Conn. Agencies Regs. § 22a-133q-2

Current through June 15, 2024

Section 22a-133q-2 - ELURs

(a)General

No person shall execute and record an ELUR, pursuant to the RSRs and sections 22a-133n to 22a-133s, inclusive, of the Connecticut General Statutes, that does not comply with the requirements of said sections and this section.

(b)Requesting an ELUR

The owner of a parcel seeking to execute and record an ELUR shall submit a request to the commissioner. Unless otherwise specified by this section, any such request, including the items identified in each subdivision of this subsection, shall be submitted on a form prescribed by the commissioner and shall include:

(1) A proposed declaration of ELUR as specified in section 22a-133q-app1 of the EUR regulations;

(2) A proposed EUR factsheet;

(3) A draft survey, with a revision date not more than 90 days prior to its submittal, that complies with section 22a-133q-4 of the EUR regulations;

(4) A title search for the parcel on which the proposed ELUR is located, performed no more than 90 days prior to its submittal to the commissioner. This title search shall include a listing and description of all recorded interests in the chain of title;

(5) A report by an attorney with a current and valid license to practice law in any state in the United States. The report shall:

(A) Be signed and certified to as accurate by the attorney undertaking it;

(B) Contain a description, review and evaluation of each recorded interest identified in the title search performed pursuant to subdivision (4) of this subsection and indicate whether each such interest will be:

(i) Subordinated to the ELUR; or

(ii) The subject of a waiver request, pursuant to section 22a-133o(b)(1) of the Connecticut General Statutes. For interests that will be the subject of such a waiver request, the report shall contain a detailed explanation of why the interest:

(I) Is so minor as to be unaffected by the ELUR; or

(II) When acted upon, is not capable of creating a condition contrary to the purpose of the ELUR.

(6) For each interest to be subordinated to the ELUR, a proposed, unexecuted, irrevocable subordination agreement, and a statement, signed by the holder of each interest to be subordinated, certifying that the holder of each interest agrees to execute the proposed subordination agreement so that it may be recorded at the same time as the ELUR. The proposed subordination agreements do not need to be prepared using a form prescribed by the commissioner;

(7) An affidavit executed by the owner of the parcel that:

(A) Identifies and describes:

(i) All residential activities on the parcel, and any other use of the parcel potentially in conflict with the restrictions proposed by the ELUR;

(ii) All unrecorded leases, licenses or other authorizations or rights regarding the parcel;

(iii) All unrecorded interests in the parcel;

(iv) All claims to the parcel, or to an interest in the parcel, by persons other than the owner; and

(v) Any condominium by-laws or regulations potentially in conflict with the restrictions of a proposed ELUR; and

(B) Attests, based on the owner's personal inquiry of the surveyor who prepared the survey required by subdivision (3) of this subsection, the attorney who prepared the title evaluation required by subdivision (5) of this subsection, and the LEP who prepared the EUR opinion required by subdivision (8) of this subsection, that the proposed ELUR does not conflict with items required to be specified in the affidavit by subparagraph (A) of this subdivision;

(8) A proposed EUR opinion that complies with section 22a-133q-5 of the EUR regulations;

(9) Documents demonstrating compliance with subsection 22a-133k-1(d) of the RSRs;

(10) A non-refundable fee of $5,000 dollars, payable in a manner prescribed by the commissioner; and

(11) Any other information specified by the commissioner on such form.

(c)Commissioner's Review

(1) The commissioner shall not accept an ELUR, unless and until the commissioner determines that:

(A) All of the information necessary to make a determination of whether or not to accept the ELUR, including, but not limited to, the information required to be prepared and submitted pursuant to subsection (b) of this section, has been submitted to the commissioner on forms prescribe commissioner;

(B) All holders of interests in the parcel have agreed to irrevocably subordinate such interest to the ELUR, and all proposed subordination agreements have been provided to the commissioner, pursuant to subsection (b)(6) of this section, except where, pursuant to section 22a-133o(b)(1) of the Connecticut General Statutes the commissioner has determined to waive this requirement;

(C) The ELUR complies with all applicable legal requirements, including, but not limited to, the EUR regulations and the RSRs; and

(D) The ELUR is protective of human health and the environment.

(2)

(A) The commissioner shall not review a request to approve an ELUR without the required fee and may, at any time, disapprove a request for an ELUR based on any determination made in accordance with subdivision (1) of this subsection. If the commissioner does not approve the request for an ELUR, the commissioner shall send written notice of such disapproval to the owner of the parcel on which the ELUR would have been placed and state the reasons for such disapproval. If the notice sent by the commissioner indicates that the request for an ELUR was not approved because:

(i) Information required by subsection (b) of this section was not provided, or that the commissioner needs additional information to review the proposed ELUR, the owner requesting the ELUR shall have 90 days from the date of the commissioner's notice to provide the commissioner with the information identified in the notice. The commissioner may grant a single 90 day extension of time to provide any such information; or

(ii) A request to waive the requirement to subordinate an interest in the parcel to the ELUR was rejected by the commissioner, pursuant to subdivision (1)(B) of this subsection, the owner requesting the ELUR shall have 180 days from the date of the commissioner's notice to obtain and submit to the commissioner a proposed subordination agreement and certification of the interest holder as required by subsection (b)(6) of this section.

(B) Any response to the notice sent by the commissioner, submitted pursuant to subparagraphs (A)(i) or (A)(ii) of this subdivision, shall along with the original request for an ELUR, be reviewed pursuant to subdivision (1) of this subsection. If the deadlines in subparagraphs (A)(i) or (A)(ii) of this subdivision are not met, the commissioner's disapproval of the request for an ELUR shall, without the need for any further action by the commissioner, be deemed final and the proposed ELUR shall not be executed or recorded.

(3) An owner whose request for an ELUR has been disapproved pursuant to this subsection may submit a new request for approval of such ELUR. Any such request shall be treated as a new request and shall be resubmitted in its entirety in compliance with the requirements of subsection (b) of this section.

(d)Changes or Omissions

If, at any time prior to acceptance of an ELUR by the commissioner, the information submitted pursuant to subsection (b) of this section has materially changed or if a material omission regarding the information submitted is discovered, the owner shall immediately notify the commissioner in writing and include any changed or omitted information.

(e)Recording an ELUR and Post-Recording Submittals

(1) If the commissioner determines to accept an ELUR, the commissioner shall send an unsigned copy of the accepted ELUR to the owner.

(2) Not more than 14 days after receiving the unsigned copy of the ELUR accepted by the commissioner, the owner shall submit to the commissioner:

(A) The accepted ELUR signed by the owner;

(B) A copy of the survey, accepted by the commissioner as it is to be recorded, revised to omit the term "proposed" where it appears, signed and sealed by the surveyor; and

(C) An affidavit, on a form prescribed by the commissioner, signed by the owner, in which the owner attests to the following:

(i) There has been no change to the information provided in the most recent owner's affidavit submitted pursuant to subsection (b)(7) of this section;

(ii) The ELUR signed by the owner is identical in all respects to the ELUR sent to the owner by the commissioner pursuant to subdivision (1) of this subsection; and

(iii) There has been no material change to and no omission in any other information provided to the commissioner pursuant to this section, and that if the commissioner signs the ELUR, within 7 days after receipt of the signed ELUR, the owner shall ensure that no alterations of any kind are made and shall record the ELUR, the survey accepted by the commissioner, and all fully executed subordination agreements, in the form provided to and accepted by the commissioner.

(3) Provided the commissioner finds that the information submitted pursuant to subdivision (2) of this subsection satisfactory, the commissioner shall sign the ELUR and return it to the owner for recording.

(4) Within 7 days after receipt of the ELUR signed by the commissioner the owner shall:

(A) Record the following on the municipal land records in the form provided to and accepted by the commissioner:

(i) The ELUR signed by the commissioner;

(ii) The survey of the parcel on which the ELUR is being placed;

(iii) All fully executed subordination agreements, and any approved waivers of the requirement to subordinate; and

(iv) Any other information sent to the owner by the commissioner for recording; and

(B) Submit to the commissioner, on a form prescribed by the commissioner, a certificate of title regarding the parcel on which the ELUR has been placed, prepared by an attorney with a current and valid license in the state of Connecticut.

(5)

(A) Except for the 7 day recording requirements in subparagraph (4)(A) of this subsection, if due to unforeseen circumstances an owner is not able to comply with one or more deadlines specified in this subsection, upon written request from the owner explaining such unforeseen circumstances, the commissioner may, in writing, extend the deadlines. The commissioner shall specify the length of any extension, which in no event shall exceed 30 days, unless the unforeseen circumstances require the attainment of a subordination agreement, in which case any extension shall not exceed 90 days. In connection with any request for such an extension, the commissioner may impose conditions, require that the ELUR be re-executed, or require the submission of additional information, including, but not limited to, information regarding subsections (b)(4), (b)(5), (b)(6) and (b)(7) of this section.

(B) If due to unforeseen circumstances, an ELUR signed by the commissioner is not recorded within 7 days after receipt by the owner, as required by subparagraph (4)(A) of this subsection, upon written request from the owner explaining such unforeseen circumstances, the commissioner may provide for the ELUR to be re-executed in accordance with subdivisions (3) and (4) of this subsection. In making such determination, the commissioner may impose conditions, or require the submission of additional information, including, but not limited to, information regarding subsections (b)(4), (b)(5), (b)(6) and (b)(7) of this section. If the commissioner determines not to provide for the ELUR to be re-executed, a new request for approval of such ELUR may be submitted pursuant to subdivision (6) of this subsection.

(C) If the ELUR sought by the owner has not yet been recorded, and the owner fails to comply with one or more deadlines specified in this subsection, including, but not limited to, an extended deadline or condition imposed by the commissioner, the ELUR shall be deemed disapproved, despite the commissioner's previous acceptance of the ELUR, and the ELUR shall not be recorded.

(D) If the ELUR sought by the owner has been recorded notwithstanding the failure to comply with any deadlines specified in this subdivision, including, but not limited to, an extended deadline or condition imposed by the commissioner, the ELUR recorded by such owner shall be subject to subsection (g) of this section.

(6) An owner, whose request for an ELUR is deemed disapproved pursuant to subdivision (5) of this subsection, may submit a new request for approval of such ELUR. Any such request shall be treated as a new request and shall be resubmitted in its entirety in compliance with the requirements of this section.

(f)ELUR on a Parcel Undergoing Voluntary Remediation

Notwithstanding subsection (c) of this section, the following shall apply only to an ELUR on a parcel undergoing voluntary remediation, pursuant to section 22a-133y of the Connecticut General Statutes.

(1) An ELUR shall not be approved by an LEP nor recorded on such a parcel, unless:

(A) The parcel:

(i) Is designated on a map prepared pursuant to section 22a-426 of the Connecticut General Statutes, as GB or GC for groundwater; and

(ii) Is not the subject of an order issued by the commissioner or a stipulated judgment issued by a court regarding the spill or pollution being remediated;

(B) The LEP who is to sign the ELUR affirmatively determines, in writing, that:

(i) The parcel in question satisfies the requirements of subdivision (1) of this subsection; and

(ii) The proposed ELUR:

(I) Except for waivers approved by the commissioner pursuant to subparagraph (E) of this subdivision, complies with all applicable legal requirements, including, but not limited to, the EUR regulations and the RSRs; and

(II) Is protective of human health and the environment;

(C) All materials required by subsection (b) of this section have been prepared and are complete;

(D) An attorney licensed in the state of Connecticut has prepared an opinion stating that:

(i) No recorded interest in the title search and attorney's report referred to in subsections (b)(4) and (b)(5) of this section and no item identified in the owner's affidavit referred to in subsection (b)(7) of this section allows an activity to be conducted that could or does interfere with the restrictions or obligations of the ELUR; or

(ii) The holder of any recorded interest which allows activity that could or does interfere with the ELUR has agreed to irrevocably subordinate that interest to the ELUR pursuant to subsection (b)(6) of this section; and

(E) If waivers of the requirement to obtain subordination agreements are requested, the materials prepared pursuant to subsections (b)(3), (b)(4), and (b)(5) of this section, along with a fee of $2,500.00, have been submitted to the commissioner. If a waiver request has been submitted to the commissioner, an LEP shall not sign an ELUR, until the commissioner has approved, in writing, all such waiver requests.

(2) If the LEP who is to sign the ELUR affirmatively determines, in writing, that the requirements for an ELUR on a parcel undergoing voluntary remediation have been satisfied, including, but not limited to, the requirements of this subsection, the LEP may sign the EUR opinion and the declaration of ELUR. Any such ELUR shall be recorded pursuant to the procedure set out in subsection (e) of this section, except that the LEP's signature shall substitute for the commissioner's signature whenever mentioned in subsection (e) of this section.

(g)Determination of Invalidity for Non-Compliance

(1) If at any time the commissioner determines that any ELUR does not comply with applicable requirements or was not recorded in compliance with the requirements of this section, including, but not limited to, recordation without the commissioner's authorization, the commissioner may record, or may require the owner to record, a release of the ELUR, which release contains a statement that the ELUR was invalidly recorded and is therefore released, and that the obligation to record an ELUR, if such an obligation exists, has not been satisfied. An invalidly recorded ELUR shall not satisfy any requirement of any statute or regulation requiring such ELUR. If the commissioner releases an ELUR pursuant to this subsection, the commissioner shall notify the owner of the parcel.

(2) Any action taken by the commissioner pursuant to this subsection shall be in addition to and shall not affect the authority of the commissioner under any other statute or regulation, including, but not limited to, the authority to seek civil or criminal penalties or issue any order to prevent or abate pollution.

(h)Application to Pending ELUR Requests

Requests for ELURs submitted to the commissioner on or before February 16, 2021 shall be subject to the following requirements:

(1) If after February 16, 2021 the commissioner provides notice that:

(A) Additional Information is required to approve the ELUR or that the commissioner needs additional information to review the proposed ELUR, the owner requesting the ELUR shall have until 120 days after receipt of such notice to provide the commissioner with the information identified in the notice. The commissioner may grant a single 60 day extension of time to provide any such information; and

(B) Required subordination agreements have not been submitted, the owner requesting the ELUR shall have until 180 days after receipt of such notice to obtain and submit to the commissioner such signed subordination agreements. The commissioner may grant a single 60 day extension of time to submit any such agreements.

(2) If the deadlines in subparagraphs (A) or (B) of subdivision (1) of this subsection are not met, the request for an ELUR shall, without the need for any further action by the commissioner, be deemed disapproved and the proposed ELUR shall not be executed or recorded.

Conn. Agencies Regs. § 22a-133q-2

Effective 2/16/2021