CHAPTER 2. ESTABLISHMENT
IC 14-33-2
Chapter 2. Establishment
IC 14-33-2-1
Filing petition
Sec. 1. Freeholders who desire the establishment of a district mustinitiate proceedings by filing a petition in the office of the clerk ofthe circuit court with jurisdiction in the county containing the mostland within the proposed district.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-2
Minimum number of freeholders signing petition
Sec. 2. A petition filed under section 1 of this chapter must besigned by freeholders owning land in the proposed district in theminimum number or proportion of all the freeholders in the proposeddistrict as follows:
(1) Districts of not more than one thousand (1,000) freeholds,thirty percent (30%) of the freeholders.
(2) Districts of at least one thousand one (1,001) and not morethan five thousand (5,000) freeholds, fifteen percent (15%) ofthe freeholders but not less than three hundred (300) signatures.
(3) Districts of at least five thousand one (5,001) and not morethan twenty-five thousand (25,000) freeholds, ten percent (10%)of the freeholders but not less than seven hundred fifty (750)signatures.
(4) Districts of at least twenty-five thousand one (25,001)freeholds, five percent (5%) of the freeholders but not less thantwo thousand five hundred (2,500) signatures.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-3
Number of freeholds in district; number of freeholders qualified tosign petition
Sec. 3. To determine the number of freeholds in the proposeddistrict and the number or proportion of freeholders owning land inthe district qualified to sign a petition for establishment, thefollowing apply:
(1) Only one (1) freeholder's signature may be counted for anyone (1) freehold. If a freehold is held in joint title, only one (1)freeholder's signature may be counted and it may be thesignature of any one (1) of the freeholders owning the freeholdin joint title. If a given freeholder qualifies as set forth in thissection for at least two (2) freeholds, the freeholder's signatureshall be counted for each freehold.
(2) One (1) or more tracts of land owned solely by only one (1)freeholder constitute one (1) freehold.
(3) One (1) or more tracts of land owned in joint title by at leasttwo (2) identical freeholders constitute one (1) freehold.However, if one (1) of the freeholders owning the freehold in
joint title is a different or additional person, each freehold injoint title among nonidentical persons constitutes a separate andadditional freehold.
(4) Subject to subdivisions (1), (2), and (3), if:
(A) a petition for the establishment of a district is filed by amunicipality by ordinance adopted by the municipality'slegislative body; or
(B) the municipality by ordinance has joined in a petition forinclusion in whole or part in the proposed district;
each freeholder in the area of the municipality that is in theproposed district is counted as a signatory to the petition.However, if a freeholder in the area of the municipality that isin the proposed district, after the filing of the petition for theestablishment of the district, files a petition against theestablishment of the proposed district, the number offreeholders considered and counted as signatories to the petitionmust be reduced by the number of freeholders in the area of thecity that is in the proposed district filing a petition against theestablishment of the district.
(5) Private corporations owning land in the proposed districtmay sign the petition by any officer authorized by thecorporation. The officer's signature is prima facie evidence ofthe officer's authorization to sign the petition.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-4
Contents of petition
Sec. 4. A petition must contain the following:
(1) The name for the proposed district, which should be in theform of "_________ Conservancy District".
(2) A description of the territory to be included, not necessarilyby metes and bounds, but sufficiently accurate to inform thecourt and apprise the landowners of the possibility of theinclusion of their land in the district.
(3) A statement of each specific purpose for which the districtis to be established.
(4) A statement of the necessity of accomplishing each purpose.
(5) A statement that the creation of the district will beconducive to the public health, safety, or welfare.
(6) A statement that the costs and damages of and to be paidsolely by the district will probably be less than the benefitsreceived in the district. If the purpose is declared to be watersupply or sewage disposal, this statement need not be included.
(7) Whether the petition is conditioned upon a grant of federalor state money, or both, identifying the money upon which thepetition is conditioned.
(8) Whether conditions attached to federal or state aid, or both,are acceptable if the federal or state government, or both, offera grant of money.
(9) Whether maintenance and operation of the works of
improvement necessary to accomplish any or all of the purposeswill be paid for:
(A) solely by annual levy of the special benefits tax;
(B) by both annual levy of the special benefits tax and anannual assessment on land found to be exceptionallybenefited if exceptional benefits are expected to exist; or
(C) by use of any other method provided by statute as longas the proportion between the tax and assessment is inapproximately the same ratio as used to pay the cost ofestablishing the district and placing the district plan intooperation.
(10) The number of directors to serve on the board, which mustbe three (3), five (5), seven (7), or nine (9).
(11) A statement of the division of the proposed district intoareas, which must be equal in number to the number ofdirectors.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-5
Motion for dismissal of petition
Sec. 5. If:
(1) a petition is conditioned upon a promise of federal money;and
(2) the responsible federal agency informs the court that federalmoney is not available for the district as proposed by thepetition or amendments to the petition;
the petitioners may move that the petition be dismissed. The courtshall grant the motion.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-6
Petition in several counterparts
Sec. 6. A petition may be circulated in several counterparts andstill constitute a single petition.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-7
Petition by municipality
Sec. 7. A municipality (as defined in IC 36-1-2) may file a petitionto initiate a proposed district by ordinance adopted by the legislativebody (as defined in IC 36-1-2). The proposed district may includeland:
(1) solely inside the municipality; or
(2) partially inside and partially outside the municipality.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-8
Bond
Sec. 8. (a) The petitioners must post a bond sufficient to pay thecost of notice and all legal costs of the court connected with the
proceedings in case the court refuses to establish the district anddismisses the petition.
(b) The petitioners shall pay the cost of notice and all legal costsif the court dismisses the petition.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-9
Jurisdiction
Sec. 9. The circuit court with jurisdiction in the county having themost land in the proposed district has exclusive jurisdiction over theestablishment of the district. If the district is established, this courtalso has exclusive jurisdiction over all further hearings in connectionwith the district.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-10
Transfer to court having jurisdiction
Sec. 10. (a) A court in which a petition is filed shall order theproceedings transferred to the court having jurisdiction under section9 of this chapter if:
(1) the petition was filed in the wrong court by mistake; or
(2) the petition is amended so that another county has more landin the proposed district.
(b) The court that establishes a district retains jurisdiction over thedistrict regardless of a change in area of the district that results fromlater proceedings.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-11
Docket; hearing date
Sec. 11. Upon receipt of a petition for the establishment of adistrict, the court shall docket the petition as a civil case and set adate for hearing. The court shall give priority to the hearing indetermining the date, but the court must allow at least thirty (30)days for interested persons to receive notice.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-12
Notice of hearing on petition
Sec. 12. The petitioners shall give notice of hearing on thepetition as follows:
(1) By publication in two (2) newspapers of general circulationin each county having land in the proposed district, three (3)times at successive weekly intervals. The first publication mustbe at least thirty (30) days before the date of the hearing. Ifthere is only one (1) newspaper of general circulation in acounty, three (3) publications in that newspaper are sufficient.
(2) By mailing a copy of the notice at least twenty (20) daysbefore the date of the hearing, first class postage prepaid, toeach freeholder who has not signed the petition and who owns
land in the proposed district, according to the records of thecounty auditor. The person having the notice mailed shall filean affidavit with the court showing the following:
(A) The names of the persons to whom notice was sent.
(B) The address to which the notice was sent.
(C) The date on which the notice was mailed.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-13
Notice of further proceedings
Sec. 13. Notice of the hearing on a petition serves as notice of allfurther proceedings in connection with the district.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-14
Notice of hearing; contents
Sec. 14. The notice of the hearing on the petition, in addition toall other requirements, must contain the following:
(1) A statement that a petition for a district is before the court.
(2) A statement of each purpose for which the district isproposed.
(3) A statement as to which municipalities, townships, andcounties the area of the proposed district lies within, in wholeor in part.
(4) The place of the hearing.
(5) The date of the hearing.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-15
Petition against establishment of a district
Sec. 15. (a) A petition against the establishment of a district maybe presented to the court:
(1) at the hearing on a petition; or
(2) at any time thereafter before the fifth day before the hearingday initially ordered by the court after the receipt of thecommission's report.
(b) If the court finds a petition against the establishment of adistrict contains the signatures of:
(1) at least fifty-one percent (51%) of the freeholders in theproposed district; or
(2) the freeholders who own at least sixty-six and two-thirdspercent (66 2/3%) as determined by the assessed valuation ofthe real property in the proposed district;
the court shall dismiss the petition for the establishment of thedistrict.
(c) Sections 3 and 6 of this chapter apply to this section.
(d) The fifth day before the hearing date initially ordered by thecourt after the receipt of the commission's report is the last date onwhich a petition to withdraw signatures may be filed.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-16
Petition requirements and conformity
Sec. 16. (a) At the hearing on a petition for the establishment ofa district, the court shall determine whether the petition:
(1) bears the necessary signatures; and
(2) complies with the requirements as to form and content.
(b) The court may not dismiss a petition with the requisitesignatures because of alleged defects without permitting, in this orsubsequent proceedings, amendments to correct errors in form orcontent. The court shall hear any interested person on the question.
(c) The following are prima facie evidence concerning therequirements for signatures on a petition:
(1) Verified certification, based on personal knowledge orinformation and belief, by:
(A) the persons who carried the petition; or
(B) other persons knowing the facts as to the identity of thepersons signing the petition and as to the ownership by thosepersons of land within the proposed district.
(2) The records of the county auditor or county treasurer.
(d) The determination of:
(1) the number of freeholds; and
(2) the necessary number and identity of freeholders;
shall be made as of the date of filing a petition. If the petition as ofthat date bears the necessary number of signatures, the petition maynot be dismissed because petitioners withdraw signatures thatreduces the number of signatures below the required amount unlessthe withdrawals constitute more than fifty percent (50%) of thesigners as of the date of filing.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-17
Commission's determination and report
Sec. 17. (a) This section applies to all districts, except for districtsdescribed in section 18 of this chapter.
(b) If the court determines that a petition conforms to therequirements, the court shall enter an order referring the petition tothe commission.
(c) The commission shall make a determination and report to thecourt whether the proposed district meets the following conditions:
(1) The proposed district appears to be necessary.
(2) The proposed district holds promise of economic andengineering feasibility.
(3) The proposed district seems to offer benefits in excess ofcosts and damages for purposes other than the following:
(A) Water supply.
(B) Storage of water for augmentation of stream flow.
(C) Sewage disposal.
(4) Whether the public health will be served immediately orprospectively by the establishment of the district for any of thefollowing purposes: (A) Water supply.
(B) Sewage disposal.
(C) Storage of water for augmentation of stream flow.
(D) Any combination of these purposes.
(5) The proposed district proposes to cover and serve a properarea.
(6) The proposed district could be established and operated ina manner compatible with established:
(A) conservancy districts;
(B) flood control projects;
(C) reservoirs;
(D) lakes;
(E) drains;
(F) levees; and
(G) other water management or water supply projects.
(d) The fact that all the land included in the proposed district isowned by one (1) freeholder or a limited number of freeholders is nota sufficient reason for the commission or the court to makeunfavorable findings on:
(1) the question of the establishment of the district; and
(2) later, if the district is established, the approval of the districtplan.
However, it must appear from the evidence that the land issubdivided or intended for subdivision and development and that theaccomplishment of the purposes proposed and in the mannerproposed would be necessary and desirable for the person acquiringand using the land after subdivision and development.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-18
Commission's determination and report for certain counties
Sec. 18. (a) This section applies only to a district to be located ina county having a population of more than one hundred thousand(100,000) but less than one hundred five thousand (105,000).
(b) If the court determines that a petition conforms to therequirements, the court shall enter an order referring the petition tothe commission.
(c) The commission shall make a determination and report to thecourt whether the proposed district should be established afterdetermining whether the proposed district meets the followingconditions:
(1) The proposed district appears to be necessary.
(2) The proposed district holds promise of economic andengineering feasibility.
(3) The proposed district seems to offer benefits in excess ofcosts and damages for purposes other than the following:
(A) Water supply.
(B) Storage of water for augmentation of stream flow.
(C) Sewage disposal.
(4) Whether the public health will be served immediately or
prospectively by the establishment of the district for any of thefollowing purposes:
(A) Water supply.
(B) Sewage disposal.
(C) Storage of water for augmentation of stream flow.
(D) Any combination of these purposes.
(5) The proposed district proposes to cover and serve a properarea.
(6) The proposed district can be established and operated in amanner compatible with established:
(A) districts;
(B) flood control projects;
(C) reservoirs;
(D) lakes;
(E) drains;
(F) levees;
(G) regional water districts;
(H) regional sewer districts; and
(I) other water management or water supply projects.
(d) The fact that all the land included in the proposed district isowned by one (1) freeholder or a limited number of freeholders is nota sufficient reason for the commission or the court to makeunfavorable findings on:
(1) the question of the establishment of the district; and
(2) later, if the district is established, the approval of the districtplan.
However, it must appear from the evidence that the land issubdivided or intended for subdivision and development and that theaccomplishment of the purposes proposed and in the mannerproposed would be necessary and desirable for the person acquiringand using the land after subdivision and development.
As added by P.L.1-1995, SEC.26. Amended by P.L.170-2002,SEC.95.
IC 14-33-2-19
Commission's hearings to determine facts
Sec. 19. (a) In determining the facts, the commission shall holdhearings at which the commission shall give any interested personthe right to be heard. At the request of an interested person, thecommission shall hold hearings at the county seat of a countycontaining land in the proposed district. The commission shallchoose the county seat.
(b) The commission shall give notice of the hearings bypublication at least one (1) time in one (1) newspaper of generalcirculation in each county containing land in the proposed district.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-20
Expenses
Sec. 20. The expenses of the hearings and other expenses of
necessary investigations and surveys, together with any expenseincurred by the commission in subsequent studies of district plans,are payable initially out of the general money of the commission. Thedistrict shall repay the expenditures, not to exceed thirty percent(30%) of the amount paid by the district to independent privateengineers for the preparation of plans, to the commission from thedistrict's planning money. Commission expenses include expensesincurred by an assisting or a cooperating state agency.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-21
Purpose within jurisdiction of another agency
Sec. 21. (a) If a proposed purpose is within the administrativejurisdiction of another state agency, the commission shall requesttechnical assistance of the agency and give full weight to the agencyin making a report to the court.
(b) State agencies shall furnish assistance to the commissionnecessary to accomplish the purposes of this article.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-22
Report of commission's findings
Sec. 22. The commission shall make a report of the commission'sfindings to the court, including findings on the territorial limits of theproposed district. The commission shall make this report within onehundred twenty (120) days after the petition is referred to thecommission, unless the commission requests and receives approvalfrom the court for additional periods of thirty (30) days each.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-23
Report as prima facie evidence of facts
Sec. 23. The factfinding report of the commission on the proposeddistrict is prima facie evidence of the facts stated in the report in allsubsequent proceedings.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-24
Amendments to petition
Sec. 24. (a) The court may permit amendments to a petition toconform to the findings of the commission.
(b) If a petition is amended to include additional land other thanthe land published in the notice for hearing on the petition, the courtmay make a final determination on the establishment of the districtonly after there is published notice of the amendments or of motionto amend by the petitioners. In addition, the petitioners shall mail anotice of the amendments or of the motion to amend to allfreeholders of the additional land according to section 14 of thischapter, including mailing of notice under section 12 of this chapter.
(c) If a petition is amended to include additional land: (1) the requirements regarding signatures in sections 2 and 3 ofthis chapter must be satisfied as if the land had been includedin the petition as originally filed; and
(2) the following may be filed with the court at any time beforethe conclusion of the hearing after the receipt of thecommission's report:
(A) Additional signatures to the petition for theestablishment of the district.
(B) Signatures to a petition against the establishment of adistrict.
(C) Withdrawals from either petition.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-25
Court hearing; notice
Sec. 25. (a) Upon receipt of the commission's report, the courtshall set a date for a hearing. The court shall give priority to thishearing in determining the date, but the court must allow at leasttwenty-one (21) days for interested persons, including petitioners, tofile exceptions.
(b) The court shall order notice for this hearing as the courtconsiders necessary, but at least one (1) publication must be made inone (1) newspaper of general circulation in each county having landin the proposed district.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-26
Court's determination
Sec. 26. (a) If the court finds at the hearing that:
(1) the only purpose of the district is water supply or sewagedisposal, or both; and
(2) the public health is not served immediately or prospectivelyby the establishment of the district;
the court shall dismiss the petition.
(b) If the court finds at the hearing that:
(1) a purpose of the district is other than water supply or sewagedisposal; and
(2) the costs and damages incident to the establishment of thedistrict will exceed the benefits received within the district;
the court shall dismiss the petition.
(c) If the court finds that the evidence does support the statementsin a petition, the court shall order the district established for thepurposes named in the petition.
(d) If the court finds that the evidence supports at least one (1) ofthe purposes named in a petition but does not support at least one (1)of the other purposes, the court shall order the district establishedonly for the purposes the court finds supported by the evidence.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-27 Order establishing district; modification of election procedures
Sec. 27. (a) If the court orders a district established, the court shallin the order establishing the district determine the following:
(1) The number of directors to serve on the board and theprocedures for the election of the directors.
(2) The division of the district into areas.
(3) The time of the annual meeting of the district, which mustbe before March 1 each year.
(b) After the district is established, the board of directors of theconservancy district may petition the court to modify its order tochange the procedures for election of the directors as provided inIC 14-33-5-2.
As added by P.L.1-1995, SEC.26. Amended by P.L.88-2003, SEC.1.
IC 14-33-2-28
Appeals
Sec. 28. An order:
(1) dismissing a petition; or
(2) establishing a district;
may be appealed to the supreme court within thirty (30) days.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-29
Final order
Sec. 29. If:
(1) a district is established by order of the court and an appealis not taken within thirty (30) days; or
(2) an order establishing a district is affirmed by the supremecourt;
the establishment of the district is final and may not be directly orcollaterally questioned in any action or proceeding.
As added by P.L.1-1995, SEC.26.
IC 14-33-2-30
New petition; filing
Sec. 30. If a petition is dismissed:
(1) because the court finds the evidence does not support thepetition according to section 26 of this chapter; or
(2) according to section 15 of this chapter;
a new petition may not be addressed to any court to establish adistrict with essentially the same boundaries for any of the samepurposes for two (2) years after the date of the order dismissing thepetition. However, a petition dismissed for want of jurisdiction,including an insufficient number of signatures, may be refiled at anytime after the correction of the jurisdictional defect.
As added by P.L.1-1995, SEC.26.