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PRINTER'S NO. 3066
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2148
Session of
2019
INTRODUCED BY CAUSER, DIAMOND, FEE, GABLER, HERSHEY, IRVIN,
JAMES, JOZWIAK, KLUNK, LAWRENCE, MILLARD, MOUL, OBERLANDER,
OWLETT, PICKETT, RAPP, SANKEY, SAYLOR, SCHMITT, WENTLING AND
ZIMMERMAN, DECEMBER 18, 2019
REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS,
DECEMBER 18, 2019
AN ACT
Amending the act of June 22, 2001 (P.L.390, No.29), entitled "An
act providing for the creation, conveyance, acceptance,
duration and validity of conservation and preservation
easements; and providing for judicial actions," further
providing for purpose of act, for definitions, for creation,
transfer and duration; providing for forest conservation
easements; and further providing for judicial and related
actions, for validity, for applicability, for uniformity of
application and construction and for coal interests not
affected and notice of mineral interests required.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 2, 3 and 4 of the act of June 22, 2001
(P.L.390, No.29), known as the Conservation and Preservation
Easements Act, are amended to read:
Section 2. Purpose of act.
The General Assembly recognizes the importance and
significant public and economic benefit of conservation
easements, forest conservation easements and preservation
easements in its ongoing efforts to protect, conserve or manage
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the use of the natural, historic, agricultural, forest, open
space and scenic resources of this Commonwealth.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Conservation easement." 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 and economic benefit the natural, scenic or open
space values of real property; assuring its availability for
agricultural, [forest,] recreational or open space use;
protecting, conserving or managing the use of natural resources;
protecting wildlife; maintaining or enhancing land, air or water
quality or preserving the historical, architectural,
archaeological or cultural aspects of real property.
"Forest conservation easement." A nonpossessory interest of
a holder in real property, appurtenant or in gross, imposing
limitations or affirmative obligations, the purposes of which
are to retain and protect the real property's availability for
sustainable forest and timbering use.
"Hardwoods Development Council." The council established
under the act of October 21, 1988 (P.L.1036, No.116), known as
the Hardwoods Development Council Act.
"Holder." The term means the following:
(1) A governmental body empowered to hold an interest in
real property under the laws of the United States or this
Commonwealth.
(2) A charitable corporation, charitable association or
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charitable trust registered with the Bureau of Charitable
Organizations of the Department 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. ยง 501(c)
(3)) or other Federal or Commonwealth statutes or
regulations, 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, conserving or managing the use of
natural resources; protecting wildlife; maintaining or
enhancing land, air or water quality or preserving the
historical, architectural, archaeological or cultural aspects
of real property.
"Preservation easement." A nonpossessory interest in a
historical building.
"Successive holder." A holder who is not the original holder
and who acquired its interest in a conservation easement, forest
conservation easement or preservation easement by assignment or
transfer.
"Third-party right of enforcement." A right provided in a
conservation easement or forest conservation easement 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.
Section 4. Creation, transfer and duration.
(a) Creating an easement.--Except as otherwise provided in
this act, a conservation easement, forest conservation easement
or preservation easement may be created, conveyed, recorded,
assigned, released, modified, terminated or otherwise altered or
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affected in the same manner as other easements.
(b) Scope.--A conservation easement or a forest conservation
easement may encompass an entire fee simple interest in a parcel
of real property as described in the deed to the property or any
portion thereof or estate therein. Except when referencing an
easement's boundary using setback descriptions from existing
deed boundaries or natural or artificial features such as
streams, rivers or railroad rights-of-way, a metes and bounds
description of the portion of property subject to the easement
shall be provided in the easement document.
(c) Acceptance.--No right or duty of a holder, successive
holder named in the conservation easement, forest conservation
easement or preservation easement or person having a third-party
right of enforcement may arise under a conservation easement,
forest conservation easement or preservation easement before the
acceptance of the easement by the holder, successive holder or
third party with right of enforcement and recordation of the
acceptance.
(d) Duration.--Except as provided in section 5(c), a
conservation easement, forest conservation easement or
preservation easement created after the effective date of this
act may be perpetual in duration but in no event shall be for a
duration of less than 25 years. To the extent the easement is in
gross, the easement shall be transferred to a willing successive
holder, should the original holder or successive holder be
dissolved or otherwise cease to exist, in order to accomplish
the goal of the easement. If a willing successive holder cannot
be identified, the municipality in which the easement is located
shall automatically become the successive holder for perpetuity
or the remaining term of the easement. Upon expiration of the
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easement, the holder shall terminate the easement by recording a
written document in the same office of recorder of deeds where
the easement was first recorded.
(e) Existing interests.--An interest in real property in
existence at the time a conservation easement, forest
conservation easement or preservation easement is created,
including easements intended to provide services of a public
utility nature and operating rights and easements appurtenant to
real property contiguous to real property burdened by the
easement which are of record or which arise by operation of law,
may not be impaired unless the owner of the interest is a party
to the easement or consents in writing to comply with the
restrictions of such easement.
Section 2. The act is amended by adding a section to read:
Section 4.1. Forest conservation easements.
(a) Creation.--A forest conservation easement that is
created using funding provided by Federal, State or local
government, even if that funding is transferred or made
available to a holder, shall be subject to the following terms,
conditions, restrictions and limitations:
(1) The term of a forest conservation easement shall be
perpetual.
(2) A forest conservation easement shall be available to
the public for outdoor recreational activities, such as
snowmobiling, ATV use, public hunting, hiking, camping,
picknicking, fishing, swimming and boating.
(3) Instruments and documents for the purchase, sale and
conveyance of a forest conservation easement shall be
approved by the Hardwoods Development Council prior to
execution and delivery. Proper releases from mortgage holders
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and lienholders must be obtained and executed to ensure that
forest conservation easements are purchased free and clear of
all encumbrances.
(4) The Hardwoods Development Council shall require the
following information when reviewing forest conservation
easements:
(i) A description of the scope of the forest
conservation easement under section 4(b).
(ii) The owner of real property burdened by the
forest conservation easement.
(iii) Persons who hold an estate or interest or
right in the real property burdened by the forest
conservation easement.
(iv) The holder of the forest conservation easement.
(v) A person having a third-party right of
enforcement in the forest conservation easement.
(vi) All sources of funding to purchase the forest
conservation easement.
(vii) The amount of funding used to purchase the
forest conservation easement.
(viii) The nature of compliance with paragraph (2).
(ix) Evidence of application of and compliance with
a sustainable forest management plan developed by a
consulting forester.
(x) Evidence of notification to officials in
counties and municipalities where the real property
subject to a forest conservation easement is situated
that a forest conservation easement is proposed.
(xi) Any other information the Hardwoods Development
Council deems necessary to review the forest conservation
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easement for approval.
(5) The Hardwoods Development Council shall transmit
notice to the Legislative Reference Bureau for publication in
the Pennsylvania Bulletin of the instruments and documents
for the purchase, sale and conveyance of a forest
conservation easement and provide for a minimum of a 30-day
public comment period prior to approving a forest
conservation easement.
(b) Limitation.--If the real property subject to a forest
conservation easement under this section is conveyed to the
Commonwealth or an instrumentality of the Commonwealth, the
conveyance shall be approved by the General Assembly.
Section 3. Sections 5, 6, 7, 8 and 9 of the act are amended
to read:
Section 5. Judicial and related actions.
(a) Persons who have standing.--A legal or equitable action
affecting a conservation easement, forest conservation easement
or preservation easement may only be brought by any of the
following:
(1) An owner of the real property burdened by the
easement.
(2) A person that holds an estate in the real property
burdened by the easement.
(3) A person that has any interest or right in the real
property burdened by the easement.
(4) A holder of the easement.
(5) A person having a third-party right of enforcement.
(6) A person otherwise authorized by Federal or State
law.
(7) The owner of a coal interest in property contiguous
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to the property burdened by the easement or of coal interests
which have been severed from the ownership of the property
burdened by the easement.
(b) Limitation on actions.--No action may be brought for
activities occurring outside the boundaries of a conservation
easement, forest conservation easement or preservation easement
except in circumstances where such activities have or pose a
substantial threat of direct, physically identifiable harm
within the boundaries of the easement.
(c) Authority of courts.--
(1) This act shall not affect the power of a court to
modify or terminate a conservation easement, forest
conservation easement or preservation easement in accordance
with the principles of law and equity consistent with the
public policy of this act as stated under section 2 when the
easement is broadly construed to effect that policy.
(2) Any general rule of construction to the contrary
notwithstanding, conservation easements, forest conservation
easements or 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 act.
(d) Eminent domain right preserved.--
(1) Nothing in this act shall be construed either:
(i) to limit the lawful exercise of the right of
eminent domain or the power of condemnation by any person
or entity having such power over real property subject to
a conservation easement, forest conservation easement or
preservation easement by any person or entity having
legal authority to do so or in lieu thereof; or
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(ii) to limit the right of such person or entity to
purchase rights for its public purposes over real
property subject to a conservation easement, forest
conservation easement or preservation easement without
resort to condemnation.
(2) In the event of exercise of eminent domain, nothing
in this act shall be construed so as to restrict any right to
compensation a holder of a conservation easement, forest
conservation easement or preservation easement may have under
applicable law.
(e) Just compensation.--A court order issued under
subsection (d) shall provide for the holder of the easement to
be compensated in accordance with the applicable provisions of
the conservation easement, forest conservation easement or
preservation easement which specify a particular allocation of
damages and, in the absence of such a provision, for the fair
market value of the easement. Nothing in this act shall be
construed to prevent a purchase agreement in lieu of
condemnation as a means of settling such claims by providing
either the specifically allocated damages or the fair market
value to the holder of the easement. The net proceeds of the
condemnation received by the holder shall be applied in
furtherance of the public benefit in accordance with its charter
or articles of incorporation. The court in adjudicating damages
to a conservation easement, forest conservation easement or
preservation easement shall be guided by principles generally
applicable to condemnation proceedings.
Section 6. Validity.
A conservation easement, forest conservation easement or
preservation easement is valid even though:
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(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 at 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;
(7) there is no privity of estate or of contract; or
(8) the holder is or becomes the owner in fee of the
subject property.
Section 7. Applicability.
(a) Interests created after effective date.--This act shall
apply to any interest created after the effective date of this
act which complies with this act, whether designated as a
conservation easement, forest conservation easement or
preservation easement or as a covenant, equitable servitude,
restriction, easement or otherwise.
(b) Interests created before effective date.--This act shall
apply to any interest created before the effective date of this
act when the interest would have been enforceable had it been
created after the effective date of this act and has been
recorded or, if not previously recorded, is recorded or
otherwise placed of record within 180 days of the effective date
of this act unless retroactive application contravenes the
Constitution of the United States or laws of the United States
or of this Commonwealth.
(c) Enforceable interests not invalidated.--This act does
not invalidate any interest, whether designated as a
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conservation easement, forest conservation easement or
preservation easement or as a covenant, equitable servitude,
restriction, easement or otherwise, enforceable under another
law of this Commonwealth or the common law.
(d) Agricultural Area Security Law.--Notwithstanding any
other provision of this act, nothing contained in this act shall
be construed as altering, modifying or superseding either the
method of creating agricultural conservation easements or the
rights, duties, powers and obligations appurtenant to these
easements under the act of June 30, 1981 (P.L.128, No.43), known
as the Agricultural Area Security Law.
Section 8. Uniformity of application and construction.
This act shall be applied and construed to effectuate its
general purpose to make uniform the laws with respect to the
subject of this act among states enacting similar laws. Except
as expressly otherwise provided in this act, nothing in this act
is intended to be construed to alter or supersede applicable law
pertaining to the creation, perfection, priority or
enforceability of instruments affecting real estate, including
conservation easements, forest conservation easements or
preservation easements. The owner of real property which is
subject to a conservation easement, forest conservation easement
or preservation easement retains the right to transfer, encumber
or otherwise alienate the real property, subject to applicable
limitations, including any provision requiring notice to the
holder, contained in the conservation easement, forest
conservation easement or preservation easement.
Section 9. Coal interests not affected and notice of mineral
interests required.
(a) Coal rights preserved.--Nothing in this act limits,
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expands, modifies or preempts the rights, powers, duties and
liabilities of operators or other persons under the act of May
31, 1945 (P.L.1198, No.418), known as the Surface Mining
Conservation and Reclamation Act, or the act of April 27, 1966
(1st Sp.Sess., P.L.31, No.1), known as The Bituminous Mine
Subsidence and Land Conservation Act. This act does not limit or
restrict any coal mining activity which was permitted or for
which an application for permit was filed prior to the recording
of a conservation easement or forest conservation easement under
this act.
(b) Prohibited action.--The existence of a conservation
easement or forest conservation easement on contiguous property
may not serve as the sole grounds for designation of areas
unsuitable for mining pursuant to section 4.5 of the Surface
Mining Conservation and Reclamation Act.
(c) Easements of necessity.--Nothing in this act shall be
construed to limit the exercise of rights created by easements
of necessity or inherent in the ownership of property contiguous
to the property burdened by the easement or of coal interests
which have been severed from the ownership of the property
burdened by the easement.
(d) Notice of coal interests.--A conservation easement or
forest conservation easement affecting real property containing
workable coal seams or from which an interest in coal has been
severed may not be recorded or effective unless the grantor or
donor of the easement signs a statement printed on the
instrument creating the conservation easement or forest
conservation easement stating that the easement may impair the
development of such coal interest. This statement must be
printed in no less than 12-point type and must be preceded by
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the word "Notice" printed in no less than 24-point type.
Section 4. This act shall take effect in 60 days.
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