This bill amends the Conservation Restriction Statute (Chapter 132, Section 31 & 32) and the Agricultural Preservation Restriction Act (Chapter 132, Section 11A). Filed as H. 2727 in 1997, the bill was reported favorably out of the Natural Resources and Agriculture Committee in April 1997. For more information on this bill, you may contact Sarah Cole at 978-524-1869.

SECTION 1. The purpose of this revision to Chapter 132, Section 11A of the General Laws is to enable the agricultural preservation restriction program to hold APRs jointly with a non-profit conservation organization or a land bank which is contributing significantly to the project. Co-holding of such restrictions makes good sense for the APR program for two reasons: (1) it provides an incentive for the non-profit organization to raise private funds to share with the Commonwealth and the municipality in the purchase of an important restriction, and (2) it allows the APR program to bring a local private partner into the picture for assistance in monitoring and enforcement of the restriction. This can be especially important in smaller communities without strong conservation commissions. The Department of Food and Agriculture has proposed this statutory change for the past several years.

SECTION 2. Makes several clarifications to the definitions of Chapter 184 restrictions and ties the revised definitions to the proposed release provisions below. With regard to agricultural preservation restrictions, this section increases the flexibility available to the agricultural preservation restriction program in negotiating these agreements with landowners.

SECTION 3. This clarifies and strengthens the statute by specifically requiring a two-thirds vote of both branches of the Legislature for any release of conservation, preservation, agricultural preservation, and watershed preservation restrictions (but not affordable housing restrictions), including those held by the Commonwealth, by municipalities, and by conservation organizations, land trusts, and other non-profits.

For many years, the Division of Conservation Services and EOEA have imposed such a requirement, pursuant to an Opinion of the Attorney General. However, it has become apparent that the statutory grounds for this requirement are not strong, especially for restrictions held by nongovernmental organizations, such as the 100+ land trusts located throughout the Commonwealth.

SECTION 4. This section; proposed by EOEA as a revision to Chapter 184, Section 32, would modify existing criteria for the release of agricultural preservation restrictions. Current law provides that agricultural preservation restrictions shall be released by the holder only if the land is no longer deemed suitable for agricultural or horticultural purposes or unless two-thirds of both branches approve such a release. Section 4 would change the underlined phrase to "and unless". It also makes a similar change regarding the release of watershed preservation restrictions.

We believe this change makes good sense. The legislative vote should be a criterion for any release, and would be so imposed under Section 32 above. Including the first criterion is, we believe, sound public policy that will help to protect the state's investment in these restrictions.

SECTION 5. The purpose of this revision to Chapter 184, Section 32 is to clarify and improve the process by which public utilities are able to obtain statutory exemptions from the restrictions described in Chapter 184, Sections 31 and 32, with respect to utility easements. On the one hand, it is very important to public utilities that they have a clear and well-established mechanism for completing pipeline or transmission line corridors in the public interest without having to apply for a case-by-case release of restrictions that lie in the path of these corridors. On the other hand, it is equally important to the holders of these restrictions that construction of pipelines and transmission lines respect the broad conservation values of these restrictions.

This revision is the product of successful negotiations in 1993 between representatives of EOEA, The Trustees of Reservations, Tenneco, Inc., and the Algonquin Gas Transmission Company. These negotiations were in response to a request by Rep. Steven Angelo, then cochairman of the Committee on Natural Resources and Agriculture. As a result of these negotiations, the pipeline companies agreed in a letter dated September 8, 1993 that their concerns regarding changes to the release provisions in Chapter 184 had been adequately addressed.

SECTION 6. The purpose of this revision to Chapter 184, Section 32 is to strengthen the conservation restriction statute and to clear up lingering uncertainty regarding the perpetual enforceability of restrictions under certain rare circumstances.

This revision deals with certain problems presented by the common law doctrine of merger as applied to statutory restrictions under Chapter 184 Sections 31 and 32. Under this doctrine, it can be argued that a conservation restriction (for example) disappears and becomes unenforceable if the holder of that restriction becomes the eventual owner of the property governed by that restriction. We want to assure donors of restrictions that their charitable, conservation intent will not be frustrated over the long term because of the merger doctrine. We want the statutory provisions set forth in Chapter 184 Section 32 to be the only means for releasing these instruments.

Here are two hypothetical situations that could occur under the existing statute. In the first case, a municipality acquires by gift or bequest a parcel on which it holds a conservation restriction. That restriction prohibits all structures in order to preserve scenic views, productive agricultural land, and the integrity and usability of a public trail. Having acquired the fee interest in the parcel, the municipality eventually maintains that it need not follow the procedures for release of the restriction because, under the doctrine of merger, the acquisition has rendered the restriction null and void and unenforceable against the municipality. As a result, there may be no forum in which the public may effectively express concerns about protection of the conservation and natural resource values of the parcel and no review by the state agency which originally approved the restriction.

In the second case, a fledgling or struggling non-profit conservation organization acquires by gift, bequest, or purchase a parcel on which it holds a conservation restriction. If the restriction can be removed or weakened, the market value of that property will triple or quadruple. Hard-pressed by financial problems, the organization maintains that, under the doctrine of merger, it is no longer bound by the terms of the conservation restriction. It then removes or substantially weakens the restriction and puts the parcel on the market for full or partial development without an opportunity for the public, the municipality or the state agency to object.

Adoption of this section will enable the Commonwealth, municipalities, and land trusts to assure donors and bargain sellers of restrictions that such situations will never occur, and that proper procedures will be observed if it ever becomes necessary to revise or remove the restrictions.

SECTION 7. This section provides that the provisions of the previous sections would apply to all restrictions described in MGL Sections 31-32 of Chapter 184 that exist on the date these amendments become effective.