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ACT NO. 46

(S.144)

Municipal Land Use Permits; Bianchi Decision; 15-Year Statute of Limitations on Enforcement; State Subdivision Regulation Amnesty

This act expands on efforts of the previous legislative session to remove real estate title encumbrances created, according to the majority decision in Bianchi v. Lorenz (1997), by the failure to obtain or comply with certain local land use permits. In this regard, it expands from 10 to 15 years the statute of limitations for enforcement of a municipal land use violation, as defined in the act, but it repeals provisions that allowed enforcement at any time in the future against a person who first created the violation, or in order to abate or remove "an undue environmental impact." It also terminates the ability to enforce at any time in the future, in situations where a notice of violation was properly recorded and indexed in land records, prior to the owner acquiring title. It provides that regardless of when land development commences, no encumbrance on record title shall be created by the failure to obtain or comply with the terms or conditions of any required municipal land use permit.

In its other major component, the act provides that certain subdivided lots shall not require a permit under the state subdivision regulations, and that in those instances, the failure to obtain a permit, record a permit, or comply with the requirements of the permit shall not constitute a violation that adversely affects the marketability of title. Exempt lots are of two types. First, a subdivided lot which required a subdivision permit on which a structure and its associated potable water supply and wastewater disposal system was substantially constructed as of January 1, 1999 is exempt, provided that: (1) the wastewater disposal system has not failed, as "failed" is defined in the act; (2) the lot is not subsequently subdivided; (3) there is no significant modification of the structure after January 1, 1999 that would increase design flows; (4) there is no significant modification of the potable water supply or wastewater disposal system after January 1, 1999; and (5) if a permit had been issued for the lot prior to January 1, 1999, permit conditions concerning actions to be taken after January 1, 1999 shall remain in effect.

Second, a lot subdivided before January 2, 1999 which required a subdivision permit and which has not been developed through the construction of a structure is exempt, provided that (1) the lot is not subsequently subdivided, and prior to construction of a structure a subdivision permit is obtained, and (2) prior to transfer of ownership a specified notice of permit requirements is inserted into the deed.

If a wastewater disposal system benefiting from the limited amnesty under the act fails, the owner shall apply for and obtain a permit and shall correct the failure in accordance with the permit. These permits may include variances, granted where modifications cannot result in full compliance. Variances shall be based upon a consideration of the cost of modification in addition to the potential impacts on human health and the environment.

The act repeals a section, narrower in scope, that established a process for the remediation of certain subdivision violations, to the benefit only of innocent purchasers of the property in question.

The act requires that town clerks record in the land records: municipal land use permits or notices of those permits, denials of municipal land use permits, notices of violation of those permits, and notices of violation of ordinances or bylaws relating to municipal land use. It requires the appropriate municipal official to file a copy of a municipal land use permit in the offices of the municipality in a location where all municipal land use permits shall be kept. It increases from $50 to $100 the fine for violating a bylaw adopted under Chapter 117 of Title 24, the planning and zoning chapter. It provides that enforcement of municipal land use permits that received final approval after July 1, 1998 may take place only if the permit or a notice of the permit, generally in the form required in the act, was recorded as required in the act.

The act allows a purchaser to terminate a binding contract for the sale of real estate if, prior to closing, the purchaser determines and gives written notice that land development has occurred on the real estate without a required municipal land use permit, or in violation of an existing municipal land use permit, and if the permit is not then obtained or complied with within 30 days or a shorter period agreed upon between the parties.

The act creates a study committee on a simplified process for the recording of, maintenance of, and access to municipal land use permits, provides that the committee shall be staffed by the office of the Secretary of State, and requires it to report to specified legislative committees by January 15, 2000. It also creates a committee to study the environmental and land use impacts associated with allowing the use of alternative technologies for the on-site disposal of wastewater, and requires that committee to report to the General Assembly by January 15, 2000. The act requires that by January 1, 2000, the Secretary of Natural Resources and the Secretary of Commerce and Community Development shall develop and recommend to the General Assembly a pilot funding program to assist in remediating failed wastewater systems, particularly those located in mobile home parks. It requires the secretary of state to notify appropriate municipal officials of the requirements of the act.

Effective Date: Sections of the bill that relate to the keeping of records, legislative findings, and penalty amounts take effect on May 26, 1999, as does the part of Sec. 8 that allows a purchaser of real estate to terminate a contract. The section creating limited amnesty for state subdivision permit requirements, the related section on the marketability of such property, the septic technology impact study, and the repealer section take effect on July 1, 1999. The section that expands the statute of limitations for the enforcement of municipal land use permits, but narrows its scope, takes effect on May 26, 1999, but applies retroactively to July 1, 1998, subject to implementation language appearing in Sec. 15 of the act. The portion of Sec. 8 that addresses marketability and municipal land use permits takes effect on May 26, 1999, applies retroactively to April 27, 1998, and terminates encumbrances that might have existed at any time before or after that date.