2013 Indiana Code
TITLE 32. PROPERTY
ARTICLE 24. EMINENT DOMAIN
CHAPTER 2. PROCEDURES FOR CITIES AND TOWNS
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IC 32-24-2
Chapter 2. Procedures for Cities and Towns
IC 32-24-2-1
"Fiscal officer" defined
Sec. 1. As used in this chapter, "fiscal officer" means:
(1) the city controller of a consolidated city or second class city;
(2) the city clerk-treasurer of a third class city; or
(3) the town clerk-treasurer of a town.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-2
"Municipality" defined
Sec. 2. As used in this chapter, "municipality" means a city or
town.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-3
"Property" defined
Sec. 3. As used in this chapter, "property" refers to real property
or personal property.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-4
"Works board" defined
Sec. 4. As used in this chapter, "works board" means:
(1) the board of public works or the board of public works and
safety of a city; or
(2) the legislative body of a town.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-5
Alternate procedure
Sec. 5. If:
(1) a municipality has the power to acquire property under this
chapter; or
(2) another statute provides for proceedings by a municipality
for acquiring property under this chapter;
the board exercising those powers may proceed under IC 32-24-1
instead of this chapter.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-6
Application of chapter; condemnation resolutions; notice;
remonstrances
Sec. 6. (a) This chapter applies if the works board of a
municipality wants to acquire property for the use of the municipality
or to open, change, lay out, or vacate a street, an alley, or a public
place in the municipality, including a proposed street or alley
crossings of railways or other rights-of-way. However, this chapter
does not apply if a municipality wants to acquire the property of a
public utility (as defined in IC 8-1-2-1).
(b) The works board must adopt a resolution that the municipality
wants to acquire the property. The resolution must describe the
property that may be injuriously or beneficially affected. The board
shall have notice of the resolution published in a newspaper of
general circulation published in the municipality once each week for
two (2) consecutive weeks. The notice must name a date, at least ten
(10) days after the last publication, at which time the board will
receive or hear remonstrances from persons interested in or affected
by the proceeding.
(c) The works board shall consider the remonstrances, if any, and
then take final action, confirming, modifying, or rescinding its
original resolution. This action is conclusive as to all persons.
As added by P.L.2-2002, SEC.9. Amended by P.L.172-2009, SEC.6.
IC 32-24-2-7
List of affected property owners
Sec. 7. (a) When the final action under section 6 of this chapter is
taken, the works board shall have prepared the following:
(1) A list of all the owners or holders of the property, and of
interests in it, sought to be acquired or to be injuriously
affected.
(2) If a street, alley, or public place is to be opened, laid out,
changed, or vacated in the municipality, or within four (4) miles
of it, a list of the owners or holders of property, and of interests
in it, to be beneficially affected by the work.
(b) The list required by subsection (a) may not be confined to the
owners of property along the line of the proposed work but must
include all property taken, benefitted, or injuriously affected. In
addition to the names, the list must show, with reasonable certainty,
a description of each piece of property belonging to those persons
that will be acquired or affected, either beneficially or injuriously. A
greater certainty in names or descriptions is not necessary for the
validity of the list than is required in the assessment of taxes.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-8
Damage awards and benefit assessments; notice; remonstrances
Sec. 8. (a) Upon the completion of the list, the works board shall
award the damages sustained and assess the benefits accruing to each
piece of property on the list.
(b) When the assessments or awards are completed, the works
board shall have a written notice served upon the owner of each
piece of property, showing the amount of the assessment or award,
by leaving a copy of the notice at the owner's last usual place of
residence in the municipality or by delivering a copy to the owner
personally.
(c) If the owner is a nonresident, or if the owner's residence is
unknown, the municipality shall notify the owner by publication in
a daily newspaper of general circulation in the municipality once
each week for three (3) successive weeks.
(d) The notices must also name a day, at least ten (10) days after
service of notice or after the last publication, on which the works
board will receive or hear remonstrances from persons with regard
to the amount of their respective awards or assessments.
(e) Persons not included in the list of the assessments or awards
and claiming to be entitled to them are considered to have been
notified of the pendency of the proceedings by the original notice of
the resolution of the works board.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-9
Guardianship proceedings; notice
Sec. 9. (a) If a person having an interest in property affected by
the proceedings is mentally incompetent or less than eighteen (18)
years of age, the works board shall certify that fact to the
municipality's attorney.
(b) The municipality's attorney shall apply to the proper court and
secure the appointment of a guardian for the person less than
eighteen (18) years of age or the mentally incompetent person. The
works board shall give notice to the guardian, who shall appear and
defend the interest of the protected person. However, if the protected
person already has a guardian, the notice shall be served on that
guardian. The requirements of notice to the guardian are the same as
for other notices.
(c) If there is a defect in the proceedings with respect to at least
one (1) interested person, the defect does not affect the proceedings
except as it may concern the interest or property of those persons,
and the defect does not affect any other person concerned.
(d) In case of a defect, supplementary proceedings of the same
general character as those prescribed by this chapter may be initiated
in order to correct the defect.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-10
Remonstrances; appeal
Sec. 10. (a) A person notified or considered to be notified under
this chapter may appear before the works board on the day fixed for
hearing remonstrances to awards and assessments and remonstrate in
writing against them.
(b) After the remonstrances have been received, the works board
shall either sustain or modify the awards or assessments in the case
of remonstrances that have been filed. The works board shall sustain
the award or assessment in the case of an award or assessment
against which a remonstrance has not been filed.
(c) A person remonstrating in writing who is aggrieved by the
decision of the works board may, not later than twenty (20) days
after the decision is made, take an appeal to a court that has
jurisdiction in the county in which the municipality is located. The
appeal affects only the assessment or award of the person appealing.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-11
Appeal procedure; discontinuance
Sec. 11. (a) The appeal may be taken by filing an original
complaint in the court against the municipality within the time
required by section 10(c) of this chapter, setting forth the action of
the works board with respect to the assessment and stating the facts
relied upon as showing an error on the part of the board. The court
shall rehear the matter of the assessment de novo and confirm,
reduce, or increase the assessment. If the court reduces the amount
of benefit assessed or increases the amount of damages awarded, the
plaintiff may recover costs. If the court confirms the amount of the
assessment, the plaintiff may not recover costs. The judgment of the
court is conclusive, and an appeal may not be taken from the court's
judgment.
(b) If upon appeal the benefits assessed or damages awarded by
the works board are reduced or increased, the municipality may,
upon the payment of costs, discontinue the proceedings. It may also,
through the works board, make and adopt an additional assessment
against all the property originally assessed in the proceeding, or that
part that is benefitted, in the manner provided for the original
assessment. However, such an assessment against any one (1) piece
of property may not exceed ten percent (10%) of the original
assessment against it.
(c) If the municipality decides to discontinue the proceedings
upon payment of costs and if assessments for benefits have already
been paid, the amounts paid shall be paid back to the person or
persons paying them.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-12
Assessment of benefits; local assessment roll
Sec. 12. (a) Upon completion of the assessment list by the works
board, the list shall be delivered to the fiscal officer of the
municipality. From the time the respective amounts of benefits are
assessed, or if a lot or parcel has sustained both benefits and damages
because of an improvement as stated in the assessment list, then the
excess of benefits assessed over damages awarded constitutes a lien
superior to all other liens except taxes against the respective lot or
parcel.
(b) The fiscal officer of the municipality shall immediately
prepare a list of the excess of benefits, to be known as the local
assessment list. If the municipality is a second class city and the
county treasurer collects money due the city, the local assessment list
shall be delivered to the county treasurer.
(c) The duties of the fiscal officer of the municipality and county
treasurer are the same as prescribed with regard to assessments for
street improvement. The provisions of the statute relating to:
(1) the payment of street improvement assessments by
installments on the signing of waivers and issuance of bonds
and coupons in anticipation;
(2) the duties of the fiscal officer and the county treasurer in
relation to them; and
(3) the enforcement of payment of assessments in proceedings
for the improvement of streets by the works board;
applies to these assessments.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-13
Due date of benefit assessments; foreclosure of liens; costs
Sec. 13. (a) The benefit assessments are due and payable to the
fiscal officer or county treasurer from the time of the preparation or
delivery of the assessment duplicate.
(b) If an assessment is not paid within sixty (60) days, the
municipality, by its attorney, shall proceed to foreclose the liens as
mortgages are foreclosed, with similar rights of redemption, and have
the property sold to pay the assessments. The municipality may
recover costs, with reasonable attorney's fees, and interest from the
expiration of the sixty (60) days allowed for payment, at the rate of
six percent (6%) per year.
(c) If the person against whom the assessment is made is a
resident of the municipality, demand for payment must be made by
delivering to the person personally, or leaving at the person's last or
usual place of residence, a notice of the assessment and demand for
payment.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-14
Payment of damage awards
Sec. 14. The works board may determine if any part of the
damages awarded shall be paid out of funds appropriated for the use
of the board. However, not more than two thousand dollars ($2,000)
in damages may be paid out of the municipality's funds for any
improvement or condemnation except under an ordinance
appropriating money for the specific improvement or condemnation.
All benefits assessed and collected by the fiscal officer or county
treasurer are subject to draft, in the usual manner, upon certificate by
the works board in favor of persons to whom damages have been
awarded. Any surplus remaining above actual awards belongs to the
municipality. The works board may delay proceedings until the
benefits have been collected.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-15
Certificates of damages; disputes as to whom damages should be
paid; injunction
Sec. 15. (a) Upon completion of the award of damages or
whenever any time for delay as provided has expired, the works
board shall make out certificates for the proper amounts and in favor
of the proper persons. Presentation of the certificates to the fiscal
officer of the municipality entitles the person to a warrant on the
fiscal officer or the county treasurer. The certificates or vouchers
shall, whenever practicable, be actually tendered to the persons
entitled to them, but when this is impracticable, they shall be kept for
the persons in the office of the works board. The making and fixing
of the certificate is a valid and effectual tender to the person entitled
to it, and the certificate must be delivered to that person on request.
(b) If a dispute or doubt arises as to which person the money shall
be paid, the works board shall make out the certificate in favor of the
municipality's attorney for the use of the persons entitled to it. The
attorney shall draw the money and pay it into court in a proper
proceeding, requiring the various claimants to interplead and have
their respective rights determined.
(c) If an injunction is obtained because damages have not been
paid or tendered, the works board may tender the certificate for the
amount with interest from the time of entry upon the property, if any
has been made, including all accrued costs. The injunction shall then
be dissolved. The pendency of an appeal does not affect the validity
of a tender made under this section, but the municipality may
proceed with its acquisition of the property in question. However,
when a lot or parcel has sustained both benefits and damages because
of improvements as stated in the assessment list, only an excess of
damages awarded over benefits assessed is payable under this
section.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-16
Shoreline improvements; condemnation procedure
Sec. 16. (a) This section applies whenever the works board of a
municipality located upon or adjoining a harbor connected with a
navigable stream or lake, or upon any navigable channel, slip,
waterway, or watercourse, wants to acquire for the use of the
municipality any property for a right-of-way for seawalls, docks, or
other improvement of the harbor, channel, slip, waterway or
watercourse.
(b) The works board shall adopt a resolution that the municipality
wants to acquire the property, describing the property that may be
injuriously or beneficially affected. All proceedings necessary for the
completion of and payment for any such undertaking, including
notice, remonstrance, appeal, letting of and performance of contracts,
assessment and collection of payment for benefits, and the
determination and payment of damages to property, are the same, to
the extent applicable, as those proceedings for street improvements
of the municipality by its works board or other entity charged by
statute with the performance of those duties on behalf of the
municipality.
As added by P.L.2-2002, SEC.9.
IC 32-24-2-17
Attorney's fees
Sec. 17. If applicable, a landowner who incurs attorney's fees
through the exercise of eminent domain under this chapter is entitled
to reasonable attorney's fees in accordance with IC 32-24-1-14.
As added by P.L.163-2006, SEC.14.
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