CHAPTER 20. NATURAL RESOURCES.
ARTICLE 12. CONSERVATION AND
PRESERVATION EASEMENTS.
§
This article shall be known and may be cited as the "Conservation and
Preservation Easements Act". §
The West Virginia Legislature recognizes the importance and significant public
benefit of conservation and preservation easements in its ongoing efforts to
protect the natural, historic, agricultural, open-space and scenic resources of
this state.
§
The following words and phrases when used in this article have the meanings
given to them in this section unless the context clearly indicates otherwise:
(a) "Conservation easement" means 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 benefit the
natural, scenic or open-space values of real property; assuring its availability
for agricultural, forest, recreational or open-space use; protecting natural
resources and wildlife; maintaining or enhancing land, air or water quality; or
preserving the historical, architectural, archaeological or cultural aspects of
real property.
(b) "Holder" means:
(1) A governmental body empowered to hold an interest in
real property under the laws of this state or the
(2) A charitable corporation, charitable association or
charitable trust registered with the secretary 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. Section 501(c)(3), or other federal or state
statutes or rules, 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 natural resources and wildlife;
maintaining or enhancing land, air or water quality; or preserving the
historical, architectural, archaeological or cultural aspects of real property.
(c) "Preservation easement" means a nonpossessory
interest in an historical building.
(d) "Third-party right of enforcement" means a
right provided in a conservation or preservation easement, in order 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.
§
(a) Except as otherwise provided in this article, a conservation or
preservation easement may be created, conveyed, recorded, assigned, released,
modified, terminated or otherwise altered or affected in the same manner as
other easements.
(b) No right or duty of a holder, successive holder named in
the easement deed or person having a third-party right of enforcement arises
under a conservation or preservation easement before the easement's acceptance
by the holder, successive holder or third party with right of enforcement and a
recordation of the acceptance.
(c) Except as provided in subsection (b), section five of
this article, a conservation or preservation easement created after the
effective date of this article may be perpetual in duration, but in no event
shall be for a duration of less than twenty-five
years.
(d) An interest in real property in existence at the time a
conservation or preservation easement is created, including an unrecorded lease
for the production of minerals or removal of timber, shall not be impaired
unless the owner of such interest is a party to the easement or expressly
consents to comply with the restriction of such easement.
§
(a) An action affecting a conservation or preservation easement may be brought
by any of the following:
(1) An owner of an interest in the real property burdened by
the easement;
(2) A holder of the easement;
(3) A person having a third-party right of enforcement; or
(4) A person, agency or entity otherwise authorized by state
or federal law.
(b) This article does not affect the power of a court to
modify or terminate a conservation or preservation
easement in accordance with the principles of law and equity consistent with
the public policy of this article as stated under section two of this article,
when the easement is broadly construed to effect that policy. Notwithstanding
provision of law to the contrary, conservation and 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 article.
(c) A holder, governmental entity or other person may not
exercise the right of eminent domain or the power of condemnation to acquire a
conservation easement without condemning or exercising the right of eminent
domain as to the entire fee interest of the property: Provided, That any
public utility regulated pursuant to the provisions of chapter twenty-four of
this code or any public service enterprise subject to the provisions of the
Natural Gas Act, title XV, United States Code, Section 717, et seq., or the
Federal Power Act, title XV, United States Code, Section 794a, et seq., or any
successor statute for the regulation of public utility or public service
business, may condemn land or an interest in land subject to a conservation or
preservation easement for any purpose authorized by the governing regulatory
statute or by the administrative agency established under the statute. Nothing
in this article may be construed to limit the lawful exercise of the right of
eminent domain or the power of condemnation by any person or entity having such
power, or the right of any real property owner to compensation by reason of the
lawful exercise of such right of eminent domain or power of condemnation for
any estate or interest in real property except a conservation or preservation
easement authorized by this article.
§
(a) A conservation or preservation easement is valid even though:
(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 as 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; or
(7) There is no privity of estate or of contract.
(b) To be enforceable under the provisions of this article,
a conservation or preservation easement shall be recorded within sixty days of
the effective date of the easement. Upon proper recording, the provisions of
this article apply retroactively to the effective date of the easement.
§
(a) This article applies to any interest created after the effective date of
this article, whether designated as a conservation or preservation easement or
as a covenant, equitable servitude, restriction, easement
or otherwise.
(b) This article applies to any interest created before the
effective date when the interest would have been enforceable had it been
created after its effective date, unless retroactive application contravenes
the constitution or laws of the United States or of this state. No conservation
easement or preservation easement created prior to the effective date of this
article may be invalidated by reason of the enactment of this article when the
conservation easement or preservation easement was valid under the law in
effect at the time of its creation.
(c) This article does not invalidate any interest, whether
designated as a conservation or preservation easement or as a covenant,
equitable servitude, restriction, easement or
otherwise, that is enforceable under another law of this state.
§
This article shall be applied and construed to effectuate its general purpose
to make uniform the laws with respect to the subject of this article among
states enacting similar laws. Except as expressly otherwise
provided, nothing contained in this article is intended to be construed to
alter applicable established common law. In a manner consistent with
common law, the granting of a conservation or preservation easement shall not
subsequently restrict the right of the fee owner to further grant any other
interest in real property to any person or entity when the grant does not
materially impair the prior conservation or preservation easement. When a fee
holder grants an interest beyond the conservation or preservation easement, he
shall notify the holder of any conservation or preservation easement at least
forty-five days prior to the execution of any subsequent easement or any other
conveyance of an interest in land encompassed by the conservation or
preservation easement.