Chapter 120
2011 -- S 0834
Enacted 06/28/11
A N A C T
RELATING TO
PROPERTY -- CONSERVATION AND PRESERVATION RESTRICTIONS ON REAL PROPERTY
Introduced By: Senator V. Susan Sosnowski
Date Introduced: April 12, 2011
It is enacted by the
General Assembly as follows:
SECTION 1. Sections 34-39-3 and 34-39-5 of the General Laws
in Chapter 34-39
entitled "Conservation and Preservation Restrictions on
Real Property" are hereby amended to
read as follows:
34-39-3.
Restrictions enforceable. -- (a) No conservation
restriction held by any
governmental body or by a charitable corporation, association,
trust, or other entity whose
purposes include conservation of land or water areas or of a
particular area, and no preservation
restriction held by any governmental body or by a charitable
corporation, association, trust, or
other entity whose purposes include preservation of
structures or sites of historical significance or
of a particular structure or site, shall be
unenforceable against any owner of the restricted land or
structure on account of lack of privity
of estate or contract, or lack of benefit to particular land, or
on account of the benefit being assignable or being
assigned to any other governmental body or to
any entity with like purposes, or on account of any other
doctrine of property law which might
cause the termination of the restriction such as, but
not limited to, the doctrine of merger and tax
delinquency.
(b) This section shall
not be construed to imply that any restriction easement, covenant,
or condition which is not covered hereunder shall, on
account of any provisions hereof, be
unenforceable.
(c) The restrictions
shall not be subject to the thirty year limitation on restrictive
covenants provided in section 34-4-21.
(d) The attorney
general, pursuant to his or her inherent authority, may bring an action in
the superior court to enforce the public interest in such
restrictions.
(e) The court in any
judicial proceeding, or the decision maker in any arbitration or other
alternative dispute resolution proceeding, in addition to any
other relief ordered, may award the
prevailing party, reasonable attorneys' fees and costs incurred
in the action or proceeding.
34-39-5.
Release of restriction. -- (a) Subject to the
express terms of a conservation or
preservation restriction, a restriction held by the state may be
released in the same manner as land
held by the state may be sold under chapter 7 of title 37,
a restriction held by cities and towns
may be released in the same manner as land held by cities
and towns may be sold under section
45-2-5, and a restriction held by any other
governmental body may be released in accordance
with applicable statutes, regulations, and procedures.
(b) A charitable
corporation, association, or other entity holding a restriction may release
that restriction in accordance with the express terms of a
restriction, applicable bylaws, or charter
provisions of the holding entity, and applicable statutes and
regulations.
(c) A conservation or
preservation restriction may not be terminated or amended in such a
manner as to materially detract from the conservation or
preservation values intended for
protection, without the prior approval of the court in an action
in which the attorney general has
been made a party. Termination or amendment that
materially detracts from the conservation or
preservation values intended for protection may be approved only
when it is found by the court
that the conservation or preservation restriction, or the
provision proposed to be amended, as the
case may be, does not serve the public interest or
publicly beneficial conservation or preservation
purpose, taking into account, among other things, the
purposes expressed by the parties in the
restriction. No such approval may be sought except with the
consent of the holder. If the value of
the landowner’s estate is increased by reason of the
amendment or termination of a conservation
or preservation restriction, that increase shall be paid
over to the holder, or to such non-profit or
governmental entity as the court may designate, to be used for the
protection of conservation
lands or historic resources consistent, as nearly possible,
with the stated publicly beneficial
conservation or preservation purposes of the restriction.
SECTION 2. This act shall take effect upon passage.
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LC01654
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