68-212-225 - Notice of land use restrictions. - Tennessee Statutes

68-212-225. Notice of land use restrictions.

(a)  Upon a determination by the commissioner that land use restrictions are the appropriate remedial action at any remediation, contamination, cleanup, closure or Brownfield project, the commissioner shall either:

     (1)  Order the owner or owners of the site to file or permit the filing of, or

     (2)  With the consent of the owner or owners of the site, or upon an order issued pursuant to (a)(1) becoming final, file or cause to be filed,

a notice of land use restrictions in the register of deeds office in the appropriate county. A copy of this notice shall be mailed to all local governments having jurisdiction over any part of the subject property.

(b)  Such notice shall be entitled “Notice of Land Use Restrictions,” and shall:

     (1)  Include a legal description of the site that would be sufficient as a description of the property in an instrument of conveyance;

     (2)  Identify the location and dimensions of the areas of potential environmental concern with respect to surveyed, permanent benchmarks. Where a site encompasses more than one (1) parcel or tract of land, a composite map or plat showing all parcels or tracts may be recorded;

     (3)  Identify generally the type, location, and quantity of regulated hazardous substances and regulated substances known to exist on the site; and

     (4)  Identify specific restrictions on the current or future use of the site.

(c)  Land use restrictions may apply to activities on, over, or under the land, including, but not limited to, use of property, use of groundwater, building, filling, grading, excavating, and mining.

(d)  The register of deeds shall record the notice and index it in the grantor index under the names of the owners of the land.

(e)  After public notice and an opportunity for public input, a notice of land use restrictions filed pursuant to this section may be made less stringent or canceled by the commissioner if the risk has been eliminated or reduced so that less restrictive land use controls are protective of human health and the environment. The department shall notify all owners of adjoining properties of any proposed changes to present land use restrictions. Such notice shall be sent by certified mail, return receipt requested. Notice of such changes shall be mailed to all local governments having jurisdiction over any part of the subject property. If the commissioner determines that the restrictive land use controls can be made less stringent or cancelled, then the commissioner shall send to the register of deeds of each county where the notice is recorded a statement that the hazards have changed or been eliminated. The commissioner's statement shall contain the names of the owners of the land as shown in the notice and reference the plat book and page where the notice is recorded. The register of deeds shall record the commissioner's statement in the deed books and index it on the grantor index in the names of the owners of the land as shown in the notice of land use restrictions and on the grantee index in the name “Commissioner of the Department of Environment and Conservation.”

(f)  Any land use restriction filed pursuant to this section may be enforced by any owner of the land. The commissioner, through issuance of an order or by means of a civil action, including one to obtain an injunction against present or threatened violations of the restriction, may also enforce any such land use restriction. A land use restriction may also be enforced by any unit of local government having jurisdiction over any part of the subject property, by means of a civil action without the unit of local government having first exhausted any available administrative remedy. Any person eligible for liability protection under an agreement entered into pursuant to this part may also enforce a land use restriction. A land use restriction shall not be declared unenforceable due to lack of privity of estate or contract, due to lack of benefit to particular land, or due to lack of any property interest in particular land. Any person who owns or leases a property subject to a land use restriction under this section shall abide by the land use restriction.

(g)  In addition to any other law concerning the establishment of conservation easements, upon approval by the commissioner, a property owner may voluntarily establish land use restrictions for the protection of streams and wetlands, or for other environmental conservation purposes by filing a notice of land use restriction pursuant to this section. The notice shall include the applicable portions of subsection (b), shall be filed as provided in subsection (d) and shall be enforceable as provided in subsection (f).

[Acts 2001, ch. 449, § 8; 2007, ch. 362, § 28.]