtenant to an interest in real
    10     property;
    11         (2)  it can be or has been assigned to another holder;
    12         (3)  it is not of a character that has been recognized
    13     traditionally at common law;
    14         (4)  it imposes a negative burden;
    15         (5)  it imposes affirmative obligations upon the owner of
    16     an interest in the burdened property or upon the holder;
    17         (6)  the benefit does not touch or concern real property;
    18         (7)  there is no privity of estate or of contract; or
    19         (8)  the holder is or becomes the owner in fee of the
    20     subject property.
    21  Section 7.  Applicability.
    22     (a)  Interests created after effective date.--This act shall
    23  apply to any interest created after the effective date of this
    24  act which complies with this act, whether designated as a
    25  conservation or preservation easement or as a covenant,
    26  equitable servitude, restriction, easement or otherwise.
    27     (b)  Interests created before effective date.--This act shall
    28  apply to any interest created before the effective date of this
    29  act when the interest would have been enforceable had it been
    30  created after the effective date of this act, and has been
    20010H0975B1868                  - 7 -

     1  recorded or, if not previously recorded, is recorded or
     2  otherwise placed of record within 180 days of the effective date
     3  of this act unless retroactive application contravenes the
     4  Constitution of the United States or laws of the United States
     5  or of this Commonwealth.
     6     (c)  Enforceable interests not invalidated.--This act does
     7  not invalidate any interest, whether designated as a
     8  conservation or preservation easement or as a covenant,
     9  equitable servitude, restriction, easement or otherwise,
    10  enforceable under another law of this Commonwealth or the common
    11  law.
    12     (d)  Agricultural Area Security Law.--Notwithstanding any
    13  other provision of this act, nothing contained in this act shall
    14  be construed as altering, modifying or superseding either the
    15  method of creating agricultural conservation easements or the
    16  rights, duties, powers and obligations appurtenant to these
    17  easements under the act of June 30, 1981 (P.L.128, No.43), known
    18  as the Agricultural Area Security Law.
    19  Section 8.  Uniformity of application and construction.
    20     This act shall be applied and construed to effectuate its
    21  general purpose to make uniform the laws with respect to the
    22  subject of this act among states enacting similar laws. Except
    23  as expressly otherwise provided in this act, nothing in this act
    24  is intended to be construed to alter applicable established       <--
    25  common law. In a manner consistent with common law, the granting
    26  of a conservation or preservation easement shall not in any way
    27  restrict the right of the fee owner to grant any other interest
    28  to any person or entity for any purpose in the real property,
    29  provided, however, that the holder of a conservation or
    30  preservation easement shall be given 30 days' written notice
    20010H0975B1868                  - 8 -

     1  prior to execution of the subsequent interest in real property.
     2  OR SUPERSEDE APPLICABLE LAW PERTAINING TO THE CREATION,           <--
     3  PERFECTION, PRIORITY OR ENFORCEABILITY OF INSTRUMENTS, AFFECTING
     4  REAL ESTATE, INCLUDING CONSERVATION OR PRESERVATION EASEMENTS.
     5  THE OWNER OF REAL PROPERTY WHICH IS SUBJECT TO A CONSERVATION OR
     6  PRESERVATION EASEMENT RETAINS THE RIGHT TO TRANSFER, ENCUMBER OR
     7  OTHERWISE ALIENATE THE REAL PROPERTY, SUBJECT TO APPLICABLE
     8  LIMITATIONS, INCLUDING ANY PROVISION REQUIRING NOTICE TO THE
     9  HOLDER, CONTAINED IN THE CONSERVATION OR PRESERVATION EASEMENT.
    10  Section 9.  Coal interests not affected and notice of mineral
    11                 interests required.
    12     (a)  Coal rights preserved.--Nothing in this act limits,
    13  expands, modifies or preempts the rights, powers, duties and
    14  liabilities of operators or other persons under the act of May
    15  31, 1945 (P.L.1198, No.418), known as the Surface Mining
    16  Conservation and Reclamation Act, or the act of April 27, 1966
    17  (1st Sp.Sess., P.L.31, No.1), known as The Bituminous Mine
    18  Subsidence and Land Conservation Act. This act does not limit or
    19  restrict any coal mining activity which was permitted or for
    20  which an application for permit was filed prior to the recording
    21  of a conservation easement under this act.
    22     (b)  Prohibited action.--The existence of a conservation
    23  easement on contiguous property may not serve as the sole
    24  grounds for designation of areas unsuitable for mining pursuant
    25  to section 4.5 of the Surface Mining Conservation and
    26  Reclamation Act.
    27     (c)  Easements of necessity.--Nothing in this act shall be
    28  construed to limit the exercise of rights created by easements
    29  of necessity or inherent in the ownership of property contiguous
    30  to the property burdened by the easement or of coal interests
    20010H0975B1868                  - 9 -

     1  which have been severed from the ownership of the property
     2  burdened by the easement.
     3     (d)  Notice of coal interests.--A conservation easement
     4  affecting real property containing workable coal seams or from
     5  which an interest in coal has been severed may not be recorded
     6  or effective unless the grantor or donor of the easement signs a
     7  statement printed on the instrument creating the conservation
     8  easement stating that the easement may impair the development of
     9  such coal interest. This statement must be printed in no less
    10  than 12-point type and must be preceded by the word "Notice"
    11  printed in no less than 24-point type.
    12  Section 10.  Effective date.
    13     This act shall take effect immediately.












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