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Equitable Servitudes

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There are two types of ICs specifically involving land transfer documents:

• Notices. 40 Code of Federal Regulations (CFR) Part 373, implementing Section 120(h) of CERCLA, requires that the deed notification provide notice of any hazardous substance that was stored for 1 year or more, or known to be released or disposed of on a site, in any contract for the sale or transfer of property.
• Restrictive Covenant. Navy policy regarding Land Use Controls (LUCs) requires that the United States ensure that ICs “run with the land” such that the immediate transferee and subsequent transferees are required to abide by the ICs (USDoD 1997). State real property laws determine the form of the restrictive covenant. ADEC guidance suggests that the restrictive covenant should take the form of an equitable servitude.

An equitable servitude is listed as one type of control addressed in this ICMP. The Glossary of Terms section of this ICMP generally defines each of the terms. Equitable servitude restrictions are slightly different from the other controls because they are the primary mechanism by which the land, groundwater, and excavation restrictions are implemented. An equitable servitude provides notice to future purchasers of property about the use restrictions since they are contained in the title records of the property.

Generally, restrictive covenants and, in Alaska, equitable servitudes are placed by the grantor (seller) that transfers ownership of real property to the grantee (buyer). Such covenants or servitudes indicate that the grantor is not giving the grantee every possible right of ownership that could be given. Rather, the grantor reserves certain rights, and the grantee takes the property subject to the reserved rights of the grantor. The equitable servitude transferring parcels of property that have land use restrictions will have reserved those rights and uses. The grantor has the authority to enforce those reserved uses against future owners. By this mechanism, the restrictions will be part of the title of the real property. Thus they will “run with the land” and the rights of all future owners of the parcels will be similarly reserved. The provisions of the equitable servitude have been incorporated in the Interim Conveyance transferring the property to TAC. Depending on the context, the terms Equitable Servitude and Interim Conveyance are used interchangeably.

The Interim Conveyance document prohibits the following activities or uses:

• Use of groundwater in the Downtown Area for human or animal consumption, cooking, bathing, showering, gardening, irrigation, or use on consumable food products, watering animals, and any other domestic use;
• Injection or release of any fluids in the Downtown Area that may affect the flow direction of a chemical plume in areas with chemically-affected groundwater;
• Subsurface utility repairs, construction or excavation activities, or any action at or use of the Downtown Area that results in or is reasonably likely to interfere with or impair the integrity of groundwater monitoring wells or recovery systems or other structures at IC sites; systems, procedures or devices constructed or implemented at the Property for cleanup at IC sites;
• Permanent or temporary living accommodations, child care facilities, schools, playgrounds, hospitals, or any residential land use in SWMUs 10, 14, 15, 16, 17, 24, 55, 60, 61, and 67; Source Areas (SA)s 73, 77, 78, 80, 82, and 88; Antenna Field, USTs ANT-1, ANT-2, ANT-3, and ANT-4; Former Power Plant, Building T-1451; ROICC Contractor’s Area (UST ROICC-8); Runway 5-23 Avgas Valve Pit; GCI Compound, UST GCI-1; NMCB Building Area, Underground Storage Tank T-1416 Expanded Area; NORPAC Hill Seep Area; South of Runway 18-36 Area; Tanker Shed, UST 42494; and Yakutat Hangar, UST T-2039-A; SWMU 20, White Alice/Trout Creek Disposal Area; SWMU 23, Heart Lake Drum Disposal Area; SWMU 52, 53, and 59, Former Loran Station; SA 76, Old Line Shed Building; Amulet Housing Well AMW-706 Area; Amulet Housing Well AMW-709 Area; and SWMU 62, New Housing Fuel Leak;
• Excavation of soils or other materials and any activity that disturbs the ground surface of the landfill caps or its drainage system at Roberts Landfill (SWMU 25), Palisades Landfill (SWMU 11), White Alice Landfill (SWMUs 18/19), South Davis Road Landfill (SWMU 4), Causeway Landfill (SWMU 2), Finger Bay Landfill (SWMU 29), Metals Landfill (SWMU 13), White Alice Upper Quarry and White Alice PCB Spill Site (SWMUs 21A and 67).

The Interim Conveyance document contains a full legal description of the properties and a legal description of the covenants or equitable servitudes or land use restrictions. The Navy has provided a copy of the Finding of Suitability to Transfer (FOST) for Parcel 1A (U.S. Navy 2002a) and the addendum to the Parcel 1A FOST (U.S. Navy 2003a) to the U.S. Department of Interior’s Bureau of Land Management (BLM). Both FOSTs and the Interim Conveyance contain a full legal description of the properties and a legal description of covenants that are contained in the conveyance documents, such as the Equitable Servitude and Right of Entry.