CHAPTER 36. BARRETT LAW FUNDING FOR COUNTIES AND MUNICIPALITIES
IC 36-9-36
Chapter 36. Barrett Law Funding for Counties and Municipalities
IC 36-9-36-1
Application of chapter
Sec. 1. This chapter applies to all units except townships.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-2
Authorized improvements
Sec. 2. (a) The following improvements may be made under thischapter by a county:
(1) Sanitary sewers and sanitary sewer tap-ins.
(2) Sidewalks.
(3) Curbs.
(4) Streets.
(5) Storm sewers.
(6) Lighting.
(7) Emergency warning systems.
(8) Any other structures necessary or useful for the collection,treatment, purification, and sanitary disposal of the liquidwaste, sewage, storm drainage, and other drainage of amunicipality.
(b) The following improvements may be made under this chapterby a municipality:
(1) Sidewalks.
(2) Curbs.
(3) Streets.
(4) Alleys.
(5) Paved public places.
(6) Lighting.
(7) A water main extension for a municipality that owns andoperates a water utility.
(8) Emergency warning systems.
As added by P.L.98-1993, SEC.7. Amended by P.L.31-2004, SEC.1;P.L.42-2006, SEC.1.
IC 36-9-36-3
Limitations on authorized improvements; location ofimprovement; water main extensions
Sec. 3. (a) The following apply to improvements made under thischapter by a county:
(1) An improvement may be made only in unincorporated areasthat contain residential or business buildings.
(2) An improvement may not be made on a tract of land that:
(A) consists of at least ten (10) acres and contains only one(1) building that is used for residential purposes; or
(B) is used solely for agricultural purposes.
(b) A water main extension made under this chapter by amunicipality may be made only within the corporate boundaries of
the municipality.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-4
Preliminary resolutions; cross-sections, plans, and specifications
Sec. 4. (a) If the works board of a unit wants to make animprovement under this chapter, the works board must first do thefollowing:
(1) Adopt a preliminary resolution for the improvement.
(2) Adopt and place on file cross-sections, general plans, andspecifications for the work at the time the preliminaryresolution is adopted.
(b) This subsection does not apply to a county. The cross-sections,plans, and specifications filed under subsection (a) must conform toany paving standards adopted by the works board, unless engineeringpractice justifies a different design.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-5
Estimate of costs; incidental, inspection, and engineering costs
Sec. 5. (a) If an improvement is to be paid for in whole or in partby special assessments levied against the property to be benefited bythe improvement, the works board must adopt and file an estimate ofthe cost of the public improvement.
(b) The estimate may include all incidental, inspection, andengineering costs caused by the proposed improvement. However,the estimate of the costs to be paid by special assessment may notinclude the following:
(1) Salaries and expenses of the necessary and regularlyemployed personnel of the engineering department of the unit.
(2) Ordinary operating costs of the department.
(c) If the works board finds that it is necessary to employadditional engineering services for a particular improvement, the costof the additional service actually performed in connection with theimprovement may be included in the estimate.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-6
Incidental, inspection, and engineering costs; inclusion onassessment roll
Sec. 6. (a) The incidental, inspection, and engineering costs thatare authorized by the preliminary resolution and included in theestimate may be added to the cost of an improvement and includedin the assessment roll in the aggregate amount to be apportioned andassessed against the benefited property.
(b) The amount of incidental, inspection, and engineering costsincluded in the assessment roll may not exceed the amount of theincidental, inspection, and engineering costs included in the estimate.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-7
Incidental, inspection, and engineering costs; inclusion incontracts; subrogation rights of contractor
Sec. 7. The following applies if the preliminary resolutionprovides for the inclusion and assessment of incidental, inspection,and engineering costs:
(1) The works board shall include in a contract for animprovement a provision that requires all incidental, inspection,and engineering costs to be advanced and paid by the contractor to the board, upon the final acceptance of the improvement,for payment by the board to persons entitled to the incidental,inspection, and engineering costs.
(2) The contractor is then subrogated to all rights of the unit andthose persons to all the incidental, inspection, and engineeringcosts subsequently included in and assessed upon theassessment roll.
(3) The costs belong to the contractor as a part of theassessments.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-8
Notice of hearing on preliminary resolution; publication; mailingto property owners
Sec. 8. (a) Notice of a hearing on the preliminary resolution shallbe published in accordance with IC 5-3-1. The notice must state thatthe works board has adopted the preliminary resolution and the timeand place at which the works board will do the following:
(1) Hear all interested persons.
(2) Decide whether the benefits to the property liable to beassessed for the improvement will equal the estimated cost ofthe improvement.
(b) A notice containing the information required under subsection(a) shall be sent to each property owner affected by the proposedimprovement. The mailing of the notice complies with thissubsection if the mailing is to owners as the owners appear in therecords of the assessor of the county in which the property is located.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-9
Estimate of maximum cost
Sec. 9. (a) At least ten (10) days before the date fixed for ahearing under section 8 of this chapter, the engineer of the unit shallfile with the works board an estimate of the maximum cost of theimprovement proposed by the works board.
(b) The estimate must include the following:
(1) The cost of the guarantee under section 25 of this chapter.
(2) The cost of the maintenance of the improvements for at leastthree (3) years.
(c) A unit may not enter into a contract under the preliminaryresolution if the contract exceeds the engineer's estimate filed under
subsection (a).
As added by P.L.98-1993, SEC.7.
IC 36-9-36-9.5
Assessments; installment payments
Sec. 9.5. (a) With respect to assessments imposed after June 30,2001, the works board shall establish a procedure to permit ownersof real property in the unit to elect whether to pay assessments in:
(1) ten (10), twenty (20), or thirty (30) annual installments; or
(2) a number of monthly installments that corresponds to ten(10), twenty (20), or thirty (30) annual installments.
(b) The works board shall establish the timing of the electionunder subsection (a) to permit the works board to structure thematurities of the principal of the bonds in a number of annual seriesthat is consistent with the installment periods elected by owners ofreal property under subsection (a).
(c) A person who elects to pay the person's assessment ininstallments under this section must, when directed by the worksboard, enter into a written agreement stating that in consideration ofthat privilege the person:
(1) will not make an objection to an illegality or irregularityregarding the assessment against the person's property; and
(2) will pay the assessment as required by law with specifiedinterest.
(d) The agreement under subsection (c) shall be filed in the officeof the disbursing officer.
(e) The interest rate specified for the installments of theassessment may be equal to or greater than the interest rate on bondsissued under section 44 of this chapter.
(f) An assessment of less than one hundred dollars ($100) may notbe paid in installments.
As added by P.L.62-2001, SEC.1.
IC 36-9-36-10
Hearing on preliminary resolution; determination of specialbenefits accruing to property
Sec. 10. (a) At the hearing specified in the notice under section 8of this chapter, the works board shall do the following:
(1) Hear interested persons.
(2) Decide whether the benefits that will accrue to the propertyliable to be assessed for the improvement will equal themaximum estimated cost of the improvement.
(b) If the works board finds that the benefits will not equal themaximum estimated cost of the improvement, the board shalldetermine the aggregate amount of special benefits that will accrueto the property liable to be assessed for the improvement.
(c) Except as provided in sections 13 and 14 of this chapter, theworks board's determination concerning the aggregate amount ofspecial benefits that will accrue to the property liable to be assessedfor the improvement is final and conclusive.As added by P.L.98-1993, SEC.7.
IC 36-9-36-11
Levy of special assessments; improvement cost as maximumamount of assessment; improvement cost payable by unit
Sec. 11. (a) The works board shall levy special assessments forthe amount determined under section 10 of this chapter if:
(1) the contract for the improvement is executed; and
(2) the improvement is made.
(b) The special assessments levied under this section may notexceed the cost of the improvement.
(c) If the amount determined under section 10 of this chapter isless than the contract price, the remainder of the cost of theimprovement is payable by the unit.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-12
Allowances against assessment and contract price
Sec. 12. (a) The works board shall make an allowance to theowner of any property if:
(1) an improvement exists in front of the property before theimprovement is ordered; and
(2) the improvement conforms to the general plan.
(b) An allowance under subsection (a) shall be made from theowner's assessment and from the total amount of the contract price.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-13
Confirmation, modification, or rescission of preliminary resolution
Sec. 13. (a) After the works board determines the amount ofspecial benefits that will accrue to the property liable to be assessedfor the improvement, the works board may do any of the following:
(1) Confirm the preliminary resolution.
(2) Modify the preliminary resolution.
(3) Rescind the preliminary resolution.
(b) Except as provided in section 14 of this chapter, thepreliminary resolution is final and conclusive on all parties if:
(1) the preliminary resolution is modified or confirmed underthis section; and
(2) the improvement is ordered.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-14
Remonstrances and appeals
Sec. 14. (a) A majority of the persons who own the property to beassessed for the improvement may remonstrate against theimprovement or take an appeal. The remonstrance or appeal must bemade not later than ten (10) days after the hearing under section 10of this chapter.
(b) If there is a remonstrance, the improvement may not be made
unless specifically ordered by an ordinance passed by a two-thirds(2/3) vote of the unit's legislative body. An ordinance under thissubsection must be passed not later than sixty (60) days after theremonstrance is made.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-15
Objections to final resolution; filing; bond; prior assessments
Sec. 15. (a) If the works board finally orders an improvement,forty percent (40%) of the persons who own property abutting theimprovement and who are subject to assessment may file writtenobjections with the board. The written objections must:
(1) state at least one (1) of the following:
(A) The improvement is not needed by the public.
(B) The cost of the proposed improvement would beexcessive considering the character and value of the propertyto be assessed.
(C) The cost of the proposed improvement will exceed thebenefits to the property to be assessed.
(D) The works board does not have the legal authority toorder the improvement.
(2) be filed not later than five (5) days after the making of thefinal order.
(b) If the works board does not abandon the proposedimprovement, the following shall, not later than five (5) days afterthe filing of the objections with the works board, file with the clerkof the circuit or superior court of the county a copy of the order ofimprovement and the objections:
(1) The auditor, in the case of a county.
(2) The clerk, in the case of a municipality.
(c) Objectors must file with their objections a bond with securityto the satisfaction of the court. The following apply to a bond filedunder this subsection:
(1) The bond shall be in a sum fixed by the court.
(2) The bond must be conditioned on the objectors paying all orany part of the costs of the hearing as the court may order.
(d) In considering an objection described in subsection (a)(1)(A),the court may at the hearing under section 16 of this chapter considerthe amount of the assessments made against the property for publicimprovement during the preceding five (5) years.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-16
Court hearing on objections to final resolution
Sec. 16. (a) The court shall set a hearing as early as possible, butnot later than twenty (20) days after the filing of the objections withthe court. All interested parties shall appear in court without furthernotice. The unit may not hold further proceedings concerning theimprovement until the matters presented by the objections are heardand determined by the court. The matters shall be heard and
determined by the court without a jury.
(b) The court shall hear the evidence on the date fixed undersubsection (a). The court may confirm the order of the works boardor sustain the objections. The order of the court is conclusive, and allsubsequent proceedings concerning the improvement must conformto the order.
(c) A special judge may be appointed if for any reason the regularjudge of the court cannot hear the objections within the twenty (20)day time limit established by subsection (a).
As added by P.L.98-1993, SEC.7.
IC 36-9-36-17
Construction or repair of sidewalks and curbs; notice to abuttingproperty owner of order requiring construction or repair
Sec. 17. (a) The works board may require the owners of abuttingproperty to construct or repair the owners' own sidewalks or curbs ifthe works board:
(1) desires to improve or repair any sidewalks or curbs in theunit; and
(2) adopts a final resolution to that effect.
(b) The works board must give notice of the order concerning theconstruction or repair to the abutting property owners in person or bymail. Mailing of notices to owners as the names of the owners appearon the assessor's books of the county in which the land is locatedcomplies with this requirement.
(c) A property owner has thirty (30) days from the date of thenotice to construct the sidewalks or curbs or make the repairs asrequired by the notice.
(d) If a property owner fails to comply with the order, the worksboard may have the sidewalk or curb constructed or repaired by anindependent contractor.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-18
Contracting by works board for construction or repair of sidewalkor curb
Sec. 18. (a) The works board may let a general contract for themaking or repairing of all sidewalks or curbs of a specified materialwithin the unit. The contract shall include an agreed price per squareyard for the sidewalk construction.
(b) If the contract is for work in a municipality, the contract mayalso specify the following:
(1) The price per cubic yard for excavation and filling.
(2) The price per lineal foot for curb.
(c) The letting of a contract under this section is governed by thestatutes regulating contractual authority of the unit.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-19
Levy and collection of assessments for construction or repair of
sidewalk or curb
Sec. 19. (a) Assessments for the construction or repair ofsidewalks or curbs shall be levied and collected according to thischapter.
(b) The entire cost of the sidewalk or curb improvements orrepairs that the board undertakes by one (1) resolution shall beassessed and apportioned against each lot or parcel of propertyabutting on the improvement in the proportion the improved linealfront footage of each lot or parcel of property bears to the entirelength of the improvement.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-20
Improvements on streets occupied by railroad tracks; procedure
Sec. 20. (a) This section does not apply to a county.
(b) If the track of a railroad, an interurban, or an interurban streetrailroad occupies part of a street that is ordered improved under thischapter, the works board may, on petition of the railroad, provide inthe plans and specifications for the improvement for a differentmaterial and plan of construction for the part of the street occupiedby the railroad.
(c) If the railroad is bound by contract to improve or pay the costof improving the part of the street occupied by the railroad, therailroad is entitled to construct all of that part of the improvement ifthe railroad does the following:
(1) Elects to do so by written notice filed as follows:
(A) With the works board or other department of the unithaving power to order the improvement.
(B) At any time before the adoption of the final resolution orordinance providing for the improvement.
(2) On request of the works board or other department of theunit, files with the board or other department a bond in theamount and with the surety required by the works board orother department. The bond must be conditioned on therailroad's improvement of that part of the street:
(A) according to the plans and specifications;
(B) within the required time; and
(C) to the satisfaction of the engineer of the unit in charge ofthe work.
(d) The works board may issue a written improvement orderrequiring a railroad, an interurban, or an interurban street railroad tocomply with IC 8-6-12.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-21
Roadway grading; assessment
Sec. 21. (a) This section does not apply to a county.
(b) The works board may grade the roadway of a street and assessthe cost of the grading against the property specially benefited.
(c) The works board may let the contract under the statutes
regulating contractual authority of units. The unit shall levy andcollect the assessments for the grading according to this chapter.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-22
Advertisement for bids; opening and consideration of bids
Sec. 22. (a) If the works board finally orders an improvement, theworks board shall advertise for bids for the work as required byIC 36-1-12.
(b) The advertisement must state the following:
(1) That on the date named, the unit will receive bids for theimprovement according to the resolution as modified orconfirmed.
(2) The part of the cost of the improvement, if any, that will bepaid by the unit.
(c) On the date named, all bids shall be publicly opened andconsidered.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-23
Bid bond or deposit
Sec. 23. (a) If the works board finally orders an improvement andhas advertised for bids, the works board shall require each bidder todeposit with the bidder's bid, at the bidder's option, either a bid bondor a certified check to ensure the execution of the contract.
(b) The bid bond or certified check must be equal to the greater ofthe following:
(1) An amount not less than two and one-half percent (2 1/2%)of the engineer's estimate of the cost of the improvement.
(2) One hundred dollars ($100).
(c) The following applies if a bidder elects to deposit a bid bond:
(1) The bond must be payable to the works board with sufficientsureties.
(2) The bond must be conditioned upon the bidder's executionof a contract in accordance with the bidder's bid if accepted bythe works board.
(3) The bond must provide for forfeiture of the amount of thebond upon the bidder's failure to execute the contract inaccordance with the bidder's bid.
(d) The works board shall do the following:
(1) Return all checks and bonds submitted by unsuccessfulbidders.
(2) Return a successful bidder's check or bond when the bidderenters into a contract with the works board.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-24
Contracts; scope; actions to enjoin performance
Sec. 24. (a) The contract for an improvement must be for theentire improvement. (b) After the execution of a contract for an improvement, thevalidity of the contract may be questioned only in an action to enjointhe performance of the contract. This action must be brought:
(1) before the actual commencement of work under the contract,for an improvement by a county; or
(2) before the later of the following, for an improvement by amunicipality:
(A) The actual commencement of work under the contract.
(B) Not later than ten (10) days after the execution of thecontract.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-25
Contractor's guarantee
Sec. 25. (a) A contractor for an improvement must guarantee thecontractor's workmanship and all materials used in the work.
(b) The guarantee required under subsection (a) must be in thefollowing form:
"The contractor warrants the contractor's workmanship and allmaterials used in the work and agrees that during the guaranteeperiod specified the contractor will at the contractor's ownexpense make all repairs that may become necessary by reasonof improper workmanship or defective materials. Themaintenance obligation, however, does not include repair of anydamage resulting from any force or circumstance beyond thecontrol of the contractor, nor is the contractor a guarantor of theplans and specifications furnished by the (county, city, ortown).".
As added by P.L.98-1993, SEC.7.
IC 36-9-36-26
Repairs by contractor
Sec. 26. (a) If repairs become necessary, the unit must givewritten notice to the contractor to make the repairs. If the contractorfails to begin the repairs not later than thirty (30) days after thenotice is received, the unit may do the following:
(1) Make the repairs using the unit's own employees or anindependent contractor.
(2) Recover from the contractor and the contractor's sureties thereasonable cost of the repairs and the cost of the supervisionand inspection of the repairs.
(b) At the expiration of the guarantee period, the unit has sixty(60) days in which to notify the contractor of any necessary repairs.
(c) This subsection does not apply to a county. If the repairsnecessary to be made at the expiration of the guarantee periodamount to more than one-half (1/2) the surface of one (1) block, theentire pavement of the block shall be taken up and relaid inaccordance with the original specifications.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-27
Monthly payments to contractor
Sec. 27. (a) A contractor for an improvement is entitled tomonthly estimates of the work done during each month. Theestimates shall be made by the engineer of the unit and approved bythe works board.
(b) The works board shall issue to the contractor certificates foreighty-five percent (85%) of the amount due the contractor by theestimates. The contractor is entitled to receive the amounts named inthe certificates in cash or improvement bonds to be collected orissued by the unit. The certificates are negotiable instruments.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-28
Completed improvements; acceptance; cost estimates
Sec. 28. (a) An improvement that is completed according tocontract must be accepted by the works board.
(b) Upon the completion of an improvement according to contract,the cost of the improvement shall be estimated according to the entirelength of the improvement.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-29
Assessments; abutting lands or lots; street and alley intersections
Sec. 29. (a) The total cost of an improvement as determined undersection 28(b) of this chapter, except for one-half (1/2) of the cost ofstreet and alley intersections, shall be assessed on the abutting landor lots in the manner prescribed by this chapter.
(b) The remaining one-half (1/2) of the cost of street and alleyintersections shall be assessed on the land or lots abutting on thestreets or alleys that intersect the improved street or alley.
(c) Land and lots may be assessed for the following distances:
(1) One (1) block in either direction along the intersecting streetor alley if the intersecting street or alley crosses the improvedstreet or alley.
(2) One (1) block along the intersecting street or alley if theintersecting street or alley enters but does not cross theimproved street or alley.
(d) For purposes of this section, the distance from the intersectionof:
(1) a street or an alley improved under this chapter; and
(2) another street or alley;
along the other street or alley to the street line of the next intersectingstreet or alley is considered one (1) block.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-30
Assessments; basis; back lots; platted subdivisions
Sec. 30. (a) Lots, parcels, and tracts of land bordering on animprovement shall be assessed on the basis set forth in this chapter,
without regard to the depth of the lots, parcels, or tracts back fromthe front line of the improvement.
(b) After the final hearing before the works board concerning theactual benefits to abutting and adjacent property, the works boardmay assess other property behind the first lot if the followingconditions are met:
(1) The back lot is within one hundred fifty (150) feet of theline of the improvement.
(2) The works board finds at the hearing that properties behindthe abutting lot and within one hundred fifty (150) feet of theimprovement are specially benefited by the improvement.
(c) Land and lots assessed under subsection (b) shall be assessedonly in the amount the lands or lots are specially benefited by theimprovement.
(d) Lots or land adjacent to the improvement are liable for thepayment of the assessment as set forth on the final assessment roll.
(e) This subsection applies only to counties. If an improvement isconstructed within a platted subdivision, the works board may assessall or part of the lots in that subdivision or any other plattedsubdivision connected to that platted subdivision by theimprovement.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-31
Preparation of assessment roll
Sec. 31. (a) As soon as a contract for an improvement has beencompleted, the works board shall have an assessment roll preparedfor the property abutting on and adjacent to the improvement. Theproperty abutting on and adjacent to the improvement is liable toassessment under this chapter.
(b) The assessment roll must include the following:
(1) The name of the owner of each parcel of property.
(2) A description of each parcel of property.
(3) The total assessment, if any, against each parcel of property.The total assessment must be listed opposite each name anddescription.
(c) A mistake in the name of the owner or the description ofproperty does not void the assessment or lien against the property.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-32
Presumptive finality of assessments; publication of notice
Sec. 32. (a) The following apply to the assessment indicatedagainst each lot, tract, or parcel of land on the assessment roll:
(1) The assessment is presumed to be the special benefit to thelot, parcel, or tract of land.
(2) The assessment is the final and conclusive assessmentunless the assessment is changed under section 33 of thischapter.
(b) Immediately after the assessment roll is completed and filed,
the works board shall publish a notice according to IC 5-3-1. Thenotice must do the following:
(1) Describe the general character of the improvement.
(2) State that the assessment roll, with the names of owners anddescriptions of property subject to assessment and the amountsof any presumptive assessments, is on file and may be inspectedat the works board's office.
(3) Name a time and date after the date of the last publicationon which the works board will do the following at the worksboard's office:
(A) Receive and hear remonstrances against the amountsassessed on the roll.
(B) Determine whether the lots or tracts of land have been orwill be benefited by the improvement in the followingamounts:
(i) The amounts listed on the assessment roll.
(ii) Amounts greater or lesser than the amounts listed onthe assessment roll.
(iii) Any amount at all.
(c) This subsection applies only to counties. The notice must alsodescribe the platted subdivision or the parts of the subdivision onwhich there is property that is benefited and liable for assessment.
(d) This subsection applies only to municipalities. The noticemust also describe the following:
(1) The public way or public place on which the improvementhas been made.
(2) The terminals of the improvement.
(3) The public ways:
(A) that:
(i) intersect the improvement; or
(ii) are parallel to the improvement and within onehundred fifty (150) feet of the improvement; and
(B) on which there is property that is benefited and liable forassessment.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-33
Remonstrance hearings; final determination of assessments
Sec. 33. (a) On the date fixed under section 32 of this chapter, theworks board shall receive and hear all remonstrances from theowners of property described in the notice or the representatives ofthe owners.
(b) After the hearing, the works board shall sustain or modify thepresumptive assessment as indicated on the assessment roll byconfirming, increasing, or reducing the presumptive assessmentagainst all or part of the property described in the roll. The worksboard's decision must be based on the works board's findingsconcerning the special benefits that the property has received or willreceive on account of the improvement.
(c) If any property liable for assessment is initially omitted from
the assessment roll or a presumptive assessment has not been madeagainst the property, the works board may place on the assessmentroll any special benefit that the omitted property has sustained or willsustain by the improvement.
(d) The aggregate amount of assessments approved by the worksboard under this section may not exceed the cost of the improvementand must be equal to the aggregate amount of special benefitsdetermined by the board under section 10 of this chapter.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-34
Completion and delivery of assessment roll; appeals
Sec. 34. (a) The works board shall complete the assessment rolland render the works board's decision by modifying or confirmingthe roll. The assessment roll shall show the total amount of specialbenefits opposite each name and a description of the property on theroll. When completed, the assessment roll shall be delivered to thefollowing:
(1) The county assessor, for an improvement by a county.
(2) The municipal fiscal officer, for an improvement by amunicipality.
(b) The decision of the works board as to all benefits is final andconclusive on all parties. However, an owner of an assessed lot orparcel of land who has filed a written remonstrance with the boardmay appeal to the circuit or superior court for the county.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-35
Delivery of primary assessment roll; payment of assessments todisbursing officer
Sec. 35. (a) The works board shall deliver a certified copy of theassessment roll completed under section 34 of this chapter to thedisbursing officer of the unit after the works board:
(1) approves and accepts the entire work under any contract;and
(2) allows a final estimate.
(b) The duplicate assessment roll, to be known as the primaryassessment roll, must show the following:
(1) The amount due on each piece of property if paid in cashwithin the time limit.
(2) The amount of waivers filed.
(c) The primary assessment roll must also have an appropriatecolumn in which payments may be properly credited by thedisbursing officer.
(d) This subsection does not apply to a county. All assessments,regardless of whether the assessments are payable in installments, arepayable to the disbursing officer. The disbursing officer shall receivethe payments, give proper receipts, and enter the proper credit.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-36
Assessment installments; notice when due
Sec. 36. (a) Upon receipt of the primary assessment roll, thedisbursing officer shall by mail notify each affected person of theamount of the assessment against the person's property.
(b) The notice must state when the assessment is due, or when theassessment installments are due.
As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.2.
IC 36-9-36-37
Cash payment of assessments; interest on delinquencies
Sec. 37. (a) Except as provided in section 38 of this chapter, theentire assessment is payable in cash without interest not later thanthirty (30) days after the approval of the assessment roll by the worksboard if an agreement has not been signed and filed under section 36of this chapter.
(b) If the assessment is not paid when due, the total assessmentbecomes delinquent and bears interest at the rate prescribed byIC 6-1.1-37-9(b) per year from the date of the final acceptance of thecompleted improvement by the works board.
As added by P.L.98-1993, SEC.7. Amended by P.L.172-1994, SEC.1;P.L.67-2006, SEC.14; P.L.113-2010, SEC.154.
IC 36-9-36-38
Appeal of assessment; payment by property owner following courtcertification
Sec. 38. (a) If a property owner appeals the assessment madeagainst the owner's property to the circuit court or superior court, theclerk of the court shall certify the judgment of the court to the unit'sdisbursing officer. The disbursing officer shall immediately notifythe property owner of the amount of the assessment fixed by thecourt.
(b) The property owner has thirty (30) days from the date thenotice is sent to:
(1) pay the assessment in cash; or
(2) elect to pay the assessment in installments by entering intoan agreement under section 36 of this chapter.
(c) The unit shall then issue bonds in the amount of theassessment fixed by the court. The bonds must bear the date of thefinal acceptance of the work.
(d) The assessment bears interest as follows:
(1) From the date of the final acceptance of the work.
(2) At a specified rate per year that is not less than the interestrate specified for installments under section 36 of this chapter.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-39
Appeal of assessment; payment of part ordered to be assessedagainst unit
Sec. 39. The following applies to any part of the assessment that
the court orders to be assessed against the unit:
(1) The assessment bears interest:
(A) from the date of the final acceptance of the work; and
(B) at a specified rate per year that is not less than theinterest rate specified for installments under section 36 ofthis chapter.
(2) The assessment may be paid by the unit in any mannerprovided by law for paying other assessments against the unitfor similar work.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-40
Assessment liens
Sec. 40. (a) The unit has a lien against each parcel of real propertythat is assessed for:
(1) the construction, maintenance, or repair of an improvement;or
(2) the taking of lands for any purpose of the unit.
(b) The lien is established when the assessments are certified tothe disbursing officer for collection. The unit may bring a foreclosureaction to enforce the lien against a person who defaults in paymentof the assessment.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-41
Installment payment procedure; proceeds constituting special fundfor payment of improvement; diversion prohibited
Sec. 41. (a) The disbursing officer of the unit shall do thefollowing:
(1) Receive the payment of assessment installments.
(2) Keep all accounts and give proper vouchers for the paymentof assessment installments.
(b) Proceeds arising from assessments for the payment of aparticular improvement may not be diverted to the payment of anyother improvement.
(c) The proceeds from assessments for the payment of a particularimprovement constitute a separate special fund for the following:
(1) The payment of contractors for the particular work, upon theallowance of estimates by the works board.
(2) The security and payment of any bonds issued inanticipation of the collection of the assessments for theimprovement, including debt service reserves to secure thepayment of the bonds.
(3) The payment of expenses incurred by the unit in performingthe unit's duties under this chapter, IC 36-9-37, IC 36-9-38, andIC 36-9-39 (or under IC 36-9-18 through IC 36-9-21, before therepeal of those provisions in 1993), including expenses, duties,and costs associated with the issuance, sale, or payment of thebonds.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-42
Notice; payments to bond owner; process collectable by fiscalofficer
Sec. 42. If a bond owner receives a payment of interest orprincipal, or both, that was to have been collected under this chapter(or under IC 36-9-18 before its repeal in 1993) by the fiscal officerof a unit, the bond owner shall notify the fiscal officer of thepayment.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-43
Delinquent installments; acceleration; foreclosure of lien; notice ofdelinquency
Sec. 43. (a) Failure to pay an installment of principal or interestwhen the installment is due makes all installments of principal yetunpaid due and payable immediately, unless the unpaid installmentof principal or interest is paid within the grace period provided.
(b) If the unit fails to collect an unpaid assessment or installmentwhen due, liability does not accrue against the unit. However, theowner of the bonds or the person to whom the amount of the unpaidassessment for the performance of the work is due and owing isentitled to proceed in court to do the following:
(1) Enforce the lien or the unpaid assessment.
(2) Recover interest, costs, and reasonable attorney's fees.
(3) Have the proceeds of sale applied to the owner's or person'sclaim.
(c) If a person defaults in the payment of an installment ofprincipal or interest, the disbursing officer shall mail a notice of thedelinquency to the person in accordance with IC 36-9-37 regardlessof whether a waiver has been signed. A notice mailed to the personin whose name the lands are assessed, addressed to the person withinthe unit, is sufficient notice. The person is not liable for attorney'sfees unless an action is actually brought on the assessment.
(d) An action to collect an unpaid assessment may not be broughtuntil the notice required by subsection (c) has been given.
(e) An action for foreclosure must be commenced not more thanfive (5) years after the cause of action accrues.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-44
Bonds in anticipation of assessment proceeds; authorization
Sec. 44. (a) The works board may issue bonds in anticipation ofthe collection of the assessments for an improvement. Except asprovided in subsections (b) and (c), the bonds shall be issued andsold in the manner prescribed for other bonds of the unit. A unitissuing bonds under this section is not required to attach coupons tothe bonds.
(b) The works board may provide for the issuance of the bondsdirectly to the contractor in the works board's preliminary resolutionfor the improvement. If direct issuance is authorized by the
resolution, the disbursing officer shall issue the bonds directly to thecontractor.
(c) The works board may by resolution choose to:
(1) sell the bonds by negotiated private sale to a financialinstitution; and
(2) remit the proceeds of the sale to the contractor.
(d) The following applies after the issuance of bonds:
(1) An action to enjoin the collection of an assessment or tochallenge the validity of the bonds or the sale of the bonds maynot be brought.
(2) The validity of the assessment may not be questioned.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-45
Bonds; date; tax exemption
Sec. 45. (a) This section applies only to municipalities.
(b) Bonds issued in anticipation of the collection of assessmentsfor an improvement must bear the date of the completion of theimprovement under the contract and the acceptance of theimprovement by the works board. The bonds draw interest from thatdate.
(c) The bonds are exempt from taxation for all purposes.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-46
Bonds; maturation; interest rate
Sec. 46. (a) The works board may provide in the preliminaryresolution that the bonds issued in anticipation of the collection ofthe assessments shall be issued so as to mature not less than ten (10)years and not more than thirty (30) years from the date of issuance.
(b) The interest on the bonds shall be payable semiannually fromthe date of issue. The works board shall fix the rate of interest on thebonds issued.
(c) Bonds issued in the manner described in subsection (a) shallmature serially, so that some bonds mature each year until the finalmaturity date of the issue is reached. The terms of the bonds mayallow early redemption of the bonds in the event of and to the extentof prepayment of the assessments in anticipation of which the bondswere issued.
(d) The works board must issue the bonds to mature as providedunder subsection (c) if a petition requesting the bonds to mature inthat manner is filed by a majority of the resident property ownersaffected by the improvement not later than sixteen (16) days after theresolution is first published.
As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.3.
IC 36-9-36-47
Transfer of assessment liens to bond owners
Sec. 47. (a) Bonds issued in anticipation of the collection ofassessments convey and transfer to the owner of the bonds all
interests in the assessments and liens upon the respective lots orparcels of land.
(b) The liens stand as security for the bonds and interest until thebonds and interest are paid. A bond owner has full power to enforcethe lien by foreclosure in court as provided in this chapter if the bondor interest is not paid when presented to the disbursing officer.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-48
Bond owners; foreclosure actions; procedure
Sec. 48. (a) Except as provided in subsection (b), sales to satisfythe bonds and interest shall be made as provided in this chapter forsales upon judgments or decrees foreclosing liens for assessmentslevied for improvements.
(b) The first bondholder who brings a foreclosure action againstthe property or any part of the property is entitled to have theproceeds of the action applied pro rata to the payment of thatbondholder's own bonds and of bonds held by others.
(c) Only one (1) foreclosure action may be brought against one (1)lot or parcel of land. However, all lots or parcels of land againstwhich the assessments are in default may be joined in one (1)proceeding.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-49
Sale of property following foreclosure action; amount
Sec. 49. (a) The property upon which the assessment is placedmay not be sold for less than the amount of the assessment, attorney'sfees, and costs. The proceeds of the sale shall be distributed asprovided in this chapter.
(b) If the property sells for an amount greater than the amountnecessary to pay the principal, interest, attorney's fees, and costs, theexcess amount shall be paid to the property owner or party lawfullyentitled to that excess amount.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-50
Negotiability of bonds
Sec. 50. (a) The bonds issued in anticipation of the collection ofassessments are negotiable instruments and are free from all defensesby property owners.
(b) It is not necessary that the bonds include language describingthe actions taken in ordering the improvement or directing theassessment. The bonds may instead include a general reference tothis chapter.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-51
Foreclosure actions by contractors
Sec. 51. (a) This section applies to a contractor that is entitled to
enforce liens or assessments.
(b) The contractor or the contractor's assignee may bring an actionagainst a person who has defaulted in payment of an assessment toforeclose the lien established by the assessment.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-52
Foreclosure actions; complaint; proof
Sec. 52. (a) The complaint for a foreclosure action under thischapter need not set forth the specific proceedings leading to thefinal assessment. However, the complaint must include the followinginformation:
(1) The date on which the contract for the improvement wasfinally let.
(2) The name of the improvement.
(3) The amount and date of the assessment.
(4) A statement that the assessment is unpaid.
(5) A description of the property on which the assessment waslevied.
(b) At the trial of a foreclosure action, the plaintiff is not requiredto introduce proof of the proceedings before the works board leadingto the final assessment. However, the plaintiff must introduce thefinal assessment roll or a copy of the final assessment roll. The finalassessment roll or the copy of the final assessment roll must beproperly certified.
(c) The final assessment roll or the copy is presumptive evidencethat the works board took all actions required to be taken in makingthe final assessment.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-53
Foreclosure actions; defenses
Sec. 53. (a) A defense to a foreclosure action may not be based onany of the following:
(1) Any irregularity in the proceedings making, ordering, ordirecting the assessment.
(2) The propriety or expediency of any improvement.
(b) A property owner may not raise any defense to a foreclosureaction if the owner has done the following:
(1) Exercised the option to pay the owner's assessment ininstallments.
(2) Signed a waiver.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-54
Foreclosure actions; amount of recovery; sale procedure
Sec. 54. (a) In a foreclosure action brought under this chapter, theplaintiff is entitled to recover the amount of the assessment, principaland interest, and reasonable attorney's fees. The court shall order thesale to be made without relief from valuation or appraisement law. (b) The county sheriff shall sell the property in the same way thatlands are sold on execution. The sheriff shall, not later than five (5)days after the sale, execute a certificate of sale to the purchaser. Thecertificate of sale vests title in the purchaser when the certificate ofsale is delivered. Title vested by a certificate of sale is subject onlyto the right to redeem under section 55 of this chapter.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-55
Foreclosure sales; irregularities; redemption
Sec. 55. (a) An irregularity or error in making a foreclosure saleunder this chapter does not make the sale ineffective, unless theirregularity or error substantially prejudiced the property owner.
(b) A property owner has two (2) years from the date of sale inwhich to redeem the owner's property. The property owner mayredeem the owner's property by paying the principal, interest, andcosts of the judgment, plus interest on the principal, interest, andcosts at the rate prescribed by IC 6-1.1-37-9(b).
(c) If the property is not redeemed, the sheriff shall execute a deedto the purchaser. The deed relates back to the final letting of thecontract for the improvement and is superior to all liens, claims, andinterests, except liens for taxes.
As added by P.L.98-1993, SEC.7. Amended by P.L.67-2006, SEC.15;P.L.113-2010, SEC.155.
IC 36-9-36-56
Foreclosure actions; parties; appearances; disposition of proceeds
Sec. 56. (a) In a foreclosure action under this chapter, other thana foreclosure action in which the unit is the plaintiff, the plaintiffmust do the following:
(1) Name the officer who has custody of the improvement fundsof the unit as a party defendant.
(2) Name that officer as custodian of the improvementassessment fund of the unit.
(b) The officer described in subsection (a) shall then notify theattorney of the unit to appear in the action.
(c) The fiscal officer of the unit shall do the following:
(1) Trace the proceeds of the foreclosure so that proceedsarising from assessments for the improvement of a particularproject are not diverted to the payment of any otherimprovement.
(2) Ensure that in each case the judgment proceeds constitute aspecial fund for the payment of contractors or bondholders forthe particular work.
(d) The judgment proceeds shall be allocated to the proper publicimprovement fund for pro rata distribution to the bondholders orcontractors who are entitled to those proceeds.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-57 Foreclosure actions; payment of judgment; costs and attorney'sfees; decree
Sec. 57. (a) The court costs and the attorney's fees allowed inforeclosure actions shall be paid directly to the clerk of the court tosatisfy that part of a judgment. The remainder of the judgment shallbe paid directly to the disbursing officer for the benefit of the specialimprovement fund of the department that is entitled to theforeclosure proceeds.
(b) The disbursing officer shall do the following:
(1) Enter the payment under subsection (a) on the records andduplicates.
(2) Satisfy the judgme