IC 36-9-28
Chapter 28. Certain Watercourse, Levee, Sewer, and Drain
Improvements
IC 36-9-28-1 Application of chapter
Sec. 1. This chapter applies to all municipalities other than a
consolidated city. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-2 Order to construct or improve; issuance; drawings and specifications for
project
Sec. 2. A municipal works board acting under this chapter may
issue an order to construct or improve a levee, change or improve a
natural or artificial watercourse, drain a section of land, or construct
a sewer or drain, if:
(1) the proposed project is designed to benefit land inside and
outside the corporate boundaries of the municipality; and
(2) the works board finds that the proposed project is necessary
for the welfare of all or part of the municipality.
If the works board issues such an order, it shall have the necessary
drawings and specifications for the project prepared and filed in its
office. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-3 Order to construct or improve; considerations; filing of record of
proceedings
Sec. 3. (a) In making an order for a project under this chapter, the
municipal works board shall consider whether the project will
beneficially or injuriously affect any property outside the corporate
boundaries of the municipality.
(b) If the works board finds that the proposed project will
injuriously or beneficially affect property outside the corporate
boundaries of the municipality, it shall file with the circuit court for
the county a record of all the proceedings concerning the project,
including:
(1) a list of all persons whose property will be affected, as
determined from the records of the county at the time the works
board passes the order for the project; and
(2) a description of the boundaries of the affected area.
The proceedings shall be docketed in the circuit court in the same
manner as other civil actions, and the court shall fix a time when the
proceedings shall be heard.
(c) If the works board finds that the proposed project will not
affect property outside the corporate boundaries of the municipality,
it may not proceed with the project under this chapter. As added by Acts 1981, P.L.309, SEC.104. IC 36-9-28-4 Notice of hearing; answer; judgment
Sec. 4. (a) After the record is filed under section 3 of this chapter,
the clerk of the circuit court shall give notice to all persons who are
mentioned in the record or who will be affected by the proposed
project. The notice must:
(1) be published in accordance with IC 5-3-1;
(2) name a date on which the court will hold a hearing on the
proposed project; and
(3) describe the boundaries of the area affected by the proposed
project.
(b) At the hearing, which may be adjourned from time to time,
persons who own property in the area affected by the proposed
project may file an answer showing why the works board should not
proceed with the project. The court shall hear the evidence and
determine whether the works board should proceed.
(c) If the court finds that the works board should proceed with the
project substantially as described in the record, it shall enter
judgment accordingly. Otherwise, the court shall dismiss the
proceedings.
(d) The court's judgment under this section may not be appealed. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.45, SEC.85.
IC 36-9-28-5 Control and supervision of work; letting of contract; reporting; filing
Sec. 5. If, under section 4 of this chapter, the court finds that the
municipal works board should proceed with a proposed project, the
works board shall control and supervise work for the project. The
works board shall:
(1) advertise for bids for the work; and
(2) let a contract or contracts for the work, subject to financing.
The works board shall report the letting of the contract or contracts
to the court, together with an estimate of other project costs, to be
filed with the proceedings concerning the project. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-6 Board of assessors; duties; appeals from assessments; hearings; roll of
property owners; corrections; actions to contest; costs
Sec. 6. (a) After the letting of a contract or contracts under section
5 of this chapter, the circuit court shall appoint three (3) competent,
disinterested residents of the county to serve as the board of
assessors for the project. The assessors shall take an oath to honestly
and faithfully perform their duties as assessors.
(b) The board of assessors shall:
(1) inspect the line of the proposed project and the property
within the area affected by the project;
(2) estimate and assess the benefits against each piece of
property to be benefited by the project;
(3) award damages to each piece of property to be injuriously
affected by the project; and
(4) prepare and file with the clerk of the circuit court an
assessment roll of the assessment against each property owner.
The clerk shall then give written notice of the assessment and the
right to appeal by certified mail or personal service upon each of the
property owners being assessed as his name and address appears on
the tax records of the county. The clerk shall make and file in his
records an affidavit of the giving of the notice.
(c) Appeals from the assessments may be made to the circuit court
within fifteen (15) days after the time of the filing of the clerk's
affidavit of service. The appeals shall be conducted in the manner
directed by the circuit court.
(d) In hearing appeals of assessments, the board of assessors shall:
(1) sit at the times and places directed by the court;
(2) administer oaths;
(3) send for persons and papers; and
(4) hear testimony concerning the question of benefits and
damages to be assessed.
The hearing may be continued from day to day.
(e) After hearing any appeals, the board of assessors shall finalize
the roll of property owners whose property will be benefited or
injured by the project, including:
(1) a description of the property affected; and
(2) the amount of the benefits or damages to the property, listed
opposite each description;
and shall file it with the circuit court.
(f) The board of assessors may correct a mistake or supply an
omission in the roll at any time. Proceedings under this chapter are
not defective or void because of an omission or defect in the roll, and
a property owner may not object to the proceedings on the ground of
any mistake in or omission of:
(1) the name of any person; or
(2) the description of any property.
The circuit court may call the board together to make any necessary
additions or corrections to the roll.
(g) An action to contest the assessments and the acts of the board
of assessors must be commenced within:
(1) thirty (30) days after the affidavit of service by the clerk of
the circuit court; or
(2) if an appeal is taken, within thirty (30) days after the filing
of the final report with the court.
(h) The circuit court shall make reasonable allowances to the
board of assessors and for attorney's fees, and shall tax these
allowances with the other costs of the proceedings. The allowances
are payable out of money available from bond proceeds, assessments,
or the municipal treasury. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-7 Application of other assessment statutes
Sec. 7. Except as otherwise provided by this chapter, the statutes
concerning street and sewer improvement assessments apply to
assessments made under this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-8 Acquisition of real or personal property required for project;
condemnation; purchase
Sec. 8. If any real or personal property inside or outside the
municipality is required for a project under this chapter:
(1) it may be condemned and paid for in the manner provided
by law; or
(2) the municipal works board may purchase and take a
conveyance for it for the use and benefit of the municipality, in
the manner prescribed for other purchases by the municipality.
All further proceedings concerning a project under this chapter must
be performed in accordance with the statutes governing public
improvements in municipalities. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-9 Bonds; issuance; payments; financing agreement; public sale
Sec. 9. (a) If the financing for a project under this chapter is to be
provided by the federal government, one (1) or more bonds may be
issued at any time after the filing of the assessment roll with the
circuit court under section 6 of this chapter.
(b) Bonds issued under this section are payable solely from:
(1) the assessments made or to be made against the property
benefited; or
(2) the money appropriated for that purpose by the
municipality;
and are not a general obligation of the municipality.
(c) Notwithstanding any other law, a financing agreement with the
federal government may provide that a municipal ordinance may
determine:
(1) the interest rate or rates on the bonds and the assessments;
(2) the time or times of maturities or of principal and
assessment payments;
(3) the terms, if any, for redemption of the bonds;
(4) the medium and the place or places for payment of the
bonds, including payment by mail to an owner of any fully
registered bond; and
(5) any other necessary terms and conditions.
(d) Bonds issued under this section need not be advertised for
public sale. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-10 Completion and acceptance of project; certification; benefits assessed
Sec. 10. (a) When the municipal works board finally accepts a
project under this chapter, it shall certify the completion and
acceptance of the project to the circuit court. The court shall then
direct the clerk of the court to make out two (2) copies of a list
showing:
(1) the owners of the property affected by the project;
(2) a description of each parcel of property affected by the
project; and
(3) the benefits and damages assessed upon or in favor of each
parcel.
The clerk shall certify the copies under the seal of the court, and
shall deliver one (1) copy to the municipal fiscal officer and one (1)
copy to the county treasurer.
(b) If the works board finds that the project is necessary for the
public welfare of the municipality and that the benefits assessed will
fall below the amount required to pay the damages awarded and to
pay for the project, the board shall order that any balance required
for this purpose shall be paid by the municipality out of the general
fund or out of any other available money. If the works board finds
that the benefits assessed exceed the amount of financing needed,
each assessment shall be reduced on a pro rata basis. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-11 Board of directors; duties; petition for appointment; notice of hearing;
appearance; judgment
Sec. 11. (a) After a project is completed and approved under this
chapter, the care, management, control, repair, and maintenance of
the project may be placed under the jurisdiction of a board of
directors appointed under this section.
(b) A petition requesting the appointment of a board of directors
for the project may be filed with the clerk of the circuit court. The
petition may be signed by:
(1) the municipal works board, if all or part of the municipality
is located in the area affected by the project;
(2) the executive and legislative body of a township, if all or
part of the township is located in the area affected by the
project;
(3) any twenty-five (25) landowners who reside in a
municipality and whose lands are located in the area affected by
the improvement; or
(4) any twenty-five (25) landowners who do not reside in a
municipality and whose lands are located in the area affected by
the project.
The petition shall be docketed as a pending action, and the court
shall fix a time when the petition shall be heard.
(c) After the petition is filed and docketed, the clerk of the circuit
court shall give notice of the hearing by publication in accordance
with IC 5-3-1. The notice shall be addressed to all persons who were
originally assessed for the construction of the project.
(d) Any person owning land located in the area affected by the
project may appear at the hearing and be heard, either in person or by
his attorney.
(e) If the circuit court determines that a board of directors should
be appointed and assessments should be imposed for the care,
management, control, repair, and maintenance of the project, the
court shall enter a judgment accordingly. If the court enters such a
judgment, two (2) members of the board of directors shall be
appointed by the county executive and one (1) member of the board
of directors shall be appointed by the municipal executive. The three
(3) appointed persons must be qualified under section 12 of this
chapter.
(f) If the court determines that a board of directors should not be
appointed, it shall dismiss the petition. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.45, SEC.86; P.L.7-1983, SEC.40.
IC 36-9-28-12 Board of directors; qualifications; terms; vacancy
Sec. 12. (a) A board of directors appointed under this chapter
consists of three (3) directors, who must own land assessed for the
construction of the project. One (1) of the directors must be a
resident of the municipality affected by the improvement, and two
(2) of the directors must be residents of an unincorporated area.
(b) One (1) of the original directors shall be appointed for a term
of one (1) year, one (1) for a term of two (2) years, and one (1) for a
term of three (3) years. After the expiration of the original terms, all
directors shall be appointed for terms of three (3) years.
(c) The appointing authority shall fill any vacancy on the board of
directors by appointment for the remainder of the unexpired term. As added by Acts 1981, P.L.309, SEC.104. Amended by P.L.7-1983,
SEC.41.
IC 36-9-28-13 Board of directors; compensation
Sec. 13. Each member of a board of directors appointed under this
chapter is entitled to compensation, at a rate fixed by the circuit court
but not to exceed thirty-five dollars ($35) per day, for his services
under this chapter. The compensation of the board shall be paid from
the assessments made under section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.317, SEC.33.
IC 36-9-28-14 Board of directors; employment of assistants; compensation
Sec. 14. A board of directors appointed under this chapter may
employ the assistants necessary to perform its duties under this
chapter. The compensation of the assistants shall be paid from the
assessments made under section 16 of this chapter. As added by Acts, 1981, P.L.309, SEC.104. IC 36-9-28-15 Board of directors; necessary repairs; record of proceedings and of costs
and expenses of repairs
Sec. 15. (a) A board of directors appointed under this chapter
shall make all repairs necessary to keep the project in its original
condition. If, in making the repairs, it is necessary to change the line
and location of a ditch at any point, the board may do so, but the
board may not change its general line or location.
(b) The board of directors shall keep a record of its proceedings
and shall note in that record all expenses incurred in making repairs.
The board shall file with the county auditor a statement showing the
cost and expenses of making the repairs, specifying the amounts due
to each person. The auditor shall then draw his warrant in favor of
each person for the amount due them. The amounts due shall be paid
out of county revenues and shall be reimbursed to the county from
the assessments made under section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-16 Assessments; considerations; quotient; negligence of owner or
occupant of land; assessment date; certification of assessment; lien
Sec. 16. (a) The money necessary to pay costs incurred by a board
of directors in the management and maintenance of a project,
including money to be reimbursed to a county under section 15 of
this chapter, shall be derived from assessments made under this
section.
(b) The board of directors shall determine:
(1) the total number of acres of land benefited by the project
and located outside the municipality;
(2) the total number of lots benefited by the project and located
outside the municipality; and
(3) the total number of lots benefited by the project and located
inside the municipality.
Each lot, whether it is located inside or outside the municipality,
shall be counted as one-half (1/2) acre of land, and each major
fraction of an acre shall be counted as one (1) full acre.
(c) When the board of directors has determined the total number
of acres subject to assessment and the total amount of money
required for the next year, the board shall divide the total amount
required by the total number of acres assessed. The quotient obtained
is the amount per acre to be assessed for the next calendar year.
(d) If repairs have been rendered necessary by the act or
negligence of the owner or occupant of any lands, or of his employee
or agent, the cost of the repairs shall be assessed against only his
lands.
(e) All assessments shall be made before August 2 of each year.
(f) The board of directors shall certify the total amount assessed
against lots located inside the municipality to the municipal fiscal
officer. This amount shall be included in the municipal budget,
appropriated by the municipal legislative body, and paid out of the
municipal general fund.
(g) The board of directors shall make out a certified copy of the
assessments made on land outside the municipality, and shall file the
copy with the auditor of the county in which the lands and lots are
located. The auditor shall place the assessments against the land
upon the next tax duplicate. The assessment is a lien from the time
the certified copy of the assessments is filed, and shall be collected
as other state and county taxes are collected. All the laws regulating
the payment and collection of state and county taxes, the assessment
of penalties and interest, and the sale of property for delinquent taxes
apply to the payment and collection of assessments placed upon tax
duplicates under this subsection. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-17 Bonds; issuance when cost of maintaining project exceeds amount that
can be raised
Sec. 17. If a board of directors finds that the cost of maintaining
a project exceeds the amount that can be raised in any year, the board
may issue bonds in the manner in which bonds are issued for
construction of levees. However, the bonds and the interest on the
bonds shall be paid by assessments made in the manner prescribed
by section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-18 Standing water; removal; costs
Sec. 18. The board of directors in charge of a project may pump
out or remove from lands drained by a ditch any standing water that
has no means of outlet. The board may purchase pumps or adopt
other suitable means for the removal of the water, and the costs
necessarily incurred on account of any work done under this section
shall be assessed against the lands benefited by the removal of the
water. The costs shall be paid, assessed against the lands benefited,
and collected in the manner prescribed by section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28
Chapter 28. Certain Watercourse, Levee, Sewer, and Drain
Improvements
IC 36-9-28-1 Application of chapter
Sec. 1. This chapter applies to all municipalities other than a
consolidated city. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-2 Order to construct or improve; issuance; drawings and specifications for
project
Sec. 2. A municipal works board acting under this chapter may
issue an order to construct or improve a levee, change or improve a
natural or artificial watercourse, drain a section of land, or construct
a sewer or drain, if:
(1) the proposed project is designed to benefit land inside and
outside the corporate boundaries of the municipality; and
(2) the works board finds that the proposed project is necessary
for the welfare of all or part of the municipality.
If the works board issues such an order, it shall have the necessary
drawings and specifications for the project prepared and filed in its
office. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-3 Order to construct or improve; considerations; filing of record of
proceedings
Sec. 3. (a) In making an order for a project under this chapter, the
municipal works board shall consider whether the project will
beneficially or injuriously affect any property outside the corporate
boundaries of the municipality.
(b) If the works board finds that the proposed project will
injuriously or beneficially affect property outside the corporate
boundaries of the municipality, it shall file with the circuit court for
the county a record of all the proceedings concerning the project,
including:
(1) a list of all persons whose property will be affected, as
determined from the records of the county at the time the works
board passes the order for the project; and
(2) a description of the boundaries of the affected area.
The proceedings shall be docketed in the circuit court in the same
manner as other civil actions, and the court shall fix a time when the
proceedings shall be heard.
(c) If the works board finds that the proposed project will not
affect property outside the corporate boundaries of the municipality,
it may not proceed with the project under this chapter. As added by Acts 1981, P.L.309, SEC.104. IC 36-9-28-4 Notice of hearing; answer; judgment
Sec. 4. (a) After the record is filed under section 3 of this chapter,
the clerk of the circuit court shall give notice to all persons who are
mentioned in the record or who will be affected by the proposed
project. The notice must:
(1) be published in accordance with IC 5-3-1;
(2) name a date on which the court will hold a hearing on the
proposed project; and
(3) describe the boundaries of the area affected by the proposed
project.
(b) At the hearing, which may be adjourned from time to time,
persons who own property in the area affected by the proposed
project may file an answer showing why the works board should not
proceed with the project. The court shall hear the evidence and
determine whether the works board should proceed.
(c) If the court finds that the works board should proceed with the
project substantially as described in the record, it shall enter
judgment accordingly. Otherwise, the court shall dismiss the
proceedings.
(d) The court's judgment under this section may not be appealed. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.45, SEC.85.
IC 36-9-28-5 Control and supervision of work; letting of contract; reporting; filing
Sec. 5. If, under section 4 of this chapter, the court finds that the
municipal works board should proceed with a proposed project, the
works board shall control and supervise work for the project. The
works board shall:
(1) advertise for bids for the work; and
(2) let a contract or contracts for the work, subject to financing.
The works board shall report the letting of the contract or contracts
to the court, together with an estimate of other project costs, to be
filed with the proceedings concerning the project. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-6 Board of assessors; duties; appeals from assessments; hearings; roll of
property owners; corrections; actions to contest; costs
Sec. 6. (a) After the letting of a contract or contracts under section
5 of this chapter, the circuit court shall appoint three (3) competent,
disinterested residents of the county to serve as the board of
assessors for the project. The assessors shall take an oath to honestly
and faithfully perform their duties as assessors.
(b) The board of assessors shall:
(1) inspect the line of the proposed project and the property
within the area affected by the project;
(2) estimate and assess the benefits against each piece of
property to be benefited by the project;
(3) award damages to each piece of property to be injuriously
affected by the project; and
(4) prepare and file with the clerk of the circuit court an
assessment roll of the assessment against each property owner.
The clerk shall then give written notice of the assessment and the
right to appeal by certified mail or personal service upon each of the
property owners being assessed as his name and address appears on
the tax records of the county. The clerk shall make and file in his
records an affidavit of the giving of the notice.
(c) Appeals from the assessments may be made to the circuit court
within fifteen (15) days after the time of the filing of the clerk's
affidavit of service. The appeals shall be conducted in the manner
directed by the circuit court.
(d) In hearing appeals of assessments, the board of assessors shall:
(1) sit at the times and places directed by the court;
(2) administer oaths;
(3) send for persons and papers; and
(4) hear testimony concerning the question of benefits and
damages to be assessed.
The hearing may be continued from day to day.
(e) After hearing any appeals, the board of assessors shall finalize
the roll of property owners whose property will be benefited or
injured by the project, including:
(1) a description of the property affected; and
(2) the amount of the benefits or damages to the property, listed
opposite each description;
and shall file it with the circuit court.
(f) The board of assessors may correct a mistake or supply an
omission in the roll at any time. Proceedings under this chapter are
not defective or void because of an omission or defect in the roll, and
a property owner may not object to the proceedings on the ground of
any mistake in or omission of:
(1) the name of any person; or
(2) the description of any property.
The circuit court may call the board together to make any necessary
additions or corrections to the roll.
(g) An action to contest the assessments and the acts of the board
of assessors must be commenced within:
(1) thirty (30) days after the affidavit of service by the clerk of
the circuit court; or
(2) if an appeal is taken, within thirty (30) days after the filing
of the final report with the court.
(h) The circuit court shall make reasonable allowances to the
board of assessors and for attorney's fees, and shall tax these
allowances with the other costs of the proceedings. The allowances
are payable out of money available from bond proceeds, assessments,
or the municipal treasury. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-7 Application of other assessment statutes
Sec. 7. Except as otherwise provided by this chapter, the statutes
concerning street and sewer improvement assessments apply to
assessments made under this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-8 Acquisition of real or personal property required for project;
condemnation; purchase
Sec. 8. If any real or personal property inside or outside the
municipality is required for a project under this chapter:
(1) it may be condemned and paid for in the manner provided
by law; or
(2) the municipal works board may purchase and take a
conveyance for it for the use and benefit of the municipality, in
the manner prescribed for other purchases by the municipality.
All further proceedings concerning a project under this chapter must
be performed in accordance with the statutes governing public
improvements in municipalities. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-9 Bonds; issuance; payments; financing agreement; public sale
Sec. 9. (a) If the financing for a project under this chapter is to be
provided by the federal government, one (1) or more bonds may be
issued at any time after the filing of the assessment roll with the
circuit court under section 6 of this chapter.
(b) Bonds issued under this section are payable solely from:
(1) the assessments made or to be made against the property
benefited; or
(2) the money appropriated for that purpose by the
municipality;
and are not a general obligation of the municipality.
(c) Notwithstanding any other law, a financing agreement with the
federal government may provide that a municipal ordinance may
determine:
(1) the interest rate or rates on the bonds and the assessments;
(2) the time or times of maturities or of principal and
assessment payments;
(3) the terms, if any, for redemption of the bonds;
(4) the medium and the place or places for payment of the
bonds, including payment by mail to an owner of any fully
registered bond; and
(5) any other necessary terms and conditions.
(d) Bonds issued under this section need not be advertised for
public sale. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-10 Completion and acceptance of project; certification; benefits assessed
Sec. 10. (a) When the municipal works board finally accepts a
project under this chapter, it shall certify the completion and
acceptance of the project to the circuit court. The court shall then
direct the clerk of the court to make out two (2) copies of a list
showing:
(1) the owners of the property affected by the project;
(2) a description of each parcel of property affected by the
project; and
(3) the benefits and damages assessed upon or in favor of each
parcel.
The clerk shall certify the copies under the seal of the court, and
shall deliver one (1) copy to the municipal fiscal officer and one (1)
copy to the county treasurer.
(b) If the works board finds that the project is necessary for the
public welfare of the municipality and that the benefits assessed will
fall below the amount required to pay the damages awarded and to
pay for the project, the board shall order that any balance required
for this purpose shall be paid by the municipality out of the general
fund or out of any other available money. If the works board finds
that the benefits assessed exceed the amount of financing needed,
each assessment shall be reduced on a pro rata basis. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-11 Board of directors; duties; petition for appointment; notice of hearing;
appearance; judgment
Sec. 11. (a) After a project is completed and approved under this
chapter, the care, management, control, repair, and maintenance of
the project may be placed under the jurisdiction of a board of
directors appointed under this section.
(b) A petition requesting the appointment of a board of directors
for the project may be filed with the clerk of the circuit court. The
petition may be signed by:
(1) the municipal works board, if all or part of the municipality
is located in the area affected by the project;
(2) the executive and legislative body of a township, if all or
part of the township is located in the area affected by the
project;
(3) any twenty-five (25) landowners who reside in a
municipality and whose lands are located in the area affected by
the improvement; or
(4) any twenty-five (25) landowners who do not reside in a
municipality and whose lands are located in the area affected by
the project.
The petition shall be docketed as a pending action, and the court
shall fix a time when the petition shall be heard.
(c) After the petition is filed and docketed, the clerk of the circuit
court shall give notice of the hearing by publication in accordance
with IC 5-3-1. The notice shall be addressed to all persons who were
originally assessed for the construction of the project.
(d) Any person owning land located in the area affected by the
project may appear at the hearing and be heard, either in person or by
his attorney.
(e) If the circuit court determines that a board of directors should
be appointed and assessments should be imposed for the care,
management, control, repair, and maintenance of the project, the
court shall enter a judgment accordingly. If the court enters such a
judgment, two (2) members of the board of directors shall be
appointed by the county executive and one (1) member of the board
of directors shall be appointed by the municipal executive. The three
(3) appointed persons must be qualified under section 12 of this
chapter.
(f) If the court determines that a board of directors should not be
appointed, it shall dismiss the petition. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.45, SEC.86; P.L.7-1983, SEC.40.
IC 36-9-28-12 Board of directors; qualifications; terms; vacancy
Sec. 12. (a) A board of directors appointed under this chapter
consists of three (3) directors, who must own land assessed for the
construction of the project. One (1) of the directors must be a
resident of the municipality affected by the improvement, and two
(2) of the directors must be residents of an unincorporated area.
(b) One (1) of the original directors shall be appointed for a term
of one (1) year, one (1) for a term of two (2) years, and one (1) for a
term of three (3) years. After the expiration of the original terms, all
directors shall be appointed for terms of three (3) years.
(c) The appointing authority shall fill any vacancy on the board of
directors by appointment for the remainder of the unexpired term. As added by Acts 1981, P.L.309, SEC.104. Amended by P.L.7-1983,
SEC.41.
IC 36-9-28-13 Board of directors; compensation
Sec. 13. Each member of a board of directors appointed under this
chapter is entitled to compensation, at a rate fixed by the circuit court
but not to exceed thirty-five dollars ($35) per day, for his services
under this chapter. The compensation of the board shall be paid from
the assessments made under section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.317, SEC.33.
IC 36-9-28-14 Board of directors; employment of assistants; compensation
Sec. 14. A board of directors appointed under this chapter may
employ the assistants necessary to perform its duties under this
chapter. The compensation of the assistants shall be paid from the
assessments made under section 16 of this chapter. As added by Acts, 1981, P.L.309, SEC.104. IC 36-9-28-15 Board of directors; necessary repairs; record of proceedings and of costs
and expenses of repairs
Sec. 15. (a) A board of directors appointed under this chapter
shall make all repairs necessary to keep the project in its original
condition. If, in making the repairs, it is necessary to change the line
and location of a ditch at any point, the board may do so, but the
board may not change its general line or location.
(b) The board of directors shall keep a record of its proceedings
and shall note in that record all expenses incurred in making repairs.
The board shall file with the county auditor a statement showing the
cost and expenses of making the repairs, specifying the amounts due
to each person. The auditor shall then draw his warrant in favor of
each person for the amount due them. The amounts due shall be paid
out of county revenues and shall be reimbursed to the county from
the assessments made under section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-16 Assessments; considerations; quotient; negligence of owner or
occupant of land; assessment date; certification of assessment; lien
Sec. 16. (a) The money necessary to pay costs incurred by a board
of directors in the management and maintenance of a project,
including money to be reimbursed to a county under section 15 of
this chapter, shall be derived from assessments made under this
section.
(b) The board of directors shall determine:
(1) the total number of acres of land benefited by the project
and located outside the municipality;
(2) the total number of lots benefited by the project and located
outside the municipality; and
(3) the total number of lots benefited by the project and located
inside the municipality.
Each lot, whether it is located inside or outside the municipality,
shall be counted as one-half (1/2) acre of land, and each major
fraction of an acre shall be counted as one (1) full acre.
(c) When the board of directors has determined the total number
of acres subject to assessment and the total amount of money
required for the next year, the board shall divide the total amount
required by the total number of acres assessed. The quotient obtained
is the amount per acre to be assessed for the next calendar year.
(d) If repairs have been rendered necessary by the act or
negligence of the owner or occupant of any lands, or of his employee
or agent, the cost of the repairs shall be assessed against only his
lands.
(e) All assessments shall be made before August 2 of each year.
(f) The board of directors shall certify the total amount assessed
against lots located inside the municipality to the municipal fiscal
officer. This amount shall be included in the municipal budget,
appropriated by the municipal legislative body, and paid out of the
municipal general fund.
(g) The board of directors shall make out a certified copy of the
assessments made on land outside the municipality, and shall file the
copy with the auditor of the county in which the lands and lots are
located. The auditor shall place the assessments against the land
upon the next tax duplicate. The assessment is a lien from the time
the certified copy of the assessments is filed, and shall be collected
as other state and county taxes are collected. All the laws regulating
the payment and collection of state and county taxes, the assessment
of penalties and interest, and the sale of property for delinquent taxes
apply to the payment and collection of assessments placed upon tax
duplicates under this subsection. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-17 Bonds; issuance when cost of maintaining project exceeds amount that
can be raised
Sec. 17. If a board of directors finds that the cost of maintaining
a project exceeds the amount that can be raised in any year, the board
may issue bonds in the manner in which bonds are issued for
construction of levees. However, the bonds and the interest on the
bonds shall be paid by assessments made in the manner prescribed
by section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-18 Standing water; removal; costs
Sec. 18. The board of directors in charge of a project may pump
out or remove from lands drained by a ditch any standing water that
has no means of outlet. The board may purchase pumps or adopt
other suitable means for the removal of the water, and the costs
necessarily incurred on account of any work done under this section
shall be assessed against the lands benefited by the removal of the
water. The costs shall be paid, assessed against the lands benefited,
and collected in the manner prescribed by section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28
Chapter 28. Certain Watercourse, Levee, Sewer, and Drain
Improvements
IC 36-9-28-1 Application of chapter
Sec. 1. This chapter applies to all municipalities other than a
consolidated city. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-2 Order to construct or improve; issuance; drawings and specifications for
project
Sec. 2. A municipal works board acting under this chapter may
issue an order to construct or improve a levee, change or improve a
natural or artificial watercourse, drain a section of land, or construct
a sewer or drain, if:
(1) the proposed project is designed to benefit land inside and
outside the corporate boundaries of the municipality; and
(2) the works board finds that the proposed project is necessary
for the welfare of all or part of the municipality.
If the works board issues such an order, it shall have the necessary
drawings and specifications for the project prepared and filed in its
office. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-3 Order to construct or improve; considerations; filing of record of
proceedings
Sec. 3. (a) In making an order for a project under this chapter, the
municipal works board shall consider whether the project will
beneficially or injuriously affect any property outside the corporate
boundaries of the municipality.
(b) If the works board finds that the proposed project will
injuriously or beneficially affect property outside the corporate
boundaries of the municipality, it shall file with the circuit court for
the county a record of all the proceedings concerning the project,
including:
(1) a list of all persons whose property will be affected, as
determined from the records of the county at the time the works
board passes the order for the project; and
(2) a description of the boundaries of the affected area.
The proceedings shall be docketed in the circuit court in the same
manner as other civil actions, and the court shall fix a time when the
proceedings shall be heard.
(c) If the works board finds that the proposed project will not
affect property outside the corporate boundaries of the municipality,
it may not proceed with the project under this chapter. As added by Acts 1981, P.L.309, SEC.104. IC 36-9-28-4 Notice of hearing; answer; judgment
Sec. 4. (a) After the record is filed under section 3 of this chapter,
the clerk of the circuit court shall give notice to all persons who are
mentioned in the record or who will be affected by the proposed
project. The notice must:
(1) be published in accordance with IC 5-3-1;
(2) name a date on which the court will hold a hearing on the
proposed project; and
(3) describe the boundaries of the area affected by the proposed
project.
(b) At the hearing, which may be adjourned from time to time,
persons who own property in the area affected by the proposed
project may file an answer showing why the works board should not
proceed with the project. The court shall hear the evidence and
determine whether the works board should proceed.
(c) If the court finds that the works board should proceed with the
project substantially as described in the record, it shall enter
judgment accordingly. Otherwise, the court shall dismiss the
proceedings.
(d) The court's judgment under this section may not be appealed. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.45, SEC.85.
IC 36-9-28-5 Control and supervision of work; letting of contract; reporting; filing
Sec. 5. If, under section 4 of this chapter, the court finds that the
municipal works board should proceed with a proposed project, the
works board shall control and supervise work for the project. The
works board shall:
(1) advertise for bids for the work; and
(2) let a contract or contracts for the work, subject to financing.
The works board shall report the letting of the contract or contracts
to the court, together with an estimate of other project costs, to be
filed with the proceedings concerning the project. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-6 Board of assessors; duties; appeals from assessments; hearings; roll of
property owners; corrections; actions to contest; costs
Sec. 6. (a) After the letting of a contract or contracts under section
5 of this chapter, the circuit court shall appoint three (3) competent,
disinterested residents of the county to serve as the board of
assessors for the project. The assessors shall take an oath to honestly
and faithfully perform their duties as assessors.
(b) The board of assessors shall:
(1) inspect the line of the proposed project and the property
within the area affected by the project;
(2) estimate and assess the benefits against each piece of
property to be benefited by the project;
(3) award damages to each piece of property to be injuriously
affected by the project; and
(4) prepare and file with the clerk of the circuit court an
assessment roll of the assessment against each property owner.
The clerk shall then give written notice of the assessment and the
right to appeal by certified mail or personal service upon each of the
property owners being assessed as his name and address appears on
the tax records of the county. The clerk shall make and file in his
records an affidavit of the giving of the notice.
(c) Appeals from the assessments may be made to the circuit court
within fifteen (15) days after the time of the filing of the clerk's
affidavit of service. The appeals shall be conducted in the manner
directed by the circuit court.
(d) In hearing appeals of assessments, the board of assessors shall:
(1) sit at the times and places directed by the court;
(2) administer oaths;
(3) send for persons and papers; and
(4) hear testimony concerning the question of benefits and
damages to be assessed.
The hearing may be continued from day to day.
(e) After hearing any appeals, the board of assessors shall finalize
the roll of property owners whose property will be benefited or
injured by the project, including:
(1) a description of the property affected; and
(2) the amount of the benefits or damages to the property, listed
opposite each description;
and shall file it with the circuit court.
(f) The board of assessors may correct a mistake or supply an
omission in the roll at any time. Proceedings under this chapter are
not defective or void because of an omission or defect in the roll, and
a property owner may not object to the proceedings on the ground of
any mistake in or omission of:
(1) the name of any person; or
(2) the description of any property.
The circuit court may call the board together to make any necessary
additions or corrections to the roll.
(g) An action to contest the assessments and the acts of the board
of assessors must be commenced within:
(1) thirty (30) days after the affidavit of service by the clerk of
the circuit court; or
(2) if an appeal is taken, within thirty (30) days after the filing
of the final report with the court.
(h) The circuit court shall make reasonable allowances to the
board of assessors and for attorney's fees, and shall tax these
allowances with the other costs of the proceedings. The allowances
are payable out of money available from bond proceeds, assessments,
or the municipal treasury. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-7 Application of other assessment statutes
Sec. 7. Except as otherwise provided by this chapter, the statutes
concerning street and sewer improvement assessments apply to
assessments made under this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-8 Acquisition of real or personal property required for project;
condemnation; purchase
Sec. 8. If any real or personal property inside or outside the
municipality is required for a project under this chapter:
(1) it may be condemned and paid for in the manner provided
by law; or
(2) the municipal works board may purchase and take a
conveyance for it for the use and benefit of the municipality, in
the manner prescribed for other purchases by the municipality.
All further proceedings concerning a project under this chapter must
be performed in accordance with the statutes governing public
improvements in municipalities. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-9 Bonds; issuance; payments; financing agreement; public sale
Sec. 9. (a) If the financing for a project under this chapter is to be
provided by the federal government, one (1) or more bonds may be
issued at any time after the filing of the assessment roll with the
circuit court under section 6 of this chapter.
(b) Bonds issued under this section are payable solely from:
(1) the assessments made or to be made against the property
benefited; or
(2) the money appropriated for that purpose by the
municipality;
and are not a general obligation of the municipality.
(c) Notwithstanding any other law, a financing agreement with the
federal government may provide that a municipal ordinance may
determine:
(1) the interest rate or rates on the bonds and the assessments;
(2) the time or times of maturities or of principal and
assessment payments;
(3) the terms, if any, for redemption of the bonds;
(4) the medium and the place or places for payment of the
bonds, including payment by mail to an owner of any fully
registered bond; and
(5) any other necessary terms and conditions.
(d) Bonds issued under this section need not be advertised for
public sale. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-10 Completion and acceptance of project; certification; benefits assessed
Sec. 10. (a) When the municipal works board finally accepts a
project under this chapter, it shall certify the completion and
acceptance of the project to the circuit court. The court shall then
direct the clerk of the court to make out two (2) copies of a list
showing:
(1) the owners of the property affected by the project;
(2) a description of each parcel of property affected by the
project; and
(3) the benefits and damages assessed upon or in favor of each
parcel.
The clerk shall certify the copies under the seal of the court, and
shall deliver one (1) copy to the municipal fiscal officer and one (1)
copy to the county treasurer.
(b) If the works board finds that the project is necessary for the
public welfare of the municipality and that the benefits assessed will
fall below the amount required to pay the damages awarded and to
pay for the project, the board shall order that any balance required
for this purpose shall be paid by the municipality out of the general
fund or out of any other available money. If the works board finds
that the benefits assessed exceed the amount of financing needed,
each assessment shall be reduced on a pro rata basis. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-11 Board of directors; duties; petition for appointment; notice of hearing;
appearance; judgment
Sec. 11. (a) After a project is completed and approved under this
chapter, the care, management, control, repair, and maintenance of
the project may be placed under the jurisdiction of a board of
directors appointed under this section.
(b) A petition requesting the appointment of a board of directors
for the project may be filed with the clerk of the circuit court. The
petition may be signed by:
(1) the municipal works board, if all or part of the municipality
is located in the area affected by the project;
(2) the executive and legislative body of a township, if all or
part of the township is located in the area affected by the
project;
(3) any twenty-five (25) landowners who reside in a
municipality and whose lands are located in the area affected by
the improvement; or
(4) any twenty-five (25) landowners who do not reside in a
municipality and whose lands are located in the area affected by
the project.
The petition shall be docketed as a pending action, and the court
shall fix a time when the petition shall be heard.
(c) After the petition is filed and docketed, the clerk of the circuit
court shall give notice of the hearing by publication in accordance
with IC 5-3-1. The notice shall be addressed to all persons who were
originally assessed for the construction of the project.
(d) Any person owning land located in the area affected by the
project may appear at the hearing and be heard, either in person or by
his attorney.
(e) If the circuit court determines that a board of directors should
be appointed and assessments should be imposed for the care,
management, control, repair, and maintenance of the project, the
court shall enter a judgment accordingly. If the court enters such a
judgment, two (2) members of the board of directors shall be
appointed by the county executive and one (1) member of the board
of directors shall be appointed by the municipal executive. The three
(3) appointed persons must be qualified under section 12 of this
chapter.
(f) If the court determines that a board of directors should not be
appointed, it shall dismiss the petition. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.45, SEC.86; P.L.7-1983, SEC.40.
IC 36-9-28-12 Board of directors; qualifications; terms; vacancy
Sec. 12. (a) A board of directors appointed under this chapter
consists of three (3) directors, who must own land assessed for the
construction of the project. One (1) of the directors must be a
resident of the municipality affected by the improvement, and two
(2) of the directors must be residents of an unincorporated area.
(b) One (1) of the original directors shall be appointed for a term
of one (1) year, one (1) for a term of two (2) years, and one (1) for a
term of three (3) years. After the expiration of the original terms, all
directors shall be appointed for terms of three (3) years.
(c) The appointing authority shall fill any vacancy on the board of
directors by appointment for the remainder of the unexpired term. As added by Acts 1981, P.L.309, SEC.104. Amended by P.L.7-1983,
SEC.41.
IC 36-9-28-13 Board of directors; compensation
Sec. 13. Each member of a board of directors appointed under this
chapter is entitled to compensation, at a rate fixed by the circuit court
but not to exceed thirty-five dollars ($35) per day, for his services
under this chapter. The compensation of the board shall be paid from
the assessments made under section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104. Amended by Acts 1981,
P.L.317, SEC.33.
IC 36-9-28-14 Board of directors; employment of assistants; compensation
Sec. 14. A board of directors appointed under this chapter may
employ the assistants necessary to perform its duties under this
chapter. The compensation of the assistants shall be paid from the
assessments made under section 16 of this chapter. As added by Acts, 1981, P.L.309, SEC.104. IC 36-9-28-15 Board of directors; necessary repairs; record of proceedings and of costs
and expenses of repairs
Sec. 15. (a) A board of directors appointed under this chapter
shall make all repairs necessary to keep the project in its original
condition. If, in making the repairs, it is necessary to change the line
and location of a ditch at any point, the board may do so, but the
board may not change its general line or location.
(b) The board of directors shall keep a record of its proceedings
and shall note in that record all expenses incurred in making repairs.
The board shall file with the county auditor a statement showing the
cost and expenses of making the repairs, specifying the amounts due
to each person. The auditor shall then draw his warrant in favor of
each person for the amount due them. The amounts due shall be paid
out of county revenues and shall be reimbursed to the county from
the assessments made under section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-16 Assessments; considerations; quotient; negligence of owner or
occupant of land; assessment date; certification of assessment; lien
Sec. 16. (a) The money necessary to pay costs incurred by a board
of directors in the management and maintenance of a project,
including money to be reimbursed to a county under section 15 of
this chapter, shall be derived from assessments made under this
section.
(b) The board of directors shall determine:
(1) the total number of acres of land benefited by the project
and located outside the municipality;
(2) the total number of lots benefited by the project and located
outside the municipality; and
(3) the total number of lots benefited by the project and located
inside the municipality.
Each lot, whether it is located inside or outside the municipality,
shall be counted as one-half (1/2) acre of land, and each major
fraction of an acre shall be counted as one (1) full acre.
(c) When the board of directors has determined the total number
of acres subject to assessment and the total amount of money
required for the next year, the board shall divide the total amount
required by the total number of acres assessed. The quotient obtained
is the amount per acre to be assessed for the next calendar year.
(d) If repairs have been rendered necessary by the act or
negligence of the owner or occupant of any lands, or of his employee
or agent, the cost of the repairs shall be assessed against only his
lands.
(e) All assessments shall be made before August 2 of each year.
(f) The board of directors shall certify the total amount assessed
against lots located inside the municipality to the municipal fiscal
officer. This amount shall be included in the municipal budget,
appropriated by the municipal legislative body, and paid out of the
municipal general fund.
(g) The board of directors shall make out a certified copy of the
assessments made on land outside the municipality, and shall file the
copy with the auditor of the county in which the lands and lots are
located. The auditor shall place the assessments against the land
upon the next tax duplicate. The assessment is a lien from the time
the certified copy of the assessments is filed, and shall be collected
as other state and county taxes are collected. All the laws regulating
the payment and collection of state and county taxes, the assessment
of penalties and interest, and the sale of property for delinquent taxes
apply to the payment and collection of assessments placed upon tax
duplicates under this subsection. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-17 Bonds; issuance when cost of maintaining project exceeds amount that
can be raised
Sec. 17. If a board of directors finds that the cost of maintaining
a project exceeds the amount that can be raised in any year, the board
may issue bonds in the manner in which bonds are issued for
construction of levees. However, the bonds and the interest on the
bonds shall be paid by assessments made in the manner prescribed
by section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
IC 36-9-28-18 Standing water; removal; costs
Sec. 18. The board of directors in charge of a project may pump
out or remove from lands drained by a ditch any standing water that
has no means of outlet. The board may purchase pumps or adopt
other suitable means for the removal of the water, and the costs
necessarily incurred on account of any work done under this section
shall be assessed against the lands benefited by the removal of the
water. The costs shall be paid, assessed against the lands benefited,
and collected in the manner prescribed by section 16 of this chapter. As added by Acts 1981, P.L.309, SEC.104.
