Chapter 116

2011 -- H 5682

Enacted 06/28/11

A N A C T

RELATING TO PROPERTY -- CONSERVATION AND PRESERVATION RESTRICTIONS ON REAL PROPERTY

Introduced By: Representatives Blazejewski, O`Grady, Marcello, Bennett, and

Ehrhardt

Date Introduced: March 03, 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.

=======

LC01684

=======