2011 -- H 5682
A N A C T
RELATING TO PROPERTY -- CONSERVATION AND PRESERVATION RESTRICTIONS ON REAL PROPERTY
Introduced By: Representatives Blazejewski, O`Grady, Marcello, Bennett, and
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
(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
(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.