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S1255................................................by JUDICIARY AND RULES UNIFORM ENVIRONMENTAL COVENANTS ACT - Adds to existing law to provide for the Uniform Environmental Covenants Act; to define terms; to set forth the nature of rights and subordination of interests; to set forth requirements for the contents of environmental covenants; to provide that qualifying environmental covenants run with the land; to provide for the validity and effect of environmental covenants; to provide for the relationship of environmental covenants to other land use laws; to require notice and recording; to set forth duration of covenants; to provide for amendment by court action; to provide for amendment or termination by consent; to provide for enforcement; to establish a registry; to require notice; to provide for uniformity of application and construction; to provide for relation to other acts; and to provide for severability. 01/16 Senate intro - 1st rdg - to printing 01/17 Rpt prt - to Jud 01/26 Rpt out - rec d/p - to 2nd rdg 01/27 2nd rdg - to 3rd rdg 01/31 3rd rdg - PASSED - 35-0-0 AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett, Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis, Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams NAYS -- None Absent and excused -- None Floor Sponsors - Davis & Kelly Title apvd - to House 01/31 House intro - 1st rdg - to Jud 02/03 Rpt out - Ref'd to Env 02/16 Rpt out - rec d/p - to 2nd rdg 02/17 2nd rdg - to 3rd rdg 02/22 3rd rdg - PASSED - 69-0-1 AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Brackett, Bradford, Cannon, Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest, Henderson, Jaquet, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sali(Sali), Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smylie(Luker), Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker NAYS -- None Absent and excused -- Smith(24) Floor Sponsor - Bastian Title apvd - to Senate 02/23 To enrol 02/24 Rpt enrol - Pres signed 02/27 Sp signed 02/28 To Governor 03/02 Governor signed Session Law Chapter 15 Effective: 07/01/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN THE SENATE SENATE BILL NO. 1255 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO THE UNIFORM ENVIRONMENTAL COVENANTS ACT; AMENDING TITLE 55, IDAHO 3 CODE, BY THE ADDITION OF A NEW CHAPTER 30, TITLE 55, IDAHO CODE, TO PRO- 4 VIDE A SHORT TITLE, TO DEFINE TERMS, TO SET FORTH THE NATURE OF RIGHTS AND 5 SUBORDINATION OF INTERESTS, TO SET FORTH REQUIREMENTS FOR THE CONTENTS OF 6 ENVIRONMENTAL COVENANTS, TO PROVIDE THAT QUALIFYING ENVIRONMENTAL COVE- 7 NANTS RUN WITH THE LAND, TO PROVIDE FOR VALIDITY AND EFFECT OF ENVIRONMEN- 8 TAL COVENANTS, TO PROVIDE FOR THE RELATIONSHIP OF ENVIRONMENTAL COVENANTS 9 TO OTHER LAND USE LAWS, TO REQUIRE NOTICE AND RECORDING, TO SET FORTH 10 DURATION OF COVENANTS, TO PROVIDE FOR AMENDMENT BY COURT ACTION, TO PRO- 11 VIDE FOR AMENDMENT OR TERMINATION BY CONSENT, TO PROVIDE FOR ENFORCEMENT, 12 TO ESTABLISH A REGISTRY AND TO REQUIRE NOTICE, TO PROVIDE FOR UNIFORMITY 13 OF APPLICATION AND CONSTRUCTION, TO PROVIDE FOR RELATION TO THE ELECTRONIC 14 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT AND TO PROVIDE FOR SEVER- 15 ABILITY. 16 Be It Enacted by the Legislature of the State of Idaho: 17 SECTION 1. That Title 55, Idaho Code, be, and the same is hereby amended 18 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 19 ter 30, Title 55, Idaho Code, and to read as follows: 20 CHAPTER 30 21 UNIFORM ENVIRONMENTAL COVENANTS ACT 22 55-3001. SHORT TITLE. This chapter shall be known and may be cited as the 23 "Uniform Environmental Covenants Act." 24 55-3002. DEFINITIONS. As used in this chapter: 25 (1) "Activity and use limitations" means restrictions or obligations cre- 26 ated under this chapter with respect to real property. 27 (2) "Agency" means the Idaho department of environmental quality or any 28 other state or federal agency that determines or approves the environmental 29 response project pursuant to which the environmental covenant is created. 30 (3) "Common interest community" means a condominium, cooperative, or 31 other real property with respect to which a person, by virtue of the person's 32 ownership of a parcel of real property, is obligated to pay property taxes or 33 insurance premiums, or for maintenance, or improvement of other real property 34 described in a recorded covenant that creates the common interest community. 35 (4) "Environmental covenant" means a servitude arising under an environ- 36 mental response project that imposes activity and use limitations. 37 (5) "Environmental response project" means a plan or work performed for 38 environmental remediation of real property and conducted: 39 (a) Under a federal or state program governing environmental remediation 40 of real property; 41 (b) Incident to closure of a solid or hazardous waste management unit, if 2 1 the closure is conducted with approval of an agency; or 2 (c) Under an authorized state voluntary cleanup program. 3 (6) "Holder" means the grantee of an environmental covenant as specified 4 in section 55-3003(1), Idaho Code. 5 (7) "Person" means an individual, corporation, business trust, estate, 6 trust, partnership, limited liability company, association, joint venture, 7 public corporation, government, governmental subdivision, agency, or instru- 8 mentality, or any other legal or commercial entity. 9 (8) "Record," used as a noun, means information that is inscribed on a 10 tangible medium or that is stored in an electronic or other medium and is 11 retrievable in perceivable form. 12 (9) "State" means a state of the United States, the District of Columbia, 13 Puerto Rico, the United States Virgin Islands, or any territory or insular 14 possession subject to the jurisdiction of the United States. 15 55-3003. NATURE OF RIGHTS -- SUBORDINATION OF INTERESTS. (1) Any person, 16 including a person that owns an interest in the real property, the agency, or 17 a municipality or other unit of local government, may be a holder. An environ- 18 mental covenant may identify more than one (1) holder. The interest of a 19 holder is an interest in real property. 20 (2) A right of an agency under this chapter or under an environmental 21 covenant, other than a right as a holder, is not an interest in real property. 22 (3) An agency is bound by any obligation it assumes in an environmental 23 covenant, but an agency does not assume obligations merely by signing an envi- 24 ronmental covenant. Any other person that signs an environmental covenant is 25 bound by the obligations the person assumes in the covenant, but signing the 26 covenant does not change obligations, rights, or protections granted or 27 imposed under law other than this chapter except as provided in the covenant. 28 (4) The following rules apply to interests in real property in existence 29 at the time an environmental covenant is created or amended: 30 (a) An interest that has priority under other law is not affected by an 31 environmental covenant unless the person that owns the interest subordi- 32 nates that interest to the covenant. 33 (b) This chapter does not require a person that owns a prior interest to 34 subordinate that interest to an environmental covenant or to agree to be 35 bound by the covenant. 36 (c) A subordination agreement may be contained in an environmental cove- 37 nant covering real property or in a separate record. If the environmental 38 covenant covers commonly owned property in a common interest community, 39 the record may be signed by any person authorized by the governing board 40 of the owners' association. 41 (d) An agreement by a person to subordinate a prior interest to an envi- 42 ronmental covenant affects the priority of that person's interest but does 43 not by itself impose any affirmative obligation on the person with respect 44 to the environmental covenant. 45 55-3004. CONTENTS OF ENVIRONMENTAL COVENANT. (1) An environmental cove- 46 nant must: 47 (a) State that the instrument is an environmental covenant executed pur- 48 suant to this chapter; 49 (b) Contain a legally sufficient description of the real property subject 50 to the covenant; 51 (c) Describe the activity and use limitations on the real property; 52 (d) Identify every holder; 53 (e) Be signed by the agency, every holder, and unless waived by the 3 1 agency every owner of the fee simple of the real property subject to the 2 covenant; and 3 (f) Identify the name and location of any administrative record for the 4 environmental response project reflected in the environmental covenant. 5 (2) In addition to the information required by subsection (1) of this 6 section, an environmental covenant may contain other information, restric- 7 tions, and requirements agreed to by the persons who signed it, including any: 8 (a) Requirements for notice following transfer of a specified interest 9 in, or concerning proposed changes in use of, applications for building 10 permits for, or proposals for any site work affecting the contamination 11 on, the property subject to the covenant; 12 (b) Requirements for periodic reporting describing compliance with the 13 covenant; 14 (c) Rights of access to the property granted in connection with implemen- 15 tation or enforcement of the covenant; 16 (d) A brief narrative description of the contamination and remedy, 17 including the contaminants of concern, the pathways of exposure, limits on 18 exposure, and the location and extent of the contamination; 19 (e) Limitation on amendment or termination of the covenant in addition to 20 those contained in sections 55-3009 and 55-3010, Idaho Code; and 21 (f) Rights of the holder in addition to its right to enforce the covenant 22 pursuant to section 55-3011, Idaho Code. 23 (3) In addition to other conditions for its approval of an environmental 24 covenant, the agency may require those persons specified by the agency who 25 have interests in the real property to sign the covenant. 26 55-3005. VALIDITY -- EFFECT ON OTHER INSTRUMENTS. (1) An environmental 27 covenant that complies with this chapter runs with the land. 28 (2) An environmental covenant that is otherwise effective is valid and 29 enforceable even if: 30 (a) It is not appurtenant to an interest in real property; 31 (b) It can be or has been assigned to a person other than the original 32 holder; 33 (c) It is not of a character that has been recognized traditionally at 34 common law; 35 (d) It imposes a negative burden; 36 (e) It imposes an affirmative obligation on a person having an interest 37 in the real property or on the holder; 38 (f) The benefit or burden does not touch or concern real property; 39 (g) There is no privity of estate or contract; 40 (h) The holder dies, ceases to exist, resigns, or is replaced; or 41 (i) The owner of an interest subject to the environmental covenant and 42 the holder are the same person. 43 (3) An instrument that creates restrictions or obligations with respect 44 to real property that would qualify as activity and use limitations except for 45 the fact that the instrument was recorded before July 1, 2006, is not invalid 46 or unenforceable because of any of the limitations on enforcement of interests 47 described in subsection (2) of this section or because it was identified as an 48 easement, servitude, deed restriction, or other interest. This chapter does 49 not apply in any other respect to such an instrument. 50 (4) This chapter does not invalidate or render unenforceable any inter- 51 est, whether designated as an environmental covenant or other interest, that 52 is otherwise enforceable under the law of this state. 53 55-3006. RELATIONSHIP TO OTHER LAND USE LAW. This chapter does not au- 4 1 thorize a use of real property that is otherwise prohibited by zoning, by law 2 other than this chapter regulating use of real property, or by a recorded 3 instrument that has priority over the environmental covenant. An environmental 4 covenant may prohibit or restrict uses of real property which are authorized 5 by zoning or by law other than this chapter. 6 55-3007. NOTICE. (1) A copy of an environmental covenant shall be pro- 7 vided by the persons and in the manner required by the agency to: 8 (a) Each person that signed the covenant; 9 (b) Each person holding a recorded interest in the real property subject 10 to the covenant; 11 (c) Each person in possession of the real property subject to the cove- 12 nant; 13 (d) Each municipality or other unit of local government in which real 14 property subject to the covenant is located; and 15 (e) Any other person the agency requires. 16 (2) The validity of a covenant is not affected by failure to provide a 17 copy of the covenant as required under this section. 18 55-3008. RECORDING. (1) An environmental covenant and any amendment or 19 termination of the covenant must be recorded in every county in which any por- 20 tion of the real property subject to the covenant is located. For purposes of 21 indexing, a holder shall be treated as a grantee. 22 (2) Except as otherwise provided in section 55-3009(3), Idaho Code, an 23 environmental covenant is subject to the laws of this state governing record- 24 ing and priority of interests in real property. 25 55-3009. DURATION -- AMENDMENT BY COURT ACTION. (1) An environmental cov- 26 enant is perpetual unless it is: 27 (a) By its terms limited to a specific duration or terminated by the 28 occurrence of a specific event; 29 (b) Terminated by consent pursuant to section 55-3010, Idaho Code; 30 (c) Terminated pursuant to subsection (2) of this section; 31 (d) Terminated by foreclosure of an interest that has priority over the 32 environmental covenant; or 33 (e) Terminated or modified in an eminent domain proceeding, but only if: 34 (i) The agency that signed the covenant is a party to the proceed- 35 ing; 36 (ii) All persons identified in section 55-3010(1) and (2), Idaho 37 Code, are given notice of the pendency of the proceeding; and 38 (iii) The court determines, after hearing, that the termination or 39 modification will not adversely affect human health or the environ- 40 ment. 41 (2) If the agency that signed an environmental covenant has determined 42 that the intended benefits of the covenant can no longer be realized, a court, 43 under the doctrine of changed circumstances, in an action in which all persons 44 identified in section 55-3010(1) and (2), Idaho Code, have been given notice, 45 may terminate the covenant or reduce its burden on the real property subject 46 to the covenant. The agency's determination or its failure to make a determi- 47 nation upon request is subject to review pursuant to the Idaho administrative 48 procedure act, chapter 52, title 67, Idaho Code. 49 (3) Except as otherwise provided in subsections (1) and (2) of this sec- 50 tion, an environmental covenant may not be extinguished, limited, or impaired 51 through issuance of a tax deed, foreclosure of a tax lien, or application of 52 the doctrine of adverse possession, prescription, abandonment, waiver, lack of 5 1 enforcement, or acquiescence, or a similar doctrine. 2 55-3010. AMENDMENT OR TERMINATION BY CONSENT. (1) An environmental cove- 3 nant may be amended or terminated by consent only if the amendment or termina- 4 tion is signed by: 5 (a) The agency; 6 (b) Unless waived by the agency, the current owner of the fee simple of 7 the real property subject to the covenant; 8 (c) Each person that originally signed the covenant, unless the person 9 waived in a signed record the right to consent or a court finds that the 10 person no longer exists or cannot be located or identified with the exer- 11 cise of reasonable diligence; and 12 (d) Except as otherwise provided in subsection (4)(b) of this section, 13 the holder. 14 (2) If an interest in real property is subject to an environmental cove- 15 nant, the interest is not affected by an amendment of the covenant unless the 16 current owner of the interest consents to the amendment or has waived in a 17 signed record the right to consent to amendments. 18 (3) Except for an assignment undertaken pursuant to a governmental reor- 19 ganization, assignment of an environmental covenant to a new holder is an 20 amendment. 21 (4) Except as otherwise provided in an environmental covenant: 22 (a) A holder may not assign its interest without consent of the other 23 parties; 24 (b) A holder may be removed and replaced by agreement of the other par- 25 ties specified in subsection (1) of this section; and 26 (c) A court of competent jurisdiction may fill a vacancy in the position 27 of holder. 28 55-3011. ENFORCEMENT OF ENVIRONMENTAL COVENANT. (1) A civil action for 29 injunctive or other equitable relief for violation of an environmental cove- 30 nant may be maintained by: 31 (a) A party to the covenant; 32 (b) The agency or, if it is not the agency, the Idaho department of envi- 33 ronmental quality; 34 (c) Any person to whom the covenant expressly grants power to enforce; 35 (d) A person whose interest in the real property or whose collateral or 36 liability may be affected by the alleged violation of the covenant; or 37 (e) A municipality or other unit of local government in which the real 38 property subject to the covenant is located. 39 (2) This chapter does not limit the regulatory authority of the agency or 40 the Idaho department of environmental quality under law other than this chap- 41 ter with respect to an environmental response project. 42 (3) A person is not responsible for or subject to liability for environ- 43 mental remediation solely because it has the right to enforce an environmental 44 covenant. 45 55-3012. REGISTRY -- SUBSTITUTE NOTICE. (1) The Idaho department of envi- 46 ronmental quality shall establish and maintain a registry that contains all 47 environmental covenants and any amendment or termination of those covenants. 48 The registry may also contain any other information concerning environmental 49 covenants and the real property subject to them which the department of envi- 50 ronmental quality considers appropriate. The registry is a public record. 51 (2) After an environmental covenant or an amendment or termination of a 52 covenant is filed in the registry established and maintained pursuant to sub- 6 1 section (1) of this section, a notice of the covenant, amendment, or termina- 2 tion that complies with this section may be recorded in the land records in 3 lieu of recording the entire covenant. Any such notice must contain: 4 (a) A legally sufficient description and any available street address of 5 the real property subject to the covenant; 6 (b) The name and address of the owner of the fee simple interest in the 7 real property, the agency, and the holder if other than the agency; 8 (c) A statement that the covenant, amendment, or termination is available 9 in a registry at the department of environmental quality, which discloses 10 the method of any electronic access; and 11 (d) A statement that the notice is notification of an environmental cove- 12 nant executed pursuant to this chapter. 13 (3) A statement in substantially the following form, executed with the 14 same formalities as a deed in this state, satisfies the requirements of sub- 15 section (2) of this section: 16 "1. This notice is filed in the land records of the (political subdivi- 17 sion) of (insert name of jurisdiction in which the real property is 18 located) pursuant to section 55-3012, Idaho Code. 19 2. This notice and the covenant, amendment or termination to which it 20 refers may impose significant obligations with respect to the property 21 described below. 22 3. A legal description of the property is attached as Exhibit A to this 23 notice. The address of the property that is subject to the environmental 24 covenant is (insert address of property) (not available). 25 4. The name and address of the owner of the fee simple interest in the 26 real property on the date of this notice is (insert name of current owner 27 of the property and the owner's current address as shown on the tax 28 records of the jurisdiction in which the property is located). 29 5. The environmental covenant, amendment or termination was signed by 30 (insert name and address of the agency). 31 6. The environmental covenant, amendment or termination was filed in the 32 registry on (insert date of filing). 33 7. The full text of the covenant, amendment or termination and any other 34 information required by the agency is on file and available for inspection 35 and copying in the registry maintained for that purpose by the Idaho 36 department of environmental quality.". 37 55-3013. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and con- 38 struing this uniform act, consideration must be given to the need to promote 39 uniformity of the law with respect to its subject matter among states that 40 enact it. 41 55-3014. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COM- 42 MERCE ACT. This chapter modifies, limits, or supersedes the federal electronic 43 signatures in global and national commerce act (15 U.S.C. section 7001 et 44 seq.) but does not modify, limit, or supersede section 101 of that act (15 45 U.S.C. section 7001(a)) or authorize electronic delivery of any of the notices 46 described in section 103 of that act (15 U.S.C. section 7003(b)). 47 55-3015. SEVERABILITY. The provisions of this chapter are hereby declared 48 to be severable and if any provision of this chapter or the application of 49 such provision to any person or circumstance is declared invalid for any rea- 50 son, such declaration shall not affect the validity of the remaining portions 51 of this chapter.
STATEMENT OF PURPOSE RS 15325C1 The Uniform Environmental Covenants Act deals with the future use of contaminated real estate or brownfields. The act provides clear rules for a perpetual real estate interest - an environmental covenant - to regulate the use of brownfields when real estate is transferred from one owner to another. FISCAL NOTE There will be no impact on the state's general fund. Contact Name: Senator Bart Davis Phone: 208-332-1305 Dale G. Higer Phone: 208-345-1432 STATEMENT OF PURPOSE/FISCAL NOTE S 1255