PA 10-85—sHB 5117
Planning and Development Committee
AN ACT CONCERNING CONSERVATION AND PRESERVATION RESTRICTIONS HELD BY THE STATE
SUMMARY: By law, anyone seeking a permit from state or local land use agencies, local building officials, or health directors generally must notify holders of conservation or preservation restrictions on the affected property before filing an application, other than for permits for interior or exterior work not expanding or altering the building's footprint. This act specifies that it does not prohibit filing a permit application or requiring written notice when the activity that is the subject of the application will take place on a portion of property not restricted under the terms of the conservation or preservation restriction.
Where a state agency holds the restriction, the act increases, from 15 to 30 days, the amount of time the state agency has to appeal the granted permit.
By law, the permitting authority must reverse its permit approval if it finds that the requested land use violates the restriction. The act additionally requires the permitting authority to immediately reverse its approval if the state agency commissioner holding a restriction certifies that the land use activity authorized by the permit violates the restriction.
The act creates a civil penalty of up to $5,000 for anyone who files a permit application without proof of having provided written notice to the state agency holding the restriction, as well as a fine of $1,000 per day for violations continuing beyond the initial penalty. The act specifies that it applies only to property subject to a restriction.
The act requires a municipality to record certain information in the land records whenever it (1) acquires real property with the intent to place a conservation, preservation, or other restriction on its use or (2) intends to permanently protect municipal property by dedicating it as a park or open space land. It authorizes the attorney general to bring an action in Superior Court to enforce these provisions
EFFECTIVE DATE: October 1, 2010, except that the municipal land records provisions take effect upon passage.
MUNICIPALITIES, CONSERVATION AND PRESERVATION RESTRICTIONS, AND OPEN SPACE DEDICATION
The act requires a municipality to record in the land records a description of a restriction and its source whenever it acquires any real property and intends to place a conservation, preservation, or other restriction on the property's use. This includes property acquired with funds specifically allocated for a conservation or preservation purpose. The municipality must also include in its recording the (1) date of the referendum or local legislative body action that authorized the acquisition contingent on certain land use restrictions and (2) funding source for acquiring the property if the funding restricted its use.
Under the act, whenever a municipality intends to permanently protect any municipal property by dedicating it as a park or open space land, it must record in the land records a property description, the date of dedication, and the local legislative action authorizing the dedication.
The act specifies that a municipality's failure to comply with the above provisions is not evidence of the lack of a conservation or preservation restriction, or open space land dedication. It also specifies that it should not be construed as amending or altering any other municipal legal right or obligation concerning open space or park land.
The act authorizes the attorney general to bring an action in Superior Court to enforce the public interest if a municipality fails to comply with a dedication of open space land or a conservation or preservation restriction.
State and Local Land Use Agency
Under the law, “state or local land use agency” includes a (1) municipal (a) planning commission, (b) zoning commission, (c) combined planning and zoning commission, (d) zoning board of appeals, (e) inland wetlands agency, (f) historic district commission, or (2) any state agency that issues permits for the construction or improvement of real property.
Conservation and Preservation Restrictions
The law prohibits people from filing permit applications relating to property subject to a conservation or preservation restriction unless they show that they provided written notice of the application to the restriction holder at least 60 days before applying. Notice must be sent by certified mail, return receipt requested. In place of the notice, an applicant may submit a letter from the restriction holder, or the holder's authorized agent, verifying that the application complies with the restriction terms. The filing requirements do not apply to permits for (1) interior work in an existing building or (2) exterior work that does not expand or alter the footprint of an existing building.
If the applicant has provided written notice, the restriction holder may provide proof to the state, local land use agency, local building official, or health director that granting the permit will violate the restriction's terms. The agency, official, or director cannot grant the permit when the restriction holder provides such proof.
Under farm and open space preservation programs, a restriction or an easement is placed in the town land record where the property is located and serves to notify any potential buyer that the land can be developed only for agricultural purposes or permanently held in its natural condition.
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