Sunset Conservation Easement Oversight Commission

Conservation easements - division of conservation - conservation easement oversight commission - certification of conservation easement holders - conservation easement tax credit certificates - conservation cash fund - rules. The act creates the division of conservation (division), as a type 2 entity in the department of regulatory agencies (DORA). The director of the division (director) is charged with aiding in the administration and enforcement of the statutes governing conservation easements and to administer, in consultation with the conservation easement oversight commission (commission), the certification of conservation easement holders and the issuance of tax credit certificates.

The act creates the commission as a type 2 entity within DORA and allocates its powers, duties, and functions to the division. The commission consists of 8 members and specifies the appointing authority of the members and the institutional interests they represent or expertise they must possess.

The act requires the division, in consultation with the commission, to establish and administer a program to certify qualified organizations that hold conservation easements for which a tax credit is claimed. The division shall conduct a review of each application and consider the recommendations of the commission before making a final determination to grant or deny certification. The applicant is required to pay the division an annual fee, as prescribed by the division, to cover the costs of the division and the commission in administering the certification program.

The statutory sections creating the commission and requiring the certification of qualified organizations are repealed, effective July 1, 2019.

If the division determines that an applicant does not possess the applicable qualifications for certification or that the applicant has violated any provision of the statute, rules promulgated by the division, or any division order, the division may deny the applicant a certification or deny the renewal of a certification.

The act requires the division to promulgate rules to effectuate the duties of the commission. The act specifies the matters the rules must address.

The division is required to maintain and update an online list, accessible to the public, of the organizations that have applied for certification and whether each has been certified, rejected for certification, or had its certification revoked or suspended in accordance with the act.

The division is required to receive tax credit certificate applications from and issue certificates to landowners for income tax credits for conservation easements donated on or after January 1, 2011.

The act requires the division to establish and administer a process by which a landowner seeking to claim an income tax credit for any conservation easement donation made on or after January 1, 2014, must apply for a tax credit certificate. The landowner has the burden of proof regarding compliance with all applicable laws, rules, and regulations. Division staff is required to review each application and advise and make recommendations to the director and the commission regarding the application. The director has authority and responsibility to determine the credibility of the appraisal and, in making this determination, is required to consider compliance with certain requirements specified in the act.

A landowner submitting an application for a tax credit certificate or an application for an optional preliminary advisory opinion is required to pay the division a fee as prescribed by the division. The state treasurer is required to credit the fees collected to the conservation cash fund (fund) created in the act.

The act specifies procedures to be followed if, during the review of an application for a tax credit certificate, the director or commission identifies any potential deficiencies in the application, including procedures by which the landowner may address the potential deficiencies.

The director or the commission may deny an application if the landowner has not demonstrated to the satisfaction of the director or the commission that the application complies with pertinent statutory requirements; fails to provide the information and documentation required; or fails to timely respond to any written request or notice from the division, the director, or the commission.

If the director and the commission either do not identify any potential deficiencies with an application, or all potential deficiencies that have been identified are subsequently addressed to the satisfaction of the director and the commission, the director and the commission must approve the application, and the division is required to issue a tax credit certificate to the landowner in a timely manner. If any potential deficiencies that have been identified are not subsequently addressed to the satisfaction of the director and the commission, the division must issue a written denial of the application to the landowner documenting the deficiencies.

The landowner may appeal to the director either the director's or the commission's denial of an application, in writing, within 30 days after the issuance of the denial. If the landowner fails to appeal the denial of an application within 30 days after the issuance of the denial, the denial becomes final, and the division is prohibited from issuing a tax credit certificate to the landowner. The decision of the director or the commission is subject to judicial review by the court of appeals.

For the 2014 calendar year and each calendar year thereafter, the division is required to create a report, which shall be made available to the public, containing certain aggregate information concerning tax credit certificate applications as specified in the act.

The director is authorized to share publicly available information regarding conservation easements with a third-party vendor for the purpose of developing and maintaining a registry of conservation easements in the state with a corresponding map displaying information concerning the boundaries of each easement in the state.

In addition to the tax credit certificate application process, a landowner may submit a proposed conservation easement donation to the division to obtain an optional preliminary advisory opinion regarding the transaction. The opinion may address the proposed deed of conservation easement, appraisal, conservation purpose, or other relevant aspect of the transaction. The division, the director, and the commission are required to review the information and documentation provided and issue either a favorable opinion or a nonfavorable opinion. The preliminary opinion is advisory only and is not binding for any purpose upon the division, the director, the commission, or the department of revenue.

Notwithstanding the "Colorado Open Records Act", the division, the director, and the commission are required to deny the right of public inspection of any documentation or other record related to information obtained as part of an individual landowner's application for a tax credit certificate or an optional preliminary advisory opinion. The division, the director, and the commission may share documentation or other records related to information obtained pursuant to the act with the department of revenue.

Nothing in the act affects any tax credit that is claimed or used for conservation easement donations occurring prior to January 1, 2014.

The act requires the division to convene a working group in conjunction with the department of law, the department of revenue, and DORA to develop statutory and regulatory recommendations on certain issues specified in the act. The working group is required to submit a report to specified legislative committees no later than December 1, 2018. The report must include any recommendations for legislation or rulemaking to address the issues specified in the act.

The act repeals various existing statutory sections concerning conservation easement holders, the commission, and conservation easement tax credit certificates that are superseded by the act.

(Note: This summary applies to this bill as enacted.)