CHAPTER 4. PARKS DEPARTMENT IN CERTAIN CITIES
IC 36-10-4
Chapter 4. Parks Department in Certain Cities
IC 36-10-4-1
Application of chapter
Sec. 1. (a) This chapter applies to each second class city in whichthe legislative body has adopted all or part of this chapter byordinance.
(b) This chapter applies to each third class city in which thelegislative body has adopted all or part of this chapter by ordinance.
(c) In addition, in a consolidated city sections 9(a) and 12 through40 of this chapter apply to the department of parks and recreation andthe board of parks and recreation, subject to IC 36-3-4-23.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.320, SEC.10; Acts 1982, P.L.33, SEC.48.
IC 36-10-4-2
Definitions
Sec. 2. As used in this chapter:
"Board" refers to a board of park commissioners, or board ofparks and recreation of a consolidated city.
"Department" refers to a department of public parks, ordepartment of parks and recreation of a consolidated city.
"District" means the area within the jurisdiction of a department.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-3
Department of public parks; establishment; membership;compensation; oath
Sec. 3. (a) A department of public parks is established as anexecutive department of the city.
(b) The department is under the control of a board of parkcommissioners. The board consists of four (4) commissionersappointed by the city executive. Each commissioner must be afreeholder residing in the city, and no more than two (2)commissioners may have the same political affiliation.
(c) A second class city may pay each commissioner an annualsalary in an amount fixed by the fiscal body. The commissionersshall be paid their actual expenses upon approval by the cityexecutive.
(d) Before beginning his duties each commissioner shall take andsubscribe the usual oath of office. The oath shall be indorsed uponthe certificate of appointment and filed with the city clerk. If acommissioner has not filed his oath:
(1) within thirty (30) days after the beginning of his term; or
(2) by the date of his appointment if he was appointed after thebeginning of the term;
he is considered to have refused to serve and the office becomesvacant.
As added by Acts 1981, P.L.309, SEC.111. Amended by
P.L.176-2002, SEC.10.
IC 36-10-4-4
Commissioner; appointment; removal
Sec. 4. (a) By February 1 each year, the executive shall appoint acommissioner to fill the vacancy caused by the expiration of a term.Each commissioner appointed holds office for a term of four (4)years, beginning with January 1 in the year of appointment. If avacancy occurs on the board, the executive shall appoint acommissioner for the remainder of the term.
(b) A commissioner may not be removed from office except uponcharges preferred in writing before the executive, with a hearing heldon them. If the executive is bringing the charges, the fiscal body shallappoint a hearing officer. The only permissible reasons for removalare as follows:
(1) Inefficiency.
(2) Neglect of duty.
(3) Malfeasance in office.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.320, SEC.11.
IC 36-10-4-5
Second class city; resolution to extend boundaries; remonstrance;referendum; election; effective date of extension; operation ofparks
Sec. 5. (a) In a second class city, the board may adopt a resolutionto extend the boundaries of the district to the county boundariesunless the county has already established a park district underIC 36-10-3. The board must file a certified copy of the resolutionwith the county auditor and county treasurer. Notice of the adoptionof the resolution shall be given by publication once each week fortwo (2) weeks in accordance with IC 5-3-1.
(b) Whenever the board has adopted a resolution under subsection(a), remonstrances may be filed by the affected voters within ninety(90) days after the last publication under subsection (a).Remonstrances must be signed in ink by the voter in person and statethe address of each signer and that the signer is a registered voter. Aperson who signs a remonstrance when he is not a registered votercommits a Class D felony. More than one (1) voter may sign thesame remonstrance.
(c) A vote on the public question shall be held if at least thenumber of the registered voters of the county required underIC 3-8-6-3 to place a candidate on the ballot file remonstrances undersubsection (b) with the county clerk protesting the extension of thedistrict.
(d) The county clerk shall certify to the county election board inaccordance with IC 3-10-9-3 whether or not the required number ofregistered voters of the county have filed remonstrances. If sufficientremonstrances have been filed, the county election board shallpublish a notice of the election once a week for two (2) consecutive
weeks in accordance with IC 5-3-1-4, the first publication to be atleast thirty (30) days before the date of the election. The questionpresented to the voters at the election shall be placed on the ballot inthe form prescribed by IC 3-10-9-4 and must state "Shall the countypark district be established?".
The election is governed by IC 3 whenever not in conflict with thischapter. The county election board shall make a return of the votescast at the referendum.
(e) If a majority of the votes cast are against the extension of thedistrict, the district is not extended. If sufficient remonstrances arenot filed or if a majority of the votes cast support the extension of thedistrict, the district is extended.
(f) The extension of the district is effective on January 1 of theyear following the adoption of the resolution or, if an election isheld, on January 1 of the year following the date of the election.
(g) A municipality that becomes part of a district by reason of theextension of the district under this section may continue to establish,maintain, and operate parks and other recreational facilities underany other law. The parks and other recreational facilities shall beoperated by the municipality separate from the parks and otherrecreational facilities under the jurisdiction of the board in the samemanner as they would be operated by the municipality if it was notwithin the district.
(h) The operation of separate parks or recreational facilities by amunicipality does not affect the obligation of property owners withinthe municipality to pay all taxes imposed on property within thedistrict.
(i) The legislative body of a municipality may elect that theseparate parks or other recreational facilities of the municipality bemaintained or operated as a part of the district by adopting aresolution or an ordinance to that effect. The separate park or otherrecreational facility comes under the jurisdiction of the board at thetime specified in the resolution or ordinance.
As added by Acts 1981, P.L.309, SEC.111. Amended byP.L.358-1987, SEC.3; P.L.3-1987, SEC.569; P.L.12-1995, SEC.133.
IC 36-10-4-6
Extended districts in certain counties; board of parkcommissioners; term; vacancy
Sec. 6. (a) This section applies whenever a district is extendedunder section 5 of this chapter and such district is not located in acounty having a population of more than one hundred seventythousand (170,000) but less than one hundred eighty thousand(180,000).
(b) After the district is extended under section 5 of this chapter,the board consists of five (5) commissioners. Two (2) commissionersshall be appointed by the city executive, two (2) commissioners shallbe appointed by the county executive of the county in which the cityis located, and one (1) commissioner shall be appointed by a majorityvote of the presidents of the school boards of the school corporations
in the county in which the city is located. The commissionersappointed by the county executive must be residents of the area ofthe district outside the corporate boundaries of the city. Thecommissioners appointed by the county executive may not bemembers of the same political party, and the commissionersappointed by the city executive may not be of the same politicalparty.
(c) A commissioner of an extended district may hold office for anunlimited number of terms.
(d) After the initial terms have expired, all of the commissionersafter the extension of the district shall be appointed for terms of four(4) years, beginning on January 1. The terms of office of the three (3)commissioners in office at the time of the extension terminateJanuary 1, and the terms of office of the new commissioners beginJanuary 1. The city executive shall appoint one (1) commissioner foran initial term of two (2) years and one (1) for an initial term of four(4) years. The county executive shall appoint two (2) commissioners,one (1) commissioner for an initial term of two (2) years and theother commissioner for an initial term of four (4) years. Thepresidents of the school boards shall appoint one (1) commissionerfor an initial term of four (4) years.
(e) A vacancy in the office of a commissioner shall be filled forthe remainder of the term by the appointing authority.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.320, SEC.12; P.L.358-1987, SEC.4; P.L.12-1992, SEC.191;P.L.170-2002, SEC.172.
IC 36-10-4-6.1
Extended districts in other counties; board of park commissioners;term; vacancy
Sec. 6.1. (a) This section applies whenever a district is extendedunder section 5 of this chapter and such district is located in a countyhaving a population of more than one hundred seventy thousand(170,000) but less than one hundred eighty thousand (180,000).
(b) After the district is extended under section 5 of this chapter,the board consists of five (5) commissioners. Three (3)commissioners shall be appointed by the city executive, and two (2)commissioners shall be appointed by the county executive of thecounty in which the city is located. The commissioners appointed bythe county executive must be residents of the areas of the districtoutside the corporate boundaries of the city. No more than two (2) ofthe three (3) commissioners appointed by the city executive may bemembers of the same political party, and the commissionersappointed by the county executive may not be of the same politicalparty.
(c) A commissioner of an extended district may hold office for anunlimited number of terms.
(d) All commissioners after the extension of the district shall beappointed for terms of four (4) years, beginning on January 1. Thethree (3) commissioners whose terms of office have not expired
continue in office and are considered appointees of the city executiveuntil the expiration of the four (4) year terms for which they eachwere originally appointed. The county executive shall appoint two(2) commissioners, one for a term of two (2) years and the other fora term of four (4) years. As the term of each commissioner expires,a new commissioner shall be appointed for a term of four (4) yearsso that at all times the board consists of three (3) commissionersappointed by the city executive and two (2) commissioners appointedby the county executive.
(e) A vacancy in the office of a commissioner shall be filled forthe remainder of the term by the appointing authority.
As added by P.L.358-1987, SEC.5. Amended by P.L.12-1992,SEC.192; P.L.170-2002, SEC.173.
IC 36-10-4-7
Board of park commissioners; election of officers; quorum; regularmeetings; office; report; disposition of money received
Sec. 7. (a) The board shall elect at its first regular meeting inFebruary each year one (1) of the commissioners president andanother vice president. The vice president shall perform the duties ofthe president during the absence or disability of the president.
(b) A majority of the commissioners constitutes a quorum. Actionof the board is not binding unless authorized by a majority of thecommissioners at a regular or duly called special meeting of theboard. If there is a tie vote on any question, the city executive shallcast the deciding vote.
(c) The board shall fix a time for holding regular meetings.Special meetings of the board may be called at any time by itspresident, or by any two (2) of the commissioners, upon a writtenrequest to the secretary. If a special meeting is called, the secretaryshall notify the commissioners by mailing written notices of the timeof the meeting at least one (1) day before the meeting. All meetingsare open to the public.
(d) The proper authorities of the city shall provide a suitableoffice for the board where its maps, plans, documents, records, andaccounts shall be kept, subject to public inspection at all reasonabletimes.
(e) By February 1 of each year the board shall make a report to thecity executive of:
(1) its proceedings, including a full statement of its receipts anddisbursements for the preceding calendar year;
(2) the acquisition of lands by the board;
(3) improvements made by the board; and
(4) general character of the work of the board during thepreceding year.
(f) Money received by the board shall immediately be paid intothe city treasury and credited to the department. All expendituresrelating to the parks, parkways, public grounds, public ways, andother places of the city under the control of the department shall beprovided for by a special levy of taxes. The money shall be paid from
the city treasury when ordered by the board.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-8
Taxing district for levying special benefit taxes
Sec. 8. All of the area:
(1) within the corporate boundaries of a city; and
(2) in unincorporated areas of the county to which the districthas been extended;
constitutes a taxing district for levying special benefit taxes for parkpurposes as provided in this chapter. Area added to the district undersection 5 of this chapter is considered to have received a specialbenefit from the park facilities of the district equal to or greater thanthe special taxes imposed on the area by this chapter in order to payall or a part of the cost of the facilities.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-9
Control of property within district; public ways passing throughpark property; powers of board
Sec. 9. (a) The board has, subject to statute and to the right givenby section 5 of this chapter to other municipalities within the districtto operate separate parks and recreational facilities, exclusive controlof all property within the district used for park purposes.
(b) In addition, the part of all public ways that pass through parkproperty is considered to be a part of this property and is also underthe control of the board.
(c) The board may do the following:
(1) Acquire, lay out, and improve land for park purposes in thedistrict and may equip, operate, maintain, and regulate thepublic use of that property.
(2) Appoint a secretary, and, in his absence a secretary protempore, landscape architects, engineers, surveyors, attorneys,clerks, guards, laborers, playground directors, and otheremployees, prescribe their duties and authority, and fix theircompensation. If a superintendent of the department isappointed, he shall be appointed under IC 36-4-9-2.
(3) Make rules not in conflict with statutes or the ordinances ofthe city for the management of the property under its control.
(4) Require the department of public safety of the city to detailpolice officers to execute the orders and enforce the rules madeby the board and to be subject to the board, with the cityexecutive deciding any disagreement between the two (2)departments as to the number and duration of the details ofpolice officers.
(5) Locate, erect, and maintain fountains in parks, as well as inthe public ways that form the boundaries of parks, or intersectwith them.
(6) Erect and maintain suitable fences around parks.
(7) Seize and impound animals found running at large in any of
the parks, including establishing suitable places for theimpounding.
(8) Lease or sell any buildings, grounds, materials, equipment,or any parts of them owned by the city that are under the controlof the department and that the board determines are not requiredfor park purposes, permitting any other department of the cityor the school city to occupy or use the property upon terms thatare approved by the executive. All sums realized from the lease,sale, or other disposition of property shall be deposited in thecity treasury to the credit of the department and expended forpark purposes. All buildings and structures erected upon landunder the control of the board are under the control of theboard, and the board may not permit the erection of anybuilding or structure upon land unless it becomes the propertyof the city. A lease or sale of minerals, mineral rights, orroyalties for minerals for more than one (1) year from landowned by a second class city or a lease for more than one (1)year in a city that adopted this chapter by ordinance underIC 19-7-9 (before its repeal on September 1, 1981) may bemade only to the highest and best bidder after notice of the saleor lease has been given by publication in accordance withIC 5-3-1.
(d) The board may also do the following:
(1) Vacate public ways, or parts of them, on land under thecontrol of the board in the same manner as the city works boardmay vacate them.
(2) Take over and control public ways, or parts of them, withinthe city and convert them into boulevards or pleasure drivewaysif they connect with or run into or through a park, parkway, orboulevard or are necessary for the establishment of a park orboulevard system in the city, including grading, improving, andbeautifying them and relinquishing to other departments of thecity the control of a public way or parkway in streets taken overthat are not necessary or desirable for maintenance as part ofthe park system of the city.
(3) Petition the proper board of the city to construct anynecessary drainage or sanitary sewers and connections in apublic way or parkway bordering park property and require apublic service corporation to lay, install, and connect water andgas mains and electric light conduits in and along a boulevardor park drive when reasonably necessary.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.45, SEC.97; Acts 1981, P.L.320, SEC.13; P.L.3-1990, SEC.139.
IC 36-10-4-10
Powers of board extended five miles outside corporate cityboundaries
Sec. 10. In a city that adopted this chapter by ordinance underIC 19-7-9 (before its repeal on September 1, 1981), the powersgranted the board by section 9(a) extend five (5) miles outside the
corporate boundaries of the city.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.320, SEC.14; P.L.3-1990, SEC.140.
IC 36-10-4-11
Shade trees and lawns along public ways; resolution assessing cost;hearing; assessments; playgrounds; public school grounds orbuildings
Sec. 11. (a) The board has exclusive control over the planting,trimming, and maintenance of shade trees along the public ways ofthe city. The board may:
(1) take over and control the improvement, maintenance, andembellishment of all lawns and street centers in and along thepublic ways of the city; or
(2) compel the owners of lots and parcels of land bordering onthe public ways to plant, trim, protect, and maintain shade treesand to sod, plant, and maintain lawns and centers after firstadopting a resolution showing the public necessity andassessing the cost against the abutting lots and parcels of land.
(b) After adopting a resolution under subsection (a), the boardshall give notice and provide a hearing, with right of remonstrance,in the same manner as is provided for street and sidewalkimprovements by the works board of the city. However, instead ofletting a contract to the highest and best bidder, the board may carryout the improvement with its own employees and charge the actualcost in the same manner as if a contract was let. The cost mayinclude a reasonable guaranty, but may not, however, exceed theestimate to be made and placed on file at the time of the adoption ofthe resolution.
(c) All assessments levied for the improvements are payable inone (1) payment, without notice, at the next regular taxpaying timeafter the completion of the improvement. The assessments are liensagainst the separate lots and parcels of land abutting theimprovement. If they are not paid when due, they may be enforcedby foreclosure, after giving notice, in the same manner asassessments for street and sidewalk improvements.
(d) The board has exclusive control over the establishment andmaintenance of public playgrounds, public playfields, publicswimming pools, public baths, community centers, and recreationcenters in the city. The board shall select directors, assistants, andemployees to manage and control the facilities and shall prescribetheir duties and fix their compensation. The board may expend thesums from the general park fund for recreation purposes that itconsiders advantageous to the city.
(e) The governing body of the school corporation of the city maypermit the use of public school grounds or buildings under its controlthat are required or adaptable for recreation purposes when that usewill not interfere with use for school purposes.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-12
Open spaces for park, recreational, or civic purposes
Sec. 12. The board may develop open spaces for park,recreational, or civic purposes in cities where areas have becomeblighted or require redevelopment for the public welfare incooperation with the redevelopment commission and the plancommission for the city, providing out of park funds, by bond issue,from other available funds, or by the receipt of grants or donationsfor such purposes the money necessary for the redevelopmentcommission to acquire the areas for the department and paying themoney to the redevelopment commission for the project.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-13
Law governing adoption of plans, giving of notice, and receiving ofbids in letting of contract
Sec. 13. The board is subject to IC 36-1-12 governing similaraction by the works board when adopting plans, giving notice, andreceiving bids in the letting of a contract for public improvements orrepairs.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.57, SEC.43.
IC 36-10-4-14
Actions to recover damages for breach of agreement, penalties forviolation of ordinance, damages for injury to property, andpossession of property
Sec. 14. The board may bring an action in the name of the city torecover:
(1) damages for the breach of an agreement, expressed orimplied, relating to or growing out of the establishment,management, or improvement of the parks, public ways, andother property used for park purposes under its control;
(2) penalties for the violation of an ordinance;
(3) damages for injury to the personal or real property relatingto the parks, public ways, and other property used for parkpurposes; or
(4) possession of property.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-15
Publication of rules adopted by board
Sec. 15. All rules that the board adopts under this chapter shall bepublished in accordance with IC 5-3-1.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.45, SEC.98.
IC 36-10-4-16
Taxes; disbursements; borrowing; general park fund; specialfunds; fees; deposits; withdrawals Sec. 16. (a) A tax on the taxable property in the district, as itappears on the tax duplicate, shall be levied annually by the citylegislative body for park purposes.
(b) The tax shall be collected the same as other city taxes arecollected, and the city fiscal officer shall, between the first and fifthdays of each month, notify the board of the amount of taxes collectedfor park purposes during the preceding month. At the date ofnotification, the city fiscal officer shall credit the park fund with theamount.
(c) The board may expend on behalf of the city all sums of moneycollected from:
(1) taxes;
(2) the sale of privileges in the parks of the city;
(3) the sale of bonds of the city for park purposes; and
(4) any other source.
All gifts, donations, or payments that are given or paid to the city forpark purposes belong to the general park fund, the specialnonreverting operating fund, or the special nonreverting capital fundto be used by the board as provided by this chapter. Warrants forexpenditures shall be drawn by the city fiscal officer upon a voucherof the board signed by the president or vice president and secretary.
(d) The city legislative body may borrow money for the use of thedepartment and may issue the bonds of the city to pay back theborrowed money in the manner provided by statute for the issue ofbonds for the general purposes of the city. However, the board maynot contract debts beyond the amount of its annual income and theamount available from the sale of bonds or other sources.
(e) All money remaining in the treasury to the credit of the boardat the end of the calendar year belongs to the general park fund, thespecial nonreverting operating fund, or the special nonrevertingcapital fund for use by the board for park purposes.
(f) Park and recreation facilities and programs shall be madeavailable to the public free of charge as far as possible. However, ifit is necessary in order to provide a particular activity, the board maycharge a reasonable fee.
(g) The city legislative body may establish by ordinance uponrequest of the board:
(1) a special nonreverting operating fund for park purposesfrom which expenditures may be made as provided byordinance, either by appropriation by the board or by the citylegislative body; or
(2) a special nonreverting capital fund for the purpose ofacquiring land or making specific capital improvements fromwhich expenditures may be made by appropriation by the citylegislative body.
The city legislative body shall designate the fund or funds into whichthe city fiscal officer shall deposit fees from golf courses, swimmingpools, skating rinks, or other major facilities requiring majorexpenditures for management and maintenance. Money receivedfrom fees other than from major facilities or received from the sale
of surplus property shall be deposited by the city fiscal officer eitherin the special nonreverting operating fund or in the nonrevertingcapital fund, as directed by the board. However, if neither fund hasbeen established, money received from fees or from the sale ofsurplus property shall be deposited in the general park fund. Moneyfrom either special fund may be disbursed only on approved claimsallowed and signed by the president and secretary of the board.
(h) Money placed in the special nonreverting capital fund may notbe withdrawn except for the purposes for which the fund wascreated, unless the fiscal body repeals the ordinance establishing thefund. The fiscal body may not repeal the ordinance under suspensionof the rules.
(i) Money procured from fees or received from the sale of surplusproperty shall be deposited at least once each month with the cityfiscal officer.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.320, SEC.15; P.L.372-1983, SEC.2; P.L.173-2003, SEC.40.
IC 36-10-4-17
Granting of public utility franchise
Sec. 17. A franchise may not be granted by the city for theconstruction or maintenance of railways or telephone, telegraph,pipe, or conduit lines upon, across, over, or through a park, parkway,park boulevard, boulevard, or driveway under the control of theboard without the consent of the board.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-18
Ordinance authorizing sale of park lands; disposition of proceeds
Sec. 18. If a board decides to sell a part of the park lands ownedby the city, it shall prepare an ordinance authorizing the sale andsubmit it to the city legislative body. If the legislative body passesthe ordinance, the land shall be sold as other land of the city is soldand the proceeds of the sale credited to the department. The proceedsshall be expended for the improvement of the remaining park land orfor the purchase of other land for park purposes, as the boardconsiders best for the city.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-19
Building lines; establishment by resolution; nature of rights in landbetween building line and park property; procedure; regulation ofuse of property; conflict of interest
Sec. 19. (a) The board may, by resolution, establish a building linedetermining the distance at which all structures erected upon anypremises fronting a park, parkway, or boulevard may be erected.Upon the adoption of the resolution, the board shall acquire, in thename of the city, by donation, condemnation, or purchase, the landbetween the building line and the park, parkway, or boulevard, or aninterest in the land that will secure to the board the right to prevent
the erection of or to require the removal of all structures outside ofthe line, or both. After the adoption of the resolution, a permit maynot be issued by a department or officer of the city authorizing theerection of a structure outside of the established line unless approvedby the board.
(b) The establishment of a building line outside of a park,parkway, or boulevard in connection with the donation,condemnation, or purchase of land or an interest in it is a perpetualannihilation of all rights of the owners of property over and acrosswhich the building line runs to erect a structure or a part of onebetween the building line and the park, parkway, or boulevard.However, the perpetual and irrevocable free license to use andoccupy the land between a building line and the park property isreserved to the property owner for purposes other than the erectionof structures.
(c) If the board decides to establish a building line, the board hasthe same powers and shall proceed in the same manner in thecondemnation, assessment, and collection of benefits, awards ofdamages, remonstrances, hearings, appeals, rehearings, and othermatters as it does in the acquisition of real property. Benefits maynot be assessed against property other than that abutting on the park,parkway, or boulevard along which the building line is establishedand within the limits of the building line. However, the total amountof benefits assessed against lots and parcels of land fronting on thepark, parkway, or boulevard and located within the limits of thebuilding line must equal the total cost of the establishment of thebuilding line.
(d) A subdivision of lots or parcels of land lying within fivehundred (500) feet of park, parkway, or boulevard may not beaccepted for record and is not valid without the approval of theboard. If the board considers it necessary, in order to promote publichealth, safety, morals, or general welfare, the board may, by generalorder or resolution, regulate:
(1) horse racing; and
(2) the location of trades, industries, commercial enterprises,buildings, or devices designed for uses that, in the order orresolution, are specified as injurious to the public health, safety,morals, or general welfare;
within five hundred (500) feet of a park, parkway, or boulevard. Theright to regulate the use of this property for these purposes isconsidered to be included in a gift, donation, acquisition, orcondemnation under this chapter. However, a lawful business beingconducted upon adjacent property when jurisdiction is acquired overthe property may not be prohibited or abated without a fair valuationand due compensation.
(e) Commissioners, and clerks, assistants, appointees, oremployees of the board may not hold an interest, either directly orindirectly, in any kind of enterprise conducted for profit within onethousand (1,000) feet of a park, parkway, or boulevard under thejurisdiction of the board. The possession or ownership of an interest
operates to vacate the officer or position held by the person andmakes him ineligible to hold an office or position under the boardwhile the interest is, either directly or indirectly, possessed orretained by him.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-20
Acquisition of property for various purposes; holding property intrust; establishment of museums; contracts for management andmaintenance of facilities
Sec. 20. (a) Real and personal property may be granted, devised,leased, bequeathed, or conveyed to a city for park purposes or for theestablishment, improvement, maintenance, or ornamentation of apark, playground, boulevard, pleasureway, parkway, wheelway,garden for horticulture and floriculture, museum, zoological garden,collection of natural history, observatory, library, fountain,monument, work of art, art gallery, or other public ground.
(b) The city may take and hold the property in trust or uponconditions that are approved by the board. The property and therents, issues, and profits from it are subject to the exclusive controlof the board.
(c) The board shall also provide accommodations and take thesteps that the money at its disposal will justify for securing andpreserving collections of natural history and the establishment ofmuseums in the parks of the city.
(d) The property may be improved, added to, and changed at theboard's discretion and shall be protected, preserved, and arranged bythe board for the public use and enjoyment under the rules that theboard prescribes.
(e) The public may use and enjoy the facilities, although the boardmay impose an admission charge for entrance into the gardens,museums, and other collections.
(f) The board may also contract for the management andmaintenance of gardens, museums, art galleries, or other institutionswith a society incorporated under statute, as long as the public hasthe right to use and enjoy the facilities. The board may also imposean admission charge for entrance into these facilities, which remainsubject to the control of the board.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-21
Eminent domain; damages; prior public use
Sec. 21. (a) The board may exercise the power of eminent domain:
(1) within the corporate boundaries of the city; and
(2) outside of the city within ten (10) miles, or five (5) miles ifthe city adopted this chapter by ordinance under IC 19-7-9(before its repeal on September 1, 1981), of the corporateboundaries of the city and within the county in which the cityis located;
for the purposes of this chapter. The board may award damages to
landowners for real property and property rights appropriated orinjuriously affected and assess benefits to property beneficiallyaffected. If the board cannot agree with the owners, lessees, oroccupants of any real property selected by the board for the purposesof this chapter, the board may condemn the property as provided inthis chapter, and, when not inconsistent with this chapter, mayproceed under statutes governing the condemnation of land andrights-of-way for other public purposes.
(b) If the land or surface of the ground on, over, or across whichit is necessary or advisable to establish, construct, or improve aboulevard, parkway, or pleasure driveway is already in use foranother public purpose or has been condemned or appropriated fora use authorized by statute and is being used for that purpose by theentity appropriating it, the public use or prior condemnation does notbar the board from condemning the use of the ground for parkpurposes. However, the use by the board does not permanentlyprevent the use of the land or the surface of the ground for the priorpublic use or by the entity condemning or appropriating it. In aproceeding prosecuted by the board to condemn the use of land orthe surface of the ground for purposes permitted by this chapter, theboard must show that its proposed use will not permanently orseriously interfere with the continued use of the land or the surfaceof the ground.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.320, SEC.16; P.L.3-1990, SEC.141.
IC 36-10-4-22
Authority concerning rivers, streams, and waterways
Sec. 22. (a) This section applies only to the parts of rivers,streams, and waterways that are within or bordering park land andboulevards under the control of the board.
(b) The board may:
(1) keep open rivers, streams, and waterways and prevent thedeposit of unsightly or obnoxious materials in or along them;
(2) take over, improve, control, and provide for the protectionof the banks of rivers, streams, and waterways, includingbuilding levees and taking over levees already built;
(3) control the flow of water;
(4) make rules and regulations concerning rivers, streams, andwaterways and their banks as is necessary for these purposes;
(5) dam or change the course of a river, stream, or waterway toprovide water for sprinkling, boating, or other purposes;
(6) provide pools or artificial lakes in parks; and
(7) construct bridges and viaducts over or tunnels under rivers,watercourses, or railroads.
(c) The board may also require the owners of real propertyabutting along and upon rivers, streams, and waterways to removeunsightly or obnoxious materials, filth, and unhealthy and unsanitarysubstances in or along them. Five (5) days' written notice shall begiven to the owners that states the materials, filth, or substances to be
removed. If a property owner fails to comply with the notice theboard may remove the materials, filth, or substances. The expense ofremoval shall be certified by the board to the county treasurer andshall be collected by the treasurer in the same manner as assessmentsby the board for the improvement of boulevards are collected underthis chapter and other statutes, including the sale of the property bythe treasurer to pay delinquent expenses.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-23
Improvement of parkway, pleasure driveway, or boulevard;orders; assessment of costs; remonstrance; changing and fixinggrade
Sec. 23. (a) The board may, in a proceeding separate from theacquisition of land by purchase or appropriation, order theimprovement of a parkway, pleasure driveway, or boulevard, or partof any of these, under the control of the board by surface grading,paving, curbing, or constructing sidewalks in the same manner as theworks board of the city may improve a public way or sidewalk withinthe city. The powers, rights, and duties of the board in carrying outthis work are the same as the powers, rights, and duties of the worksboard in the performance of similar work under general procedures.In addition, the board may determine the kind of pavement to beused. The powers, rights, and duties of the persons to be assessed arethe same as those provided under general procedures for doingsimilar work by the works board, with the cost of improvementsassessed to the same extent as property is assessed.
(b) When costs are assessed, they become a lien upon the propertyto the same extent, are enforceable in the same manner, and have thesame rights to payment by installments and appeal as are providedfor street and sidewalk improvements ordered by the works board.
(c) If a majority of the resident freeholders affected by theproposed improvement remonstrate in writing against theimprovement, the board may, after giving ten (10) days' notice to theremonstrators, petition the circuit court to specifically order theimprovement. If at the hearing on the petition the board establishesthe public necessity of the proposed improvement and demonstratesthat the benefits will equal the assessments against the separate lotsor parcels of land, the order shall be made.
(d) If land along one (1) side of a parkway, pleasure driveway, orboulevard is owned by the city or used by it for park purposes,one-half (1/2) of the cost of the improvements under this section, aswell as any part of the other one-half (1/2) of the cost of theimprovements that cannot be met by special assessments againstabutting property, is considered to be benefits accruing to all of theproperty, real and personal, not exempt from taxation under thischapter and located within the boundaries of the district. The costshall be paid out of the proceeds of the bonds of the taxing districtthat are issued and sold for those purposes. Payment shall be madeas provided in sections 35 and 37 of this chapter. (e) The board may provide for the rough grading of a parkway,pleasure driveway, or boulevard at the same time as the acquisitionof the property or after the property, or a necessary part of it, hasalready been secured under section 21 of this chapter.
(f) The board may change and fix the grade of a boulevard, parkboulevard, public driveway, or public ground under its control to thesame extent as the works board of the city may change and fix thegrade of a public way or public place within the city.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-24
Appropriation of property; purposes
Sec. 24. The board may appropriate property for:
(1) establishing a park, parkway, pleasure driveway, orboulevard;
(2) widening or extending a park, parkway, pleasure driveway,or boulevard;
(3) opening, widening, or extending a route or right-of-way fora sewer or channel of a watercourse connected with ornecessary for the protection of a park, parkway, pleasuredriveway, or boulevard;
(4) constructing an embankment or levee along a watercoursefor the protection of a park, parkway, pleasure driveway, orboulevard;
(5) constructing a bridge or viaduct upon or connected with apark, parkway, pleasure driveway, or boulevard; or
(6) converting a public way connecting a park, parkway, orboulevard in the city into a boulevard or pleasure driveway.
The board may also, in the same proceeding, provide for theconstruction of improvements to the property for the purposes forwhich the property is appropriated. In addition, the board mayprovide for the construction of any of the improvements when theproperty or a part of it has been secured by contract or other means.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-25
Resolution to acquire property; adoption; contents; notice ofadoption; appraisal; title; hearing; remonstrance, final action
Sec. 25. (a) This section applies only to:
(1) the acquisition of real property; or
(2) a work of improvement;
that will be financed by the issuance of bonds.
(b) If a board decides to:
(1) acquire land for any of the purposes of this chapter, eitherby purchase or appropriation, and to proceed with animprovement authorized by this chapter, other than surfacegrading and paving under section 23 of this chapter; or
(2) acquire property without proceeding at that time with animprovement; or
(3) proceed with an improvement when the property has been
already secured by purchase or otherwise;
it shall adopt a resolution under subsection (c).
(c) The resolution must:
(1) declare the purpose;
(2) describe the land to be acquired, the manner of acquisition,and, in case of appropriation, other land that may be injuriouslyaffected; or describe the land already acquired and intended tobe used for the proposed improvement; and
(3) if the improvement is provided for in the resolution, requirethat preliminary plans and specifications and an estimate of thecost of the proposed improvement be prepared by the engineerselected to do the work.
The resolution must be open to inspection by all persons interestedin or affected by the appropriation of the land or the construction ofthe work.
(d) Upon the adoption of the resolution, the board shall havenotice of the adoption and content of it published in accordance withIC 5-3-1. The notice must name a date on which the board willreceive or hear remonstrances from persons interested in or affectedby the proceedings and determine the public utility and benefit of theproposed project.
(e) Notice shall be sent by certified mail to each owner of land tobe appropriated under the resolution, using the owner's address asshown on the tax duplicates. In addition, notice of the land to beappropriated shall be published in accordance with IC 5-3-1. Allpersons affected in any manner by the proceedings, including alltaxpayers in the district, are considered to be notified of thependency of the proceedings and of all subsequent acts, hearings,adjournments, and orders of the board by the original notice bypublication.
(f) In the resolution and notice, separate descriptions of each pieceor parcel of land are not required, but it is a sufficient description ofthe property purchased, to be purchased, or to be appropriated ordamaged to give a description of the entire tract by metes andbounds. It does not matter if the property is composed of one (1) ormore lots or parcels or owned by one (1) or more persons.
(g) If the land or a part of it is to be acquired by purchase, theresolution must also state the maximum proposed cost. The boardmay, at any time before the adoption of the resolution:
(1) obtain from the owner or owners of the land an option for itspurchase; or
(2) enter into a contract for its purchase upon the terms andconditions that the board considers best.
The option or contract is subject to the final action of the boardconfirming, modifying, or rescinding the resolution and to thecondition that the land shall be paid for only out of the special fundresulting from the sale of district bonds and from local assessments,as provided in this chapter.
(h) If the board decides to acquire any lots or parcels of land bypurchase, the board shall appoint three (3) qualified appraisers to
appraise the land. The appraisers may not be interested, directly orindirectly, in any land to be acquired under the resolution or that maybe injured or incur local benefits. The appraisers shall take an oaththat they have no interest in the matter and that they will honestlyand impartially make the valuation. They shall then immediatelyview the land and determine the true market value of it at that time.They shall report the appraisal in writing, which shall be filed withand becomes a part of the record of the proceeding. The board maynot take an option on the land or enter into a contract to purchase itat a higher price than the value named in the report.
(i) The title to any land to be acquired under the resolution,whether by purchase or appropriation, does not vest in the city untilit is paid for out of the special fund created by the sale of bonds andfrom local assessments of special benefits as provided in this chapter.Any indebtedness or obligation incurred by the board due to theacquisition of land or to construction of a work shall be paid out ofthe funds under the control of the board and is not an indebtednessor obligation of the city.
(j) At or before the time fixed for the hearing, an owner of land tobe appropriated or injuriously affected under the resolution, or aperson owning real or personal property located within the corporateboundaries of the city, may file a written remonstrance with thesecretary of the board. At the hearing, which may be adjourned fromtime to time, the board shall hear all persons interested in theproceedings and all remonstrances that have been filed. Afterconsidering this evidence, the board shall take final actiondetermining the public utility and benefit of the proposed project byeither confirming, modifying, or rescinding the resolution. The actionshall be recorded and is final and conclusive upon all persons.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.320, SEC.17.
IC 36-10-4-26
Letting of contract for construction; bidder's deposit; payment;limitation of cost; validity of contract
Sec. 26. (a) If the board orders acquisition and construction andhas advertised for bids for the construction after final adoption of theresolution, it shall require each bidder to deposit with his bid acertified check for an amount not less than two and one-half percent(2 1/2%) of the engineer's estimate of the cost of the improvement toinsure the execution of the contract for which the bid is made.
(b) The contract must state that payments for all work under thecontract shall be made only from the special fund derived from theproceeds of bonds and special assessments. A contract may not be letfor a higher amount than the estimated cost of the work, and theboard may let parts of the proposed work under different contracts.The board may, at any time before the execution of a contract for thework, rescind any acts or orders in relation to the proposed work ortake the supplementary proceedings that the board considersnecessary. (c) The validity of a contract may not be subsequently questionedby any person except in an action to enjoin the performance of thecontract instituted within fifteen (15) days after the execution of thecontract. After that fifteen (15) day period, all proceedings andorders of the board preliminary to the contract are valid, conclusive,and binding upon all persons and are not subject to attack. Theamount of the benefits resulting to all property in the city and thespecial tax shall be levied only for the balance.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-27
Properties subject to special tax; lands subject to specialassessment for benefits; determination of benefits to all propertyin city
Sec. 27. (a) After final action of the board confirming theresolution in its original form, all property located within thecorporate boundaries of the city is subject to a special tax to providemoney to pay the total cost of acquiring land, of an improvement, orof both, including all necessary incidental expenses. The special taxconstitutes the amount of benefits resulting to the property from theproceedings and shall be levied as provided in this chapter.
(b) If the board determines that any lots or parcels of land,exclusive of improvements, lying within two thousand (2,000) feetof either side of property to be acquired for a work of constructionwill incur a particular benefit because of proximity to the property tobe acquired or the work of construction, the lots and parcels of landare subject to a special assessment for benefits in addition to thebenefits received by them in common with all other property locatedin the city. The special assessment shall be determined in accordancewith this chapter, but the total amount of the additional benefitsassessed may not exceed twenty-five percent (25%) of the total costof acquiring land, of the improvement, or of both.
(c) The total amount of additional benefits assessed and finallyconfirmed or adjudged against lots and parcels of land, exclusive ofimprovements, lying within two thousand (2,000) feet shall bededucted from the total cost of acquiring new park land, of theimprovement, or of both. The balance of the total cost constitutes theamount of the benefits resulting to all property in the city, with thespecial tax levied only for the balance.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-28
Lists of property sought to be taken, certain property incurringparticular benefit, and persons affected injuriously or beneficially
Sec. 28. (a) When the resolution has been finally confirmed by theboard, the board shall have prepared a list of all the owners orholders or property sought to be taken or that will be injuriouslyaffected either by the appropriation of the land or the improvement.The board shall also have prepared a list of all of the owners orholders of lots or parcels of land lying within two thousand (2,000)
feet on either side of the land to be acquired for park or boulevardpurposes, for an improvement, or for both that will incur a particularbenefit as provided in section 27 of this chapter by the acquisition,location, establishment, construction, or improvement of a park,playground, parkway, pleasure driveway, boulevard, improvement,or structure provided in the resolution.
(b) In addition to the names, the list must show with reasonablecertainty a description of the property belonging to each person thatwill be appropriated or affected either injuriously or beneficially. Agreater certainty in names and description is not necessary for thevalidity of an award or assessment than is required in the assessmentof taxes.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-29
Exempt personal and real property; exception
Sec. 29. All real and personal property that is exempt from taxesby statute is exempt from all taxes and assessments under thischapter, except assessments against abutting property forimprovements constructed by the board under section 23 of thischapter.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-30
Awards; determination; notice describing location of landappropriated or acquired
Sec. 30. (a) After completion of the list, the board shall proceedto determine and award:
(1) the amount of damages sustained by the owners of theparcels of land required to be appropriated, if any, as providedin the resolution or that will be injuriously affected; and
(2) the amount of particular benefits that will accrue to the lotsor parcels of land, exclusive of improvements, lying within twothousand (2,000) feet on either side of the property to beacquired, of the improvement, or of both because of proximityto the land to be acquired and the establishment or constructionof a project for park purposes as provided in the resolution andin addition to the benefits received by the lots or parcels of landin common with all property located in the city.
However, the total amount of benefits assessed against the lots andparcels of land, exclusive of improvements, located within twothousand (2,000) feet may not exceed twenty-five percent (25%) ofthe total cost of land acquisition or of the improvement.
(b) When the list has been completed, the board shall havepublished in accordance with IC 5-3-1 a notice describing thelocation of the land appropriated or acquired by the purchase or theland on which the improvement is to be made. The notice must alsostate:
(1) the general character of the improvement;
(2) what assessments have been made against land within two
thousand (2,000) feet of park property; and
(3) that the assessment list, with the names of the owners towhom damages have been awarded and against whomassessments have been made, a description of property affected,and the amounts of preliminary awards or assessments for eachparcel of property affected is on file and can be seen in theboard's office.
(c) In addition, the board shall have a written notice served uponthe owner of each parcel of land taken or injuriously affected, byleaving a copy at his last and usual place of residence in the city orby delivering a copy to the owner personally. The notice must showseparately each item of the determination regarding property ownedby him.
(d) The board shall also have mailed a notice to the residence, ifknown, of persons owning land or parts of land against which specialassessments have been made, showing each item of the determinationas it affects those persons. If a person is a nonresident or hisresidence is not known, then he is considered to have been notifiedby the publication. The notice must name a day, not earlier than ten(10) days after service of the notice, the last day of publication, orthe date of mailing, on which the board will receive and hearremonstrances from persons regarding the amount of their respectiveawards or assessments. Persons not included in the lists, assessments,or awards who claim to be entitled to an assessment or award areconsidered to have been notified of the pendency of the proceedingsby the original notice of the resolution of the board and by thepublication as provided in this section.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,P.L.45, SEC.99.
IC 36-10-4-31
Notice to mentally incompetent persons or minors; defects orirregularities in proceedings
Sec. 31. (a) If a person having an interest in land affected by theproceedings is mentally incompetent or under eighteen (18) years ofage, the board shall certify this fact to its attorney. The attorney shallthen apply to the court and secure the appointment of a guardian forthe person. The board shall give notice to the guardian, who shallappear and protect the interest of the protected person. However, ifthe protected person already has a guardian, the notice may be servedupon that guardian. The requisites of notice to the guardian are thesame as for other notices.
(b) If there are defects or irregularities of any kind in theproceedings with respect to one (1) or more interested persons, theydo not affect the proceedings as to any other person. In case of adefect, supplementary proceedings of the same general character asthose already prescribed may be had in order to cure it.
As added by Acts 1981, P.L.309, SEC.111. Amended by P.L.33-1989,SEC.129.
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