2017 Indiana Code
TITLE 36. Local Government
ARTICLE 7. PLANNING AND DEVELOPMENT
CHAPTER 4. Local Planning and Zoning
36-7-4-1015. Commitments; enforcement

     Sec. 1015. (a) As a condition to the:

(1) adoption of a rezoning proposal;

(2) primary approval of a proposed subdivision plat or development plan;

(3) approval of a vacation of all or part of the plat; or

(4) approval of an application for a:

(A) special exception;

(B) special use;

(C) contingent use;

(D) conditional use; or

(E) variance;

the owner of a parcel of real property may be required or allowed to make a commitment concerning the use or development of that parcel.

     (b) Commitments are subject to the following provisions:

(1) A commitment must be in writing.

(2) Unless the written commitment is modified or terminated in accordance with this subsection, a written commitment is binding on the owner of the parcel.

(3) A commitment shall be recorded in the office of the county recorder. After a commitment is recorded, it is binding on a subsequent owner or any other person who acquires an interest in the parcel. However, a commitment is binding on the owner who makes the commitment even if the commitment is unrecorded. An unrecorded commitment is binding on a subsequent owner or other person acquiring an interest in the parcel only if that subsequent owner or other person has actual notice of the commitment.

(4) A commitment may contain terms providing for its own expiration. A commitment may also contain terms providing that the commitment automatically terminates:

(A) if the zoning district or classification applicable to the parcel is changed;

(B) if the land use to which the commitment relates is changed; or

(C) otherwise in accordance with the rules of the plan commission, board of zoning appeals, or legislative body to which the commitment is made.

(5) Except for a commitment that expires or automatically terminates under subdivision (4), or except as provided in subdivision (10), a commitment may be modified or terminated:

(A) by a decision of the plan commission or board of zoning appeals to which the commitment was made; or

(B) by the decision of the legislative body, if the commitment is made as part of a rezoning proposal being considered by the legislative body under the 600 or 1500 series of this chapter.

A decision by a plan commission or board of zoning appeals must be made at a public hearing after notice of the hearing has been provided under the rules of the plan commission or board of zoning appeals, as the case may be.

(6) During the time a rezoning proposal is being considered by the legislative body under the 600 or 1500 series of this chapter, the owner may make a new commitment to the legislative body or modify the terms of a commitment that was made when the proposal was being considered by the plan commission. This subdivision does not apply to a commitment to which subdivision (10) applies.

(7) Except as provided in subdivision (8), no further action of the plan commission is required for an action taken by the legislative body under subdivision (6) to be effective.

(8) If a commitment is modified under subdivision (6) and the effect of the modification is to make the commitment less stringent, the modified commitment shall be referred to the plan commission for further review. The plan commission shall, not later than forty-five (45) days after referral of the modified commitment:

(A) ratify the modified commitment; or

(B) certify a recommendation to the legislative body that the commitment be further modified.

After considering the recommendation of the plan commission, the legislative body shall then make the final decision on the terms of the modified commitment.

(9) Requiring or allowing a commitment to be made does not obligate the plan commission, board of zoning appeals, or legislative body, as applicable, to adopt, approve, or favorably recommend the proposal or application to which the commitment relates.

(10) This subdivision applies only to a commitment that is made before the parcel subject to the commitment is annexed by a municipality and after the annexation, the parcel becomes subject to the jurisdiction of a plan commission, board of zoning appeals, or legislative body other than the plan commission, board of zoning appeals, or legislative body to which the commitment was made. A commitment may be modified or terminated only by a decision of the legislative body of the annexing municipality. The decision must be made by the legislative body of the annexing municipality after considering the recommendation of the municipal plan commission certified to the legislative body after a public hearing held by the plan commission in accordance with the commission's rules. The rules of the municipal plan commission must include a provision requiring notice to be sent by certified mail at least ten (10) days before the date of the hearing to the following:

(A) The plan commission, board of zoning appeals, or legislative body to which the commitment was made.

(B) Each owner of real property, as shown on the county auditor's current tax list, whose real property is located within three hundred (300) feet of the parcel subject to the commitment.

     (c) The plan commission or board of zoning appeals may adopt rules:

(1) governing the creation, form, recording, effectiveness, modification, and termination of commitments that are made before the plan commission or board of zoning appeals; and

(2) designating which specially affected persons and classes of specially affected persons are entitled to enforce commitments.

     (d) An action to enforce a commitment may be brought in the circuit or superior court of the county by:

(1) the plan commission, the board of zoning appeals, or the legislative body before which the commitment was made;

(2) in the case of a commitment:

(A) modified under subsection (b)(10); or

(B) continued in effect upon annexation;

the legislative body of the municipality that annexed the real property subject to the commitment, if the annexation is effective after the date the commitment was made;

(3) any person who was entitled to enforce a commitment under the rules of the plan commission or board of zoning appeals in force at the time the commitment was made; or

(4) any other specially affected person who was designated in the commitment.

     (e) A person bringing an action to enforce a commitment may request mandatory or prohibitory injunctive relief through the granting of a temporary restraining order, preliminary injunction, or permanent injunction. If an action to enforce a commitment is successful, the respondent shall bear the costs of the action. A change of venue from the county may not be granted in such an action.

     (f) In an action to enforce a commitment, it is not a defense that:

(1) no consideration was given for the commitment;

(2) the commitment does not benefit any designated parcel of property;

(3) the document setting forth the commitment lacks a seal;

(4) there is no privity of estate;

(5) there is not privity of contract; or

(6) there is no proof of damages.

     (g) The following types of conditions, as authorized by this chapter, are not considered commitments and are not subject to subsection (b):

(1) A condition imposed upon primary approval of a plat that must be met before secondary approval of the plat may be granted under the 700 series of this chapter.

(2) A condition imposed upon the approval of an exception, a use, a variance, or a development plan that must be met before an improvement location permit may be issued under the 800 series of this chapter.

(3) A condition imposed upon an approval relative to any other development requirement that must be met before any other secondary approval may be granted or building permit may be issued under this chapter.

(4) A condition that was imposed before July 1, 2011, on an approval relative to any development requirement. However, this subdivision applies only if a copy of the condition has been filed and permanently maintained as a public record in the office of the plan commission or board of zoning appeals that imposed the condition.

     (h) Covenants, easements, equitable servitudes, and other land use restrictions created in accordance with law are not considered commitments and are not subject to subsection (b).

     (i) This subsection applies only to a commitment made as part of a rezoning proposal being considered by the legislative body under the 600 or 1500 series of this chapter. A written commitment may not abrogate the authority of a legislative body to modify or terminate a commitment under this section.

[Pre-Local Government Recodification Citations: 18-7-2-84.1 part; 18-7-4-1015 part; 18-7-4-91; 18-7-5-95.]

As added by Acts 1981, P.L.309, SEC.23. Amended by P.L.320-1995, SEC.20; P.L.126-2011, SEC.36; P.L.130-2014, SEC.1.