§ 130A-310.35. Notice of Brownfields Property; land-use restrictions in deed. - North Carolina Statutes

§130A‑310.35.  Notice of Brownfields Property; land‑use restrictionsin deed.

(a)        In order to reduceor eliminate the danger to public health or the environment posed by abrownfields property being addressed under this Part, a prospective developerwho desires to enter into a brownfields agreement with the Department shallsubmit to the Department a proposed Notice of Brownfields Property. A Notice ofBrownfields Property shall be entitled "Notice of BrownfieldsProperty", shall include a survey plat of areas designated by theDepartment that has been prepared and certified by a professional land surveyorand that meets the requirements of G.S. 47‑30, shall include a legaldescription of the brownfields property that would be sufficient as adescription of the property in an instrument of conveyance, and shall identifyall of the following:

(1)        The location anddimensions of the areas of potential environmental concern with respect topermanently surveyed benchmarks.

(2)        The type, location,and quantity of regulated substances and contaminants known to exist on thebrownfields property.

(3)        Any restrictions onthe current or future use of the brownfields property or, with the owner'spermission, other property that are necessary or useful to maintain the levelof protection appropriate for the designated current or future use of thebrownfields property and that are designated in the brownfields agreement.These land‑use restrictions may apply to activities on, over, or underthe land, including, but not limited to, use of groundwater, building, filling,grading, excavating, and mining. Where a brownfields property encompasses morethan one parcel or tract of land, a composite map or plat showing all parcelsor tracts may be recorded.

(b)        After theDepartment approves and certifies the Notice of Brownfields Property undersubsection (a) of this section, a prospective developer who enters into abrownfields agreement with the Department shall file a certified copy of theNotice of Brownfields Property in the register of deeds' office in the countyor counties in which the land is located. The prospective developer shall filethe Notice of Brownfields Property within 15 days of the prospectivedeveloper's receipt of the Department's approval of the notice or the prospectivedeveloper's entry into the brownfields agreement, whichever is later.

(c)        The register ofdeeds shall record the certified copy of the notice and index it in the grantorindex under the names of the owners of the land, and, if different, also underthe name of the prospective developer conducting the redevelopment of thebrownfields property.

(d)        When a brownfieldsproperty is sold, leased, conveyed, or transferred, the deed or otherinstrument of transfer shall contain in the description section, in no smallertype than that used in the body of the deed or instrument, a statement that thebrownfields property has been classified and, if appropriate, cleaned up as abrownfields property under this Part.

(e)        A Notice ofBrownfields Property filed pursuant to this section may, at the request of theowner of the land, be cancelled by the Secretary after the hazards have beeneliminated. If requested in writing by the owner of the land and if theSecretary concurs with the request, the Secretary shall send to the register ofdeeds of each county where the notice is recorded a statement that the hazardshave been eliminated and request that the notice be cancelled of record. TheSecretary's statement shall contain the names of the owners of the land as shownin the notice and reference the plat book and page where the notice isrecorded. The register of deeds shall record the Secretary's statement in thedeed books and index it on the grantor index in the names of the owners of theland as shown in the Notice of Brownfields Property and on the grantee index inthe name "Secretary of Environment and Natural Resources". Theregister of deeds shall make a marginal entry on the Notice of BrownfieldsProperty showing the date of cancellation and the book and page where theSecretary's statement is recorded, and the register of deeds shall sign theentry. If a marginal entry is impracticable because of the method used torecord maps and plats, the register of deeds shall not be required to make amarginal entry.

(f)         Any land‑userestriction filed pursuant to this section shall be enforced by any owner ofthe land. Any land‑use restriction may also be enforced by the Departmentthrough the remedies provided in Part 2 of Article 1 of this Chapter or bymeans of a civil action. The Department may enforce any land‑userestriction without first having exhausted any available administrativeremedies. A land‑use restriction may also be enforced by any unit oflocal government having jurisdiction over any part of the brownfields propertyby means of a civil action without the unit of local government having firstexhausted any available administrative remedy. A land‑use restriction mayalso be enforced by any person eligible for liability protection under thisPart who will lose liability protection if the land‑use restriction isviolated. A land‑use restriction shall not be declared unenforceable dueto lack of privity of estate or contract, due to lack of benefit to particularland, or due to lack of any property interest in particular land. Any personwho owns or leases a property subject to a land‑use restriction underthis section shall abide by the land‑use restriction.

(g)        This section shallapply in lieu of the provisions of G.S. 130A‑310.8 for brownfieldsproperties remediated under this Part. (1997‑357, s. 2; 1997‑443,s. 11A.119(b).)