CHAPTER 476

FORMERLY

HOUSE BILL NO 425

AS AMENDED BY

HOUSE AMENDMENT NOS. 1 AND 2

HOUSE AMENDMENT NO. 3 TO HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 68 OF TITLE 7, DELAWARE CODE RELATING TO CONSERVATION AND PRESERVATION EASEMENTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 68, Title 7, Delaware Code, by designating all of the existing Chapter as Subchapter I and adding thereto a new Subchapter to be designated as Subchapter II to read as follows:

"SUBCHAPTER II. CONSERVATION AND PRESERVATION EASEMENTS

§6811. Definitions

(a) 'Conservation easement' means a limitation stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land described therein, where the purpose is to retain land or water areas predominantly in their natural, scenic, recreational or open condition or in agricultural, farming, forest or open space use. Such easement may restrict, but not be limited to, the following:

1. Construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on, above or under the ground.

2. Dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste, or unsightly or offensive materials.

3. Removal or destruction of trees, shrubs, or other vegetation except as may be necessary for the control of disease, pest or insect infestation or the like.

4. Excavation, dredging or removal of loam, peat, gravel, soil, rock or other material substance in such manner as to substantially or adversely affect or alter the surface or topography of the area except for archeological digs on excavations authorized by the Division of Historical and Cultural Affairs.

5. Surface use except for agriculture, forestry, or outdoor recreational purposes or purposes permitting the land

or water area to remain predominantly in its natural condition.

6. Activities adversely affecting drainage, floor control, water conservation, erosion control or soil conservation.

7. Activities adversely affecting the fish and wildlife habitat.

8. Other acts or uses adversely affecting the preservation of water or land areas or the improvements of appurtenances thereto.

(b) 'Preservation easement' means a limitation stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of land where the purpose of the easement is to preserve a structure or site historically significant for its architecture, archeology or associations. Such easement may include, but not be limited to, the following restrictions:

1. Alteration in exterior or interior features of the structure.

2. Changes in appearance or condition of the site.

3. Uses not historically appropriate.

4. Other acts or uses detrimental to appropriate preservation of the structure or site.

(c) No easement shall restrict or abridge the activities of the State relating to mosquito control or similar activities, or the rights of any present or future fee simple owner from permitting or denying the use of the land for hunting, fishing or other recreational purposes.

§6812. Enforceability of easements

No conservation easement or preservation easement held by any governmental body or by a charitable corporation or trust whose purposes include conservation of land and no preservation easement held by any governmental body or by a charitable corporation or trust whose purposes include preservation of buildings or sites of historical significance shall be enforceable 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 charitable corporation or trust with like purposes. Where the easement is not granted for the benefit of any dominant tract of land, it shall be enforceable against the servient land, both at law and in equity as an easement in gross, and as such it shall be inheritable and assignable. Such easements may be enforced by injunction or proceeding in equity and shall entitle representatives of the holder of it to enter the real property in a reasonable manner and at reasonable

times to assure compliance.

§6813. Conveyance of easements

Such conservation and preservation easements are valuable interests in real property and may be acquired by any governmental body or any charitable corporation or trust which has the power to acquire interests in land in the same manner as it may acquire other interests in land. All such easements shall be duly recorded and indexed in the registry of deeds for the county where the real property lies so as to affect its title, in the manner of other conveyances of interests in real property, and shall describe the real property subject to said easement by adequate legal description or by reference to a recorded plan showing its boundaries. Such easements may be released, in whole or in part, by the holder for such consideration, if any, as the holder may determine, in the same manner as the holder may dispose of real property or other interests in real property, subject to such conditions as may have been imposed at the time of creation of the easement or consistent with the requirements of specific future public uses, including but not limited to, roads and utilities, unforeseen when the easement was created.

§6814. Effective date of conservation or preservation easements

No governmental body, charitable corporation or trust shall acquire or hold a conservation or preservation easement until the same shall have been accepted by the Secretary or Director or the agency or department receiving the easement or having jurisdiction over the subject matter of the easement who shall execute a written certificate of acceptance to be attached to the said easement and the said easement shall have been recorded in the county wherein the property is situate. In accepting a conservation or preservation easement, the Secretary or Director shall certify on the document to be recorded that the proposed easement is an appropriate use of the land subject to the proposed easement which will not conflict with surrounding land uses, and complies with state policies relating to conservation of state resources.

§6815. Eminent domain

Nothing contained in this Subchapter is intended to restrict, restrain or hold in abeyance any agency with powers of eminent domain in their exercising of that power."

Section 2. Severability. If any clause, sentence, section, provision or part of this Act shall be adjudged to be unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not impair, invalidate or affect the remainder of this Act which shall remain in full force and effect.

Approved July 11, 1978.