CHAPTER 1. INCORPORATION; DISSOLUTION
IC 36-5
ARTICLE 5. GOVERNMENT OF TOWNS
IC 36-5-1
Chapter 1. Incorporation; Dissolution
IC 36-5-1-1
Application of chapter
Sec. 1. This chapter applies to all towns except an included town(as defined in IC 36-3-1-7).
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.5-1989,SEC.105.
IC 36-5-1-2
Proceedings to incorporate; petition; contents; signatures; numberof petitioners
Sec. 2. (a) Proceedings to incorporate a town may be instituted byfiling a petition in quadruplicate with the executive of each countyin which a part of the territory sought to be incorporated is located.The petition must be signed by at least fifty (50) owners of land inthe territory and must state that:
(1) the territory is used or will, in the reasonably foreseeablefuture, be used generally for commercial, industrial, residential,or similar purposes;
(2) the territory is reasonably compact and contiguous;
(3) there is enough undeveloped land in the territory to permitreasonable growth of the town; and
(4) incorporation is in the best interests of the citizens of theterritory.
(b) The signatures of the petitioners must be verified, and theverification must include a statement that the petitioners are ownersof land in the territory sought to be incorporated.
(c) In determining the number of petitioners, not more than one(1) person having an interest in a single parcel of land may becounted, and a person owning more than one (1) parcel of land in thearea may be counted only once.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.195-1984,SEC.1; P.L.86-1999, SEC.1.
IC 36-5-1-3
Items to accompany petition
Sec. 3. A petition for incorporation must be accompanied by thefollowing items, to be supplied at the expense of the petitioners:
(1) A survey, certified by a surveyor registered underIC 25-21.5, showing the boundaries of and quantity of landcontained in the territory sought to be incorporated.
(2) An enumeration of the territory's residents and landownersand their mailing addresses, completed not more than thirty (30)days before the time of filing of the petition and verified by thepersons supplying it. (3) A statement of the assessed valuation of all real propertywithin the territory, certified by the township assessor of thetownship in which the territory is located, or the countyassessor if there is no township assessor for the township.
(4) A statement of the services to be provided to the residentsof the proposed town and the approximate times at which theyare to be established.
(5) A statement of the estimated cost of the services to beprovided and the proposed tax rate for the town.
(6) The name to be given to the proposed town.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.241-1999,SEC.3; P.L.219-2007, SEC.115; P.L.146-2008, SEC.707.
IC 36-5-1-4
Filing of petition; requirements; forwarding of copies;investigation; recommendations
Sec. 4. (a) On receipt of a petition for incorporation, the countyexecutive shall examine it to see that it meets the requirements ofsections 2 and 3 of this chapter. If the petition is in order, theexecutive shall mark it with the date of filing and immediatelyforward one (1) copy to the plan commission, if any, havingjurisdiction.
(b) The commission shall investigate the proposed incorporationand report their recommendations of approval or disapproval to thecounty executive at least ten (10) days before the hearing required bysection 5 of this chapter. In making their investigations, they may usethe services of any state or local government agency, and in makingtheir report and recommendations, they shall be guided by therequirements for incorporation set out in section 8 of this chapter.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.24-1995,SEC.25.
IC 36-5-1-5
Public hearing on petition; notice
Sec. 5. The county executive shall hold a public hearing on apetition for incorporation not less than sixty (60) nor more thanninety (90) days after the date of the filing of the petition, and shallrequire the petitioners to send notice of the hearing by certified mailto:
(1) the residents and landowners of the territory as listed in thepetition;
(2) the legislative body of each municipality having anycorporate boundary within three (3) miles of the perimeter ofthe proposed new town;
(3) the executive of any other county in which a part of theproposed new town is located; and
(4) the executive of a township in which all or a part of theproposed new town is located.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-6
Parties entitled to be heard; remonstrance; dismissal of petition
Sec. 6. The recipients of the notice required by section 5 of thischapter are parties to and are entitled to be heard at the publichearing. The petition for incorporation shall be dismissed if at anytime during the incorporation proceedings, including an appeal, thecounty executive or a court hearing an appeal is presented with averified remonstrance against incorporation, signed by at least:
(1) fifty-one percent (51%) of the owners of a fee simpleinterest in real property in the affected territory; or
(2) the owners of seventy-five percent (75%), in assessedvaluation, of the real property in the affected territory.
The executive or court may determine the validity of theremonstrance by submitting it to the county auditor for verification.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-7
Incorporating town within certain distance of city corporateboundaries; consent by city ordinance; application; expiration
Sec. 7. (a) The county executive must obtain the consent byordinance of the legislative body of a consolidated city beforeincorporating a town if any part of the proposed town is within four(4) miles of the corporate boundaries of the city.
(b) The county executive must obtain the consent by ordinance ofthe legislative body of a second or third class city beforeincorporating a town if any part of the proposed town is within three(3) miles of the corporate boundaries of the city.
(c) Subsection (b) does not apply to a county having a populationof more than four hundred thousand (400,000) but less than sevenhundred thousand (700,000).
As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1982,P.L.1, SEC.58; P.L.195-1984, SEC.2; P.L.5-1988, SEC.212;P.L.12-1992, SEC.161.
IC 36-5-1-7.1
County executive; population more than 45,000 but less than47,000; exemption from consent requirements
Sec. 7.1. The executive of a county having a population of morethan fifty-five thousand (55,000) but less than sixty-five thousand(65,000) is exempt from:
(1) the requirements of section 7(a) of this chapter; and
(2) the requirements of section 7(b) of this chapter if the secondor third class city is within a county containing a consolidatedcity.
As added by Acts 1982, P.L.210, SEC.1. Amended by P.L.12-1992,SEC.162; P.L.170-2002, SEC.145.
IC 36-5-1-8
Approval of petition; required findings
Sec. 8. The county executive may approve a petition for
incorporation only if it finds all of the following:
(1) That the proposed town is used or will, in the reasonablyforeseeable future, be used generally for commercial, industrial,residential, or similar purposes.
(2) That the proposed town is reasonably compact andcontiguous.
(3) That the proposed town includes enough territory to allowfor reasonable growth in the foreseeable future.
(4) That a substantial majority of the property owners in theproposed town have agreed that at least six (6) of the followingmunicipal services should be provided on an adequate basis:
(A) Police protection.
(B) Fire protection.
(C) Street construction, maintenance, and lighting.
(D) Sanitary sewers.
(E) Storm sewers.
(F) Health protection.
(G) Parks and recreation.
(H) Schools and education.
(I) Planning, zoning, and subdivision control.
(J) One (1) or more utility services.
(K) Stream pollution control or water conservation.
(5) That the proposed town could finance the proposedmunicipal services with a reasonable tax rate, using the currentassessed valuation of properties as a basis for calculation.
(6) That incorporation is in the best interest of the territoryinvolved. This finding must include a consideration of:
(A) the expected growth and governmental needs of the areasurrounding the proposed town;
(B) the extent to which another unit can more adequately andeconomically provide essential services and functions; and
(C) the extent to which the incorporators are willing to enterinto agreements under IC 36-1-7 with the largest neighboringmunicipality, if that municipality has proposed suchagreements.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.195-1984,SEC.3.
IC 36-5-1-9
Denied petition; resubmittal
Sec. 9. A petition for incorporation that is denied may not beresubmitted within one (1) year after the date of final denial.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-10
Repealed
(Repealed by Acts 1980, P.L.2, SEC.20.)
IC 36-5-1-10.1
Adoption of ordinance incorporating town; required provisions to
conduct elections; territory not included in any district or in morethan one district; effective date of ordinance
Sec. 10.1. (a) Except as provided in subsection (g), if the countyexecutive makes the findings required by section 8 of this chapter, itmay adopt an ordinance incorporating the town. The ordinance must:
(1) provide that:
(A) all members of the town legislative body are to beelected at large (if the town would have a population of lessthan three thousand five hundred (3,500); or
(B) divide the town into not less than three (3) nor more thanseven (7) districts; and
(2) direct the county election board to conduct an election in thetown on the date of the next general or municipal election to beheld in any precincts in the county.
An election conducted under this section must comply with IC 3concerning town elections. If, on the date that an ordinance wasadopted under this section, absentee ballots for a general ormunicipal election have been delivered under IC 3-11-4-15 for voterswithin a precinct in the town, the election must be conducted on thedate of the next general or municipal election held in any precinctsin the county after the election for which absentee balloting is beingconducted. However, a primary election may not be conducted beforean election conducted under this section, regardless of the populationof the town.
(b) Districts established by an ordinance adopted under thissection must comply with IC 3-11-1.5.
(c) If any territory in the town is not included in one (1) of thedistricts established under this section, the territory is included in thedistrict that:
(1) is contiguous to that territory; and
(2) contains the least population of all districts contiguous tothat territory.
(d) If any territory in the town is included in more than one (1) ofthe districts established under this section, the territory is includedin the district that:
(1) is one (1) of the districts in which the territory is describedin the ordinance adopted under this section;
(2) is contiguous to that territory; and
(3) contains the least population of all districts contiguous tothat territory.
(e) Except as provided in subsection (f), an ordinance adoptedunder this section becomes effective when filed with:
(1) the office of the secretary of state; and
(2) the circuit court clerk of each county in which the town islocated.
(f) An ordinance incorporating a town under this section may nottake effect during the year preceding a year in which a federaldecennial census is conducted. An ordinance under this section thatwould otherwise take effect during the year preceding a year inwhich a federal decennial census is conducted takes effect January
1 of the year in which a federal decennial census is conducted.
(g) Proceedings to incorporate a town across county boundariesmust have the approval of the county executive of each county thatcontains a part of the proposed town. Each county that contains apart of the proposed town must adopt identical ordinances providingfor the incorporation of the town.
(h) Notwithstanding subsection (f) as that subsection existed onDecember 31, 2009, an ordinance that took effect January 2, 2010,because of the application of subsection (f), as that subsectionexisted on December 31, 2009, is instead considered to take effectJanuary 1, 2010, without the adoption of an ordinance or an amendedordinance or any other additional action being required.
As added by Acts 1980, P.L.2, SEC.16. Amended by P.L.5-1983,SEC.12; P.L.5-1986, SEC.54; P.L.13-1988, SEC.19; P.L.5-1989,SEC.106; P.L.7-1990, SEC.61; P.L.3-1993, SEC.268; P.L.3-1997,SEC.457; P.L.86-1999, SEC.2; P.L.123-2000, SEC.5; P.L.113-2010,SEC.123.
IC 36-5-1-11
Liability for existing indebtedness or other obligations; payment totownship
Sec. 11. (a) If the township in which a new town is incorporatedis indebted or has outstanding unpaid bonds or other obligations atthe time of the incorporation, the town is liable for and shall pay thatindebtedness in the same ratio as the assessed valuation of theproperty in the town bears to the assessed valuation of all propertyin the township, as shown by the most recent assessment for taxationbefore the incorporation, unless the assessed property within thetown is already liable for the indebtedness.
(b) The town shall pay its indebtedness under this section to thetownship executive. If the indebtedness consists of outstandingunpaid bonds or notes of the township, the payments to the townshipexecutive shall be made as the principal or interest on the bonds ornotes becomes due.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-11.5
Localities considered towns for all purposes
Sec. 11.5. A locality that:
(1) has elected town officers and has governed itself as a townfor at least ten (10) years preceding September 1, 1988; or
(2) has been incorporated under this chapter after August 31,1988;
is a town for all purposes unless the town has been dissolved underthis chapter or IC 36-5-1.1.
As added by P.L.1-1989, SEC.69.
IC 36-5-1-12
Proceedings to dissolve or change name; petition, signatures, andreasons; census Sec. 12. (a) Proceedings to dissolve a town may be institutedunder either this section or IC 36-5-1.1.
(b) A proceeding under this section may be instituted to eitherdissolve the town or change its name. The proceeding is instituted byfiling a petition with the town clerk. The petition must be signed byat least the number of the voters of the town required to place acandidate on the ballot under IC 3-8-6-3, must be verified by at leastone (1) of the petitioners, and must include the reasons for thedissolution or change of name.
(c) A census of all the voters of the town, taken within ten (10)days before the filing of the petition, must be filed with the petition.The person who prepared the census must, by affidavit attached tothe census, verify that the census is correct.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.342-1987,SEC.1; P.L.12-1995, SEC.129.
IC 36-5-1-13
Bond for costs and expenses
Sec. 13. A petition and census filed under section 12 of thischapter must be accompanied by a bond for costs and expenses,payable to and approved by the town legislative body. Thepetitioners shall pay all costs and expenses incurred under thischapter, including the expenses of an election, if their petition is notsuccessful.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-14
Notice of filing of petition, census, and day of hearing
Sec. 14. When a petition and census are filed under section 12 ofthis chapter, the town clerk shall give notice of the filing and of theday of a hearing on the petition and census, in the manner prescribedby IC 5-3-1.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-15
Hearing; withdrawal of petitioner's name; decision
Sec. 15. (a) On the date named in the notice given under section14 of this chapter, the town legislative body shall hear and consider:
(1) the petition and census; and
(2) all statements presented in favor of or in opposition togranting the petition.
The legislative body shall then decide whether there is sufficientcause to submit the question of dissolving the town or changing itsname to the voters of the town.
(b) A petitioner who wants to withdraw his name from the petitionmust do so before the legislative body makes its decision. Thelegislative body may not count names withdrawn from the petitionas part of the total required by section 12 of this chapter.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-16
Dissolution or change of name; date of election; notice
Sec. 16. If the town legislative body decides to submit thequestion of dissolving the town or changing its name to the voters ofthe town, it shall certify the question to the county election board.The election board shall fix the date of an election for that purpose.The town clerk shall give notice of the election in the mannerprescribed by IC 5-3-1.
As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1981,P.L.45, SEC.15; P.L.3-1987, SEC.559.
IC 36-5-1-17
Election; ballots; clerk's statement of votes cast
Sec. 17. (a) An election under section 16 of this chapter shall beheld in the town. The voters shall, by ballot, vote on the questionsubmitted to them. The question shall be placed on the ballot in theform prescribed by IC 3-10-9-4 and must state "Shall the town of___________________ dissolve?" or "Shall the town of_______________ change its name to ______________________?".
(b) Within four (4) days after the canvass of the vote by thecounty election board, the town clerk shall prepare and attest astatement of all the votes cast at the election, to be signed by themembers of the county election board and filed with:
(1) the clerk of the county in which the greatest percentage ofthe population of the town is located; and
(2) the office of the secretary of state.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.3-1987,SEC.560; P.L.5-1989, SEC.107; P.L.3-1997, SEC.458;P.L.123-2000, SEC.6.
IC 36-5-1-18
Number of votes and voters required; effective dates of change ofname and dissolution; disposition of property; validity of contracts
Sec. 18. (a) If at least two-thirds (2/3) of the votes cast in anelection under section 16 of this chapter are affirmative, and at leastfour-fifths (4/5) of all the voters listed in the census voted in theelection, the dissolution or change of name takes effect in the mannerprescribed by this section.
(b) A change of name takes effect thirty (30) days after the filingof the statement required by section 17 of this chapter.
(c) Except as provided in subsection (d), a dissolution takes effectsix (6) months after the filing of the statement required by section 17of this chapter. The property owned by the town after payment ofdebts and liabilities shall be disposed of in the manner chosen by amajority of the voters of the town at a special election for thatpurpose. Dissolution of a town does not affect the validity of acontract to which the town is a party.
(d) A dissolution under this chapter may not take effect during theyear preceding a year in which a federal decennial census isconducted. A dissolution that would otherwise take effect during the
year preceding a year in which a federal decennial census isconducted takes effect January 1 of the year in which a federaldecennial census is conducted.
(e) Notwithstanding subsection (d) as that subsection existed onDecember 31, 2009, a dissolution that took effect January 2, 2010,because of the application of subsection (d), as that subsectionexisted on December 31, 2009, is instead considered to take effectJanuary 1, 2010, without any additional action being required.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.5-1989,SEC.108; P.L.113-2010, SEC.124.
IC 36-5-1-19
Aggrieved persons; appeal; procedure
Sec. 19. (a) A person aggrieved by a decision made by the townlegislative body under section 15 of this chapter or by the result of anelection under section 16 of this chapter may, within thirty (30) days,appeal that decision or result to the circuit court for the county inwhich the town is located. The appeal is instituted by giving writtennotice to the town legislative body and filing with the town clerk abond in the sum of five hundred dollars ($500), with surety approvedby the legislative body. The bond must provide that the appeal willbe duly prosecuted and that the appellants will pay all costs if theappeal is decided against them.
(b) When an appeal is instituted, the town clerk shall file with theclerk of the circuit court a transcript of all proceedings in the case,together with all papers filed in the case. The town legislative bodymay not take further action in the case until the appeal is heard anddetermined.
(c) An appeal under this section shall be heard by the circuit courtwithout a jury. Change of venue from the judge may be granted, butchange of venue from the county may not be granted.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-20
Towns not functioning for ten years; hearing; findings; adoptionof ordinance or ordering dissolution
Sec. 20. (a) This section does not apply to a town described byIC 36-5-1-11.5.
(b) A town subject to this chapter may be dissolved if the countyelection board of the county in which the greatest percentage ofpopulation of the town is located conducts a public hearing and findsthat the town has not elected town officers or had a functioning towngovernment during the preceding ten (10) years.
(c) The county election board shall certify the board's findings tothe county executive, who may adopt an ordinance or (in a countysubject to IC 36-2-3.5) issue an order to dissolve the town.
As added by P.L.3-1993, SEC.269.