Conn. Agencies Regs. § 22a-133q-3

Current through June 15, 2024

Section 22a-133q-3 - NAULs

(a)General

No person shall execute and record a NAUL, 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 a NAUL

The owner of a parcel seeking to execute and record a NAUL shall submit a request to the commissioner or LEP, as applicable. 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 NAUL as specified in section 22a-133q-app2 of the EUR Regulations;

(2) A proposed EUR factsheet;

(3) A draft survey that complies with section 22a-133q-4 of the EUR regulations with a revision date not more than 90 days prior to the request to the commissioner or LEP, as applicable, for a NAUL;

(4) A title search for the parcel on which the proposed NAUL is located, completed not more than 90 days prior to the request to the commissioner or LEP, as applicable, for a NAUL. 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 i 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 for each such interest indicate whether:

(i) The interest does not allow for conduct of an activity that interferes with the restrictions and affirmative obligations of the NAUL; or

(ii) The owner of such interest that does allow for conduct of an activity that interferes with the restrictions and affirmative obligations of the NAUL has agreed to sign the NAUL, pursuant to section 22a-133o(c)(6) of the Connecticut General Statutes.

(6) 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 NAUL;

(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 NAUL; and

(B) 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 (7) of this subsection, affirm that the proposed NAUL does not conflict with items required to be specified in the affidavit by subparagraph (A) of this subdivision;

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

(8) Documents demonstrating:

(A) Compliance with subsection 22a-133k-1(d) of the RSRs; and

(B) That the owner of each interest in the parcel identified in the title search contained in subdivision (4) of this subsection has been notified of the proposed NAUL in compliance with the requirements specified in section 22a-133o(c)(2) of the Connecticut General Statutes;

(9) If the NAUL is to be recorded less than 60 days after providing notice to those who hold an interest in the parcel, written waivers of the 60 day review period signed by the interest holders pursuant to section 22a-133o(c)(2) of the Connecticut General Statutes; and

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

(c)Review of a NAUL

A proposed NAUL shall be approved by the commissioner or by an LEP pursuant to this subsection.

(1) Commissioner review of a NAUL

(A) The commissioner shall not accept a NAUL, unless and until the commissioner determines that:

(i) All of the information necessary to make a determination of whether or not to accept the NAUL, 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 prescribed by the commissioner;

(ii) For all interests in the parcel that allow for conduct of an activity that interferes with the restrictions and affirmative obligations of the NAUL, the owner of such interests has agreed to sign the NAUL pursuant to section 22a-133o(c)(6) of the Connecticut General Statutes;

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

(iv) The NAUL is protective of human health and the environment; and

(v) A non-refundable fee of $5,000, payable in a manner prescribed by the commissioner has been submitted with the request for the commissioner's approval of the NAUL.

(B) The commissioner shall not review a request to approve a NAUL without the required fee and may, at any time, disapprove a request for a NAUL based on any determination made in accordance with subparagraph (A) of this subdivision. If the commissioner does not approve the request for a NAUL, the commissioner shall send a written notice, to the owner of the parcel on which the NAUL would have been placed and state the reasons for such disapproval. If the notice sent by the commissioner indicates that the request for a NAUL 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 NAUL, the owner requesting the NAUL 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) For all holders of interests in the parcel with an interest that allows the conduct of an activity that interferes with the restrictions or affirmative obligations of the NAUL, if compliance with the requirements of section 22a-133o(c)(6) of the Connecticut General Statutes has not been achieved, the owner requesting the NAUL shall have 180 days from the date of the commissioner's notice to demonstrate compliance with said section.

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

(D) An owner whose request for a NAUL has been disapproved pursuant to this subsection may submit a new request for approval of such NAUL. 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.

(E) If the commissioner determines to approve the proposed NAUL, the commissioner shall sign the proposed NAUL and the approved NAUL shall be recorded in accordance with the requirements of subsection (e) of this section.

(2) Review of a NAUL by an LEP

(A) In order for an LEP to approve a proposed NAUL, the LEP who will sign and seal the NAUL shall, before such approval, affirmatively determine, in writing, that:

(i) All of the information necessary to make a determination of whether or not to accept the NAUL, including, but not limited to, documents demonstrating compliance with subsection (b) of this section have been prepared;

(ii) An attorney licensed in the state of Connecticut has prepared an opinion stating that each recorded interest in the parcel identified in subdivision (4) of subsection (b) of this section and each item identified in the owner's affidavit in subdivision (6) of subsection (b) of this section either:

(I) Allows only activities that do not interfere with the restrictions or affirmative obligations in the proposed NAUL; or

(II) Allows activities that do interfere with the restrictions and affirmative obligations of the proposed NAUL, but the owner of each such interest has agreed to sign the NAUL pursuant to section 22a-133o(c)(6) of the Connecticut General Statutes;

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

(iv) The proposed NAUL is protective of human health and the environment.

(B) If an LEP makes the affirmative determination required by subparagraph (A) of this subdivision, the LEP may approve and shall sign the NAUL to indicate such approval. The approved NAUL signed by the LEP shall be recorded in accordance with the requirements of subsection (e) of this section.

(C) If an LEP cannot make the affirmative determination required by subparagraph (A) of this subdivision, the LEP shall not approve and shall decline to sign the proposed NAUL.

(d)Changes or Omissions

If, at any time before the commissioner or an LEP approves a NAUL, the information prepared pursuant to subsection (b) of this section has materially changed or a material omission regarding the information submitted is discovered, the owner shall immediately notify the commissioner or LEP, as applicable, in writing, and include any changed or omitted information.

(e)Recording a NAUL and Post-Recording Submittals

(1) Not more than 7 days after receipt of the NAUL signed by the commissioner the owner shall:

(A) Sign the NAUL approved by the commissioner;

(B) Ensure that a surveyor, licensed in Connecticut, signs and seals the survey prepared pursuant to subsection (b) of this section, for recording, omitting the term "proposed" where it appears; and

(C) Record the NAUL, including the survey, the EUR opinion and other documents, if any, necessary to record the NAUL.

(2) Not more than 30 days after recording the NAUL pursuant to subdivision (1) of this subsection, the owner shall submit the following to the commissioner:

(A) A copy of the recorded NAUL, indicating the volume and page of the land records at which it was recorded;

(B) A copy of the survey recorded with the NAUL;

(C) A title search as required by subsection (b)(4) of this section, updated to include any interest in the parcel listed on the land records at the time the NAUL was recorded; and

(D) A statement by the owner of the parcel on which the NAUL has been placed, on a form prescribed by the commissioner, in which the owner attests that there has been no change to the information provided in the most recent owner's affidavit submitted to the commissioner pursuant to subsection (b)(6) of this section.

(3) When a NAUL has been approved by an LEP:

(A) The LEP shall sign the NAUL and send or provide the signed NAUL to the owner of the parcel on which the NAUL will be placed.

(B) Not more than 7 days from the date that the LEP sends or provides the signed NAUL to the owner, the owner shall:

(i) Sign the NAUL approved by the LEP;

(ii) Ensure that a surveyor, licensed in Connecticut, signs and seals the survey prepared pursuant to subsection (b) of this section, for recording, omitting the term "proposed" where it appears; and

(iii) Record the NAUL, including the survey, and the EUR opinion and other documents, if any, necessary to record the NAUL.

(C) Not more than 30 days after recording the NAUL pursuant to subparagraph (B) of this subdivision, the owner shall submit the following to the commissioner:

(i) A copy of the NAUL request form prepared pursuant to subsection (b) of this section and submitted to the LEP;

(ii) A copy of the recorded NAUL, indicating the volume and page of the land records at which it was recorded;

(iii) A copy of the survey recorded with the NAUL;

(iv) A title search as required by subsection (b)(4) of this section, updated to include any interest in the parcel listed on the land records at the time the NAUL was recorded;

(v) A copy of the report prepared pursuant to subsection (b)(5) of this section and the attorney's opinion prepared pursuant subsection (c)(2)(A)(ii) of this section;

(vi) An executed owner's affidavit, as required by subsection (b)(6) of this section, along with a statement, on a form prescribed by the commissioner, in which the owner attests that there has been no change to the information provided in the owner's affidavit in the time between its execution and the recording of the NAUL;

(vii) The EUR opinion signed and sealed by the LEP approving the NAUL; and

(viii) The documents required by subsection (b)(8) of this section and if the NAUL is recorded less than 60 days after providing notice to those who hold an interest in the parcel, waivers of the 60 day review period signed by the interest holders, pursuant to subsection (b)(9) of this section; and

(ix) A non-refundable fee of $1,500.00 payable in a manner prescribed by the commissioner.

(f)Correction of Non-Compliance/Determination of Invalidity

(1) If at any time the commissioner determines that any NAUL does not comply with applicable requirements or was not recorded or was not recorded in compliance with the requirements of this section, the commissioner may record, or may require the owner to record, a termination of the NAUL, which termination contains a statement that the NAUL was invalidly recorded and is therefore terminated, and that the obligation to record a NAUL, if such an obligation exists, has not been satisfied. An invalidly recorded NAUL shall not satisfy any requirement of any statute or regulation requiring such NAUL. If the commissioner terminates a NAUL 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.

Conn. Agencies Regs. § 22a-133q-3

Effective 2/16/2021