NY Env Conserv L § 49-0305 (2021)
2021 New York Laws ENV - Environmental Conservation Article 49 - Protection of Natural and Man-Made Beauty Title 3 - Conservation Easements 49-0305 - Conservation Easements; Certain Common Law Rules Not Applicable.

§ 49-0305. Conservation   easements;   certain   common  law  rules  not              applicable.   1. A conservation easement may be  created  or  conveyed  only  by  an instrument  which complies with the requirements of section 5-703 of the general obligations law and which is subscribed by the grantee. It shall be of perpetual duration unless otherwise provided in such instrument.   2. A conservation easement shall  be  modified  or  extinguished  only pursuant  to  the  provisions of section 49-0307 of this title. Any such modification or extinguishment shall be set forth in an instrument which complies  with  the  requirements  of  section  5-703  of  the   general obligations  law  or  in  an instrument filed in a manner prescribed for recording a conveyance of real property pursuant to section two  hundred ninety-one of the real property law.   3.  (a) A conservation easement shall be held only by a public body or not-for-profit conservation organization, except that  the  state  shall not  be  authorized  or  empowered  to  acquire or hold any conservation easement which is subject to the provisions of article fourteen  of  the constitution.  (b) Any conservation easement created pursuant to this title shall not limit,  restrict  or  modify the right to construct, operate or continue the use of any facility, or impede any activity, duly  authorized  under the  applicable  provisions of the federal natural gas act (15 U.S.C. §§ 717-717 w).   4. A conservation easement shall be duly recorded and indexed as  such in  the office of the recording officer for the county or counties where the land is situate in the manner prescribed by article nine of the real property law. The easement shall describe the property encumbered by the easement by adequate legal description or by reference to a recorded map showing its boundaries and bearing the seal and signature of a  licensed land  surveyor,  or  if  the  easement  encumbers  the  entire  property described in a deed of record, the easement may incorporate by reference the description in such deed, otherwise it shall refer to the liber  and page  of  the  deed  or  deeds of the record owner or owners of the real property burdened by the conservation easement. An  instrument  for  the purpose  of creating, conveying, modifying or terminating a conservation easement shall not be effective unless recorded. A  person  causing  any such  document  to be so recorded shall forthwith forward a copy thereof to  the  department,  which  shall  maintain  a  file  of   conservation easements.   5.  A  conservation  easement  may be enforced in law or equity by its grantor,  its  holder  or  by  a  public  body  or  any   not-for-profit conservation  organization  designated in the easement as having a third party enforcement right, and is enforceable against  the  owner  of  the burdened  property.  Enforcement  shall  not  be defeated because of any subsequent adverse possession, laches, estoppel or  waiver.  No  general law  of  the  state  which  operates  to  defeat  the enforcement of any interest in real property shall operate to defeat the enforcement of any conservation easement unless  such  general  law  expressly  states  the intent  to  defeat  the enforcement of such easement or provides for the exercise of the power of eminent domain. It is  not  a  defense  in  any action to enforce a conservation easement that:  (a) It is not appurtenant to an interest in real property;  (b) It can be or has been assigned to another holder;  (c) It is not of a character that has been recognized traditionally at common law;  (d) It imposes a negative burden;  (e)  It imposes affirmative obligations upon the owner of any interest in the burdened property, or upon the holder;  (f) The benefit does not touch or concern real property; or  (g) There is no privity of estate or of contract.   6.  The  holder  of a conservation easement, its agents, employees, or other representatives may enter and inspect the property burdened  by  a conservation  easement in a reasonable manner and at reasonable times to assure compliance with the restriction.   7. The department shall promulgate regulations establishing  standards for conservation easements which shall specify but not be limited to:  (a)  the  minimum term for a conservation easement as is necessary and appropriate to achieve the policy and purpose of this title, except that such  standards  shall  not  preclude  taxpayers  who  own   or   convey conservation  easements  from  qualifying  for benefits under federal or state tax laws when such benefits would otherwise be available by virtue of such ownership or conveyance; and  (b) standards and procedures which require each conservation  easement held by a public body to include terms under which the easement shall be modified  where  the  commissioner  has  found  after a non-adjudicatory public hearing at which the public shall  be  given  opportunity  to  be heard,  that  such  easement  is inconsistent with any other interest in land required for the local gathering, transmission or  distribution  of gas, electricity, water, telephone or cable television services and that no  reasonable  alternative exists for the local gathering, transmission or distribution of such service. Notice of any  such  hearing  shall  be given  to  the  public  pursuant  to thirty days published notice in the state register, the environmental notice bulletin  and  in  a  newspaper having  general  circulation  in  the  county  where  the  real property burdened by the easement is situated  and  individual  notice  shall  be given  in  writing  to  any  person  who may be entitled to enforce such easement pursuant to the provisions of subdivision five of this  section at such address as such person shall file with the commissioner.   8.  Where  a conservation easement is modified pursuant to subdivision seven of this  section,  or  pursuant  to  any  regulations  promulgated thereunder,  such  easement shall be modified only to the minimum extent necessary  to  accommodate  the   local   gathering,   transmission   or distribution  of  gas, electricity, water, telephone or cable television service.   9. Written notice shall be provided to the director of the budget  and notice  published  in  the  state  register and the environmental notice bulletin at least thirty days prior to the acquisition, or entry into  a contract for the acquisition, on behalf of the state of any conservation easement.