AN ACT relating to environmental covenants and declaring an emergency.

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AN ACT relating to environmental covenants and declaring an emergency. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 224.80-190 is amended to read as follows: 3
(1) (a) Except as provided in paragraph (b) of this subsection, an environmental 4
covenant may be amended or terminated by consent only if the amendment or 5
termination is requested as a modification to the corrective action plan 6
approved by the cabinet, and only if the amendment or termination is signed 7
by: 8
1.[(a)] The cabinet; 9
2.[(b)] The current owner of the fee simple of the real property subject to 10
the covenant; 11
3.[(c)] Each person that originally signed the environmental covenant or 12
that person's heirs, assigns, or transferees unless: 13
a.[1.] The person or the person's heirs, assigns, or transferees waived in a 14
signed document the right to consent; or 15
b.[2.] A court finds that the person no longer exists or cannot be located 16
or identified with the exercise of reasonable diligence; and 17
4.[(d)] The holder, except as otherwise provided in subsection (4)(b) of 18
this section. 19
(b) The consent of a holder or of persons identified in paragraph (a)3. of this 20
subsection shall not be required for an amendment that has the sole effect 21
of removing or reducing a land use restriction in an environmental 22
covenant, if the cabinet determines that the restriction is no longer 23
necessary to prot ect human health or the environment as a result of 24
corrective action performed under a plan approved by the cabinet, and the 25
requirements of subsection (6) of this section have been satisfied. 26
(2) If an interest in real property is subject to an environme ntal covenant, the interest 27
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shall not be affected by an amendment of the environmental covenant unless: 1
(a) The current owner of the interest consents to the amendment; or 2
(b) The current owner of the interest has waived in a signed record the right to 3
consent to the amendments. 4
(3) Except for an assignment undertaken pursuant to a governmental reorganization, 5
assignment of an environmental covenant to a new holder shall be deemed an 6
amendment of the environmental covenant. 7
(4) Except as otherwise provided in an environmental covenant: 8
(a) A holder may not assign its interest without consent of the other parties to the 9
environmental covenant specified in subsection (1) of this section; and 10
(b) A holder may be removed and replaced by agreement of the other pa rties 11
specified in subsection (1) of this section. 12
(5) A court of competent jurisdiction may fill a vacancy in the position of the holder. 13
(6) (a) When the cabinet determines that corrective action performed under a 14
cabinet-approved plan has eliminated the environmental conditions 15
necessitating a land use restriction in an environmental covenant, the 16
cabinet shall issue a proposed determination authorizing the amendment of 17
the covenant to remove or reduce the restriction. 18
(b) The cabinet shall provide writt en notice of the proposed determination and 19
the proposed amended covenant to the holder and to all persons identified 20
in subsection (1)(a)2. and 3. of this section. The notice shall advise 21
recipients that any objection to the proposed amended covenant must be 22
filed with the cabinet within thirty (30) days of receipt and must state in 23
writing with reasonable specificity the legal or technical basis for 24
maintaining the restriction. 25
(c) If no objection is submitted within thirty (30) days, the cabinet shall is sue a 26
final determination approving the amendment, and the amendment shall be 27
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effective upon recordation. 1
(d) If a timely objection is submitted, the cabinet shall consider the objection 2
and issue a final written determination within forty -five (45) days o f the 3
receipt of the objection. The cabinet's final determination shall approve, 4
modify, or deny the proposed amendment. 5
(e) Once the cabinet's final determination has been made, the objector shall 6
have thirty (30) days to seek judicial review of the final determination by 7
filing an action in the Franklin Circuit Court. In the proceeding, the 8
burden shall be on the objector to demonstrate that the removal or 9
reduction of the restriction would adversely affect human health or the 10
environment. If the objector is unsuccessful in the proceeding, the proposed 11
amendment shall be effective upon recordation. 12
(f) If no action for judicial review is filed within thirty (30) days of the 13
cabinet's final determination, the right to challenge the proposed 14
amendment shall be waived and the proposed amendment shall be effective 15
upon recordation. 16
Section 2. KRS 224.80-180 is amended to read as follows: 17
(1) An environmental covenant shall be perpetual , except under the following 18
circumstances: 19
(a) By its terms, the environmental covenant is limited to a specific duration or is 20
terminated by the occurrence of a specific event; 21
(b) The environmental covenant is terminated pursuant to KRS 224.80-190; 22
(c) The environmental covenant is terminated by foreclosure of an interest that 23
has priority over the environmental covenant;[ or] 24
(d) The environmental covenant is terminated or modified in an eminent domain 25
proceeding and the following conditions exist: 26
1. The cabinet is a party to the eminent domain proceeding; 27
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2. All persons identified in KRS 224.80 -190(1) and (2) are given notice of 1
the pendency of the eminent domain proceeding; and 2
3. A court of competent jurisdiction determines, after hearing, that the 3
termination or modification of the environmental covenant will not 4
adversely affect human health or the environment; or 5
(e) The envi ronmental covenant is amended to remove or reduce a land use 6
restriction pursuant to Section 1 of this Act, and further court approval is 7
not required. 8
(2) If the cabinet or if any holder determines that the intended benefits of an 9
environmental covenant can no longer be realized, Franklin Circuit Court, under the 10
doctrine of changed circumstances, in an action in which all persons identified in 11
KRS 224.80 -190(1) and (2) have been given notice, may terminate the 12
environmental covenant or reduce its burden o n the real property subject to the 13
environmental covenant. 14
(3) Except as otherwise provided in subsections (1) and (2) of this section, an 15
environmental covenant may not be extinguished, limited, or impaired through the 16
issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of 17
adverse possession, prescription, abandonment, waiver, lack of enforcement, 18
acquiescence, or a similar doctrine. 19
Section 3. The provisions of Sections 1 and 2 of this Act shall apply to all 20
environmental covenants recorded pursuant to KRS 224.80 -100 to 224.80-210, including 21
those recorded prior to the effective date of this Act. 22
Section 4. Whereas it is critical that an efficient procedure be established for the 23
timely removal of land use restrictions in environmental covenants that have been 24
deemed no longer necessary so that the affected land can be put to its highest and best use 25
as soon as possible, an emergency is declared to exist, a nd this Act takes effect upon its 26
passage and approval by the Governor or upon its otherwise becoming a law. 27