IC 36-9-38
Chapter 38. Barrett Law Funding for Municipal Improvement
Districts
IC 36-9-38-1 Application of chapter
Sec. 1. This chapter applies to all municipalities. As added by P.L.98-1993, SEC.9.
IC 36-9-38-2 Permissible improvements
Sec. 2. The following improvements may be made under this
chapter:
(1) Sidewalks.
(2) Streets.
(3) Pedestrian ways or malls that are set aside entirely or partly,
or during restricted hours, for pedestrian rather than vehicular
traffic.
(4) Parking facilities.
(5) Lighting.
(6) Electric signals.
(7) Landscaping, including trees, shrubbery, flowers, grass,
fountains, benches, statues, floodlighting, gaslighting, and
structures of a decorative, an educational, or a historical nature.
(8) Emergency warning systems. As added by P.L.98-1993, SEC.9. Amended by P.L.42-2006, SEC.3.
IC 36-9-38-3 Improvement to be owned, maintained, and operated by
municipality
Sec. 3. An improvement constructed under this chapter shall be
owned, maintained, and operated by the municipality under the
direction of the municipal works board. As added by P.L.98-1993, SEC.9.
IC 36-9-38-4 Application of statutes relating to planning and zoning, building
codes, and restrictions on use of property
Sec. 4. The statutes relating to planning and zoning, building
codes, and restrictions on the use of property apply to an
improvement under this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-5 Application of IC 36-9-36 and IC 36-9-37
Sec. 5. To the extent they are not in conflict with this chapter, all
the provisions of IC 36-9-36 and IC 36-9-37 apply to proceedings
under this chapter. As added by P.L.98-1993, SEC.9. IC 36-9-38-6 Persons having the same rights and powers as the owner of fee
simple title
Sec. 6. For purposes of this chapter, the following persons have
the same rights and powers as the owner of the fee simple title to a
parcel of real property:
(1) The legal or authorized representative of the owner.
(2) A person obligated under a written instrument to pay an
assessment against the property under this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-7 Petition to establish district
Sec. 7. (a) A petition for the establishment of an improvement
district under this chapter may be filed with the works board of a
municipality by any of the following:
(1) An association established under section 8 of this chapter.
(2) The owners of at least twenty-five percent (25%) of the
parcels of real property in the proposed improvement district if
an association has not been formed under section 8 of this
chapter.
(b) A petition filed under this section by an association must be
signed by a majority of the association's directors.
(c) A petition filed under this section must set forth all of the
following:
(1) The boundaries of the proposed improvement district,
including all of the real property that the petitioners believe will
be specially benefited or damaged by the proposed
improvement.
(2) The location and a general description of the proposed
improvement.
(3) The estimated cost of the proposed improvement.
(4) As part of the petition or as an accompanying exhibit, the
names and addresses of all the owners of real property within
the boundaries of the proposed improvement district as the
names and addresses are listed on the tax duplicates in the
records of the county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-8 Association of owners of property affected by proposed
improvement; requirements for establishment
Sec. 8. At least fifteen (15) persons may establish an association
for purposes of this chapter if the persons are the owners of the
following:
(1) At least fifteen (15) separate parcels of real property.
(2) At least twenty percent (20%) of the surface area of the real
property affected by a proposed improvement under this
chapter. As added by P.L.98-1993, SEC.9. IC 36-9-38-9 Association established under IC 36-9-38-8; articles of association;
filing and recording; powers
Sec. 9. (a) The persons establishing an association under section
8 of this chapter must sign and acknowledge written articles of
association specifying the following:
(1) The name of the association.
(2) The purposes of the association, which must be limited to
the purposes of this chapter.
(3) The names and addresses of the initial members.
(4) The principal office of the association.
(5) The name of the agent for purposes of communications and
service of process.
(6) The term of existence of the association, which may be
perpetual.
(7) The number of directors, which may not be less than three
(3) or more than eleven (11).
(8) The amount of any membership fee and any annual dues.
(9) The area affected by any proposed improvements included
within the purposes of the association.
(10) The square footage of the area affected by the proposed
improvement.
(11) The square footage of the area affected by the proposed
improvement included within the association.
(12) Any other provisions that the initial members consider
desirable and that are not inconsistent with this chapter.
(b) The association shall file a copy of the articles of association,
signed and acknowledged by all of the initial members, with the
works board of the municipality in which the affected area is located.
A copy of the articles of association shall be recorded in the office
of the recorder of the county within which the area is located.
(c) An association formed under this chapter (or under IC 36-9-20
before its repeal in 1993) is a nonprofit corporate body and may do
the following:
(1) Enter into contracts.
(2) Hold, convey, and transfer property.
(3) Sue and be sued. As added by P.L.98-1993, SEC.9.
IC 36-9-38-10 Association established under IC 36-9-38-8; notice; meeting
Sec. 10. (a) Not later than ninety (90) days after the filing and
recording of the articles of association, the association shall hold a
meeting of all owners of real property in the area described in the
articles for the purpose of electing directors of the association.
(b) At least twenty (20) days before the meeting, notice of the
meeting shall be mailed, first class postage prepaid, to all owners of
real property in the area described in the articles of association. The
notice must set forth the following:
(1) The time and place of the meeting.
(2) The purpose of the meeting.
(3) A general description of the nature and object of the
association.
(4) The amount of any membership fee and any annual dues.
(5) Notice that an owner of real property may become a member
of the association and be eligible to vote in the meeting, either
in person or by authorized agent or attorney, by doing the
following:
(A) Signing a copy of the articles of association at any time
before the commencement of the meeting.
(B) Paying the membership fee, if any, and the dues for the
first year, if any.
(c) The notice under subsection (b) may be mailed to the owners
of real property at the owners' addresses appearing upon the tax
duplicates in the records of the county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-11 Association established under IC 36-9-38-8; directors; bylaws
Sec. 11. (a) The directors of the association must be:
(1) members of the association; and
(2) owners of real property in the affected area.
(b) The directors elected under section 10 of this chapter serve
until the next annual meeting and until the directors' successors are
elected and qualified.
(c) The directors shall approve bylaws of the association. The
following apply to the bylaws of the association:
(1) The bylaws may be amended.
(2) The bylaws may provide for officers of the association to be
elected annually by the directors.
(3) The bylaws may contain any other provisions that are
desirable for the conduct of the affairs of the association. As added by P.L.98-1993, SEC.9.
IC 36-9-38-12 Association established under IC 36-9-38-8; articles; amendment;
property owners subsequently becoming members
Sec. 12. (a) The articles of association may be amended upon the
recommendation of the directors and the approval of two-thirds (2/3)
of all members of the association at a meeting called for that purpose.
Amended articles must be signed and acknowledged by a majority of
the directors. A copy of all amendments shall be filed with the
municipal works board and recorded in the office of the county
recorder.
(b) A copy of the articles of association, with any amendments,
shall be kept available at the office of the agent of the association
during regular business hours for signature by an owner of real
property who desires to become a member of the association by
signing the copy and by paying any membership fee and any annual
dues.
As added by P.L.98-1993, SEC.9.
IC 36-9-38-13 Notice of hearing on establishment of district
Sec. 13. (a) Upon the filing of a petition under section 7 of this
chapter, the municipal works board shall fix a date for a hearing on
the establishment of the proposed improvement district. At least
twenty-one (21) days before the date fixed for the hearing, the
petitioners shall have a notice mailed to all owners of real property
within the proposed improvement district. The notice may be mailed
to the owners of real property at the owners' addresses appearing
upon the tax duplicates in the records of the county auditor.
(b) The petitioners shall publish a notice of the hearing and the
date, place, and time of the hearing in accordance with IC 5-3-1.
(c) The notice to be published and mailed must do the following:
(1) Contain a general description of the contents of the petition.
(2) Specifically set forth the boundaries of the proposed district.
(3) State that all of the property in the proposed district will be
assessed benefits or damages under this chapter for the
proposed improvement.
(4) State that at the hearing all owners of real property within
the proposed improvement district or the owners'
representatives may be heard upon the question of the
establishment of the district.
(d) Proof of service shall be made by affidavit of the person or
persons causing service to be made. As added by P.L.98-1993, SEC.9.
IC 36-9-38-14 Petition in opposition to district; termination of proceedings
Sec. 14. (a) The owners of real property located in a proposed
improvement district may remonstrate against the establishment of
that district by filing a petition with the municipal works board. The
county auditor shall verify the signatures on the petition.
(b) If the number of valid signatures equals or exceeds fifty-one
percent (51%) of the owners of real property in the proposed
improvement district, the works board shall cease the works board's
proceedings to establish the improvement district. As added by P.L.98-1993, SEC.9.
IC 36-9-38-15 Conduct of hearing; resolution
Sec. 15. (a) At the hearing fixed under section 13 of this chapter,
the municipal works board shall hear all owners of real property in
the proposed improvement district who appear and request to be
heard upon the following questions:
(1) The sufficiency of the petition and notice.
(2) Whether the proposed improvement is of public utility and
benefit.
(3) Whether all of the probable benefits of the proposed
improvement, including the benefits to the municipality
generally, will equal or exceed the estimated cost of the
improvement.
(4) Whether the improvement district contains all, more than
all, or less than all of the property specially benefited or
damaged by the proposed improvement.
(b) The hearing under subsection (a) may be adjourned
periodically without further notice. After the completion of the
hearing, the works board shall adopt a resolution determining
whether the following conditions have been met:
(1) The petition is sufficient.
(2) The required notice was given.
(3) The proposed improvements are of public utility and
benefit.
(4) All of the probable benefits of the proposed improvement
will equal or exceed the estimated cost of the proposed
improvement.
(5) The proposed improvement district contains all, more than
all, or less than all of the property specially benefited or
damaged by the proposed improvement.
(c) The works board shall establish the improvement district with
the boundaries described in the petition if the works board does the
following:
(1) Answers the questions in subsection (b)(1) through (b)(4)
affirmatively.
(2) Determines that the proposed improvement district contains
all of the property specially benefited or damaged.
(d) If the works board answers any of the first four (4) questions
negatively, the works board may:
(1) allow amendments and the issuance of additional notice and
may hold further proceedings; or
(2) dismiss the petition without prejudice to the right to file a
new petition. As added by P.L.98-1993, SEC.9.
IC 36-9-38-16 Hearing; determination that petition includes property not
specially benefited; further proceedings
Sec. 16. (a) If the works board determines that property not
specially benefited or damaged has been included within boundaries
described in the petition, the works board shall do the following:
(1) Redefine the boundaries of the district and include in the
works board's resolution only the property that is specially
benefited or damaged.
(2) Establish the district with the boundaries as redefined.
(b) The works board shall fix a date for a further hearing if the
works board determines that:
(1) less than all of the property specially benefited or damaged
has been included within the boundaries described in the
petition; or
(2) less than all of the property specially benefited or damaged
has been included within the boundaries described in the
petition and some property that is not specially benefited or
damaged has been included.
(c) Notice of the further hearing, describing the proposed revised
boundaries, shall be given in the manner prescribed by section 13 of
this chapter. However, notice by mail shall be given only to the
owners of real property in an area that is proposed to be added to the
district and that was not included in the initial petition.
(d) At the further hearing, all owners of real property within the
proposed district boundaries or the owners' representatives are
entitled to be heard. The works board shall then adopt a resolution on
the establishment of the district. As added by P.L.98-1993, SEC.9.
IC 36-9-38-17 Resolution establishing improvement district; recitations; notice to
property owners; finality; recording; appeal
Sec. 17. (a) A resolution establishing an improvement district
must also recite the following:
(1) That all real property within the district is subject to
assessment of special benefits and damages by appraisers to be
appointed by the municipal works board.
(2) That the assessments are subject to review in a hearing
before the works board.
(b) The works board's resolution is considered notice to all
property owners who have appeared or who have been notified of the
proceedings that the owners' property is subject to an assessment of
special benefits and damages under this chapter. Further notice or
hearing is not required, except as provided by section 26 of this
chapter.
(c) The resolution of the works board:
(1) is final and conclusive; and
(2) may not be challenged unless an appeal is made under
subsection (e).
(d) A copy of the resolution establishing an improvement district,
certified by the municipal clerk, shall be recorded in the
miscellaneous records in the office of the recorder of the county in
which the municipality is located.
(e) A person aggrieved by the adoption of a resolution
establishing an improvement district may appeal in the manner
prescribed by IC 34-13-6. As added by P.L.98-1993, SEC.9. Amended by P.L.1-1998, SEC.217.
IC 36-9-38-18 Plans, specifications, and cost estimates
Sec. 18. (a) Upon adoption of a resolution establishing an
improvement district, the petitioners for the district shall submit any
plans, specifications, and estimates of the cost of the proposed
improvement that the petitioners have prepared to the municipal
works board for review and approval.
(b) If the petitioners have not prepared plans and specifications,
the works board shall have plans, specifications, and estimates of the
cost of the proposed improvement prepared. For the purpose of
preparing plans, specifications, and estimates of cost, the works
board may employ architects, engineers, and other necessary
consultants without an appropriation. The petitioners may advance
money for this employment, subject to reimbursement, or the
municipality may advance money on the approval of the municipal
legislative body from unappropriated funds without an appropriation,
also subject to reimbursement.
(c) Estimates of costs prepared under this section must include the
following:
(1) Architectural, appraisal, consultant, engineering, legal,
supervision, and other professional fees.
(2) The cost of plans and specifications, including amounts to
be reimbursed under subsection (b).
(3) Construction costs, including the cost of land, material, and
labor.
(4) All other related and incidental expenses. As added by P.L.98-1993, SEC.9.
IC 36-9-38-19 Eminent domain; vacation of streets and alleys; property owned by
government entities
Sec. 19. (a) If:
(1) an improvement under this chapter requires the acquisition
of property or property rights; and
(2) the acquisition cannot be made through the assessment
proceedings established by this chapter;
the municipality may proceed by eminent domain.
(b) The eminent domain proceeding shall be conducted in the
manner provided by the statutes applicable to acquisition of property
by the municipality for public purposes. Any property or property
rights acquired belong to the municipality.
(c) If it is necessary to vacate streets or alleys, the vacation shall
be made in the manner provided by statute.
(d) Any property owned by the municipality or another
governmental entity may be made available for any public
improvement under this chapter, without charge. As added by P.L.98-1993, SEC.9.
IC 36-9-38-20 Letting of construction contracts; actions to enjoin performance;
limitations
Sec. 20. (a) All contracts for construction of an improvement
under this chapter shall be let by the municipal works board after
advertisement as required for other contracts.
(b) All statutes applicable to the letting and performance of other
contracts apply to contracts under this chapter.
(c) The validity of a contract entered into under this chapter may
not be questioned, except in an action to enjoin performance. The
action must be brought not later than fifteen (15) days from the
execution of the contract. If the action is not brought within the
fifteen (15) day period, the contract is valid, conclusive, and binding
upon all persons. As added by P.L.98-1993, SEC.9.
IC 36-9-38-21 Appointment of appraisers to assess benefits and costs
Sec. 21. (a) After the municipal works board approves plans and
specifications for an improvement under this chapter, the works
board shall appoint three (3) disinterested persons as appraisers to
examine the following:
(1) The plans, specifications, and estimates of the cost of the
proposed improvement.
(2) The real property within the improvement district.
(b) Upon request from the appraisers or the petitioners, the works
board may do the following:
(1) Retain or employ qualified personnel to provide necessary
technical or consulting assistance.
(2) Supply the appraisers with information that will assist the
appraisers in making the assessment under section 22 of this
chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-22 Appointment of appraisers; assessment of benefits and costs; filing
of roll
Sec. 22. (a) The appraisers shall make an assessment of the
following:
(1) The special benefits and damages, if any, that will accrue to
each parcel of real property from the construction of the
proposed improvement.
(2) The benefits, if any, that will accrue to the municipality
generally from the construction of the proposed improvement.
(b) The appraisers shall file with the municipal works board a
copy of the roll of all owners of real property and of the municipality
generally. The copy must:
(1) be signed by all three (3) appraisers;
(2) show the assessment of benefits and damages; and
(3) be filed by the appraisers with the works board not later than
thirty (30) days after appointment of the appraisers, unless the
board extends the time. As added by P.L.98-1993, SEC.9.
IC 36-9-38-23 Costs exceeding benefits; postponement of improvement;
reappraisement; deficiency supplied; bond
Sec. 23. (a) If the total of the assessed benefits, after deducting
assessed damages, does not equal or exceed the total estimated cost
of the improvement, further action may not be taken on the proposed
improvement until:
(1) a second assessment of benefits and damages has been
completed; or
(2) the petitioners, the municipality, or another source,
separately or jointly, undertakes to provide the deficiency.
(b) The municipal works board may request the original
appraisers to make the second assessment or may appoint three (3)
other qualified, disinterested appraisers to make the second
assessment. The second assessment shall be completed in the same
manner as the first assessment.
(c) If a second assessment of benefits, after deducting the
damages, does not equal or exceed the estimated cost of the
improvement, further action may not be taken on the proposed
improvement, unless the petitioners, the municipality, or another
source, separately or jointly, undertakes to provide the deficiency. If
the petitioners elect to provide the deficiency, further action may not
be taken upon the improvement until the petitioners file with the
works board a bond with adequate surety. The bond must be
conditioned on payment of the net balance of the actual cost of the
improvement over the total of the assessments after deducting
damages. As added by P.L.98-1993, SEC.9.
IC 36-9-38-23.5 Assessments; installment payments
Sec. 23.5. (a) With respect to assessments imposed after June 30,
2001, the works board shall establish a procedure to permit owners
of real property in the improvement district to elect whether to pay
assessments in:
(1) one (1), five (5), ten (10), fifteen (15), or twenty (20) annual
installments; or
(2) a number of monthly installments that corresponds to one
(1), five (5), ten (10), fifteen (15), or twenty (20) installments.
(b) The works board shall establish the timing of the election
under subsection (a) to permit the works board to structure the
maturities of the principal of the bonds in a number of annual series
that is consistent with the installment periods elected by owners of
real property under subsection (a). As added by P.L.62-2001, SEC.8.
IC 36-9-38-24 Final determination of costs; revised assessment
Sec. 24. (a) The municipal works board may, with the approval of
the municipal legislative body, determine all of the following:
(1) Whether the benefits assessed against the municipality are
proper and should be paid.
(2) Whether the municipality should pay a part of the cost of the
improvement regardless of benefits assessed.
(b) An amount of benefits or costs to be paid by the municipality
may be paid:
(1) out of the money of the municipality appropriated to the use
of the works board for such an improvement; or
(2) through the issuance of bonds of the municipality.
(c) The notice of hearing required by section 26 of this chapter
shall be given after the cost of the improvement has been finally
determined by the works board through firm bids or contracts and
firm estimates for other costs.
(d) If the finally determined cost of the improvement exceeds the
total of:
(1) the benefits assessed, less damages assessed; and
(2) the contributions of the petitioners, the municipality, and
other sources;
the works board shall direct the appraisers to review the assessments
and submit a revised assessment list.
(e) The notice of hearing shall be given only after the works board
determines that the money available from all sources is adequate to
cover the total cost of the improvement, including all costs that are
to be reimbursed under section 18(c) of this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-25 Appraisers; qualification for appointment
Sec. 25. A person appointed as an appraiser under this chapter
must be:
(1) a disinterested licensed real estate broker; or
(2) a disinterested licensed appraiser under IC 25-34.1. As added by P.L.98-1993, SEC.9. Amended by P.L.113-2006,
SEC.22.
IC 36-9-38-26 Notice of proposed assessments to property owners; contents
Sec. 26. (a) Promptly after completion of all of the following, the
municipal works board shall mail a notice, first class postage
prepaid, to each owner of real property to be assessed:
(1) The filing of an adequate assessment.
(2) The determination of the cost of the improvement.
(3) The determination that adequate money will be available.
(b) The notices shall be mailed not later than twenty-one (21) days
before the hearing date and must do all of the following:
(1) Set forth the amount of the proposed assessment.
(2) State that the proposed assessment on each parcel of real
property in the district is on file and can be seen in the office of
the works board.
(3) Set forth the date and time the works board will, at the
works board's office, do the following:
(A) Receive written remonstrances against the assessments.
(B) Hear all owners of assessed real property who have filed
written remonstrances before the date fixed for the hearing.
(c) The notices to the owners may be mailed to the owners' names
and addresses appearing on the tax duplicates in the records of the
county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-27 Proposed assessments; written remonstrances; hearings;
assessment roll; deficiency of funds
Sec. 27. (a) At the hearing fixed under section 26 of this chapter,
the municipal works board shall hear all owners of assessed real
property who have filed written remonstrances before the date of the
hearing. The hearing may be continued from time to time without
further notice, as necessary to hear the owners.
(b) The works board shall make a determination increasing,
decreasing, or confirming each assessment by setting opposite each
name, parcel, and appraisers' assessment on the assessment roll the
amount of the assessment as determined by the works board. If the
total of the assessments exceeds the amount needed, the works board
shall make a pro rata reduction in each assessment.
(c) The signing of the assessment roll by a majority of the
members of the works board and the delivery of the roll to the
municipal fiscal officer constitute a final and conclusive
determination of the benefits or damages assessed. However, a
person may appeal the determination if:
(1) the person had previously filed a written remonstrance under
this section; or
(2) the person's assessment was increased above the amount
fixed by the appraisers.
(d) An appeal must be made in the manner prescribed by
IC 34-13-6.
(e) If the final determination of the works board causes the total
of the money available to be inadequate to cover the cost of the
improvement, the deficiency may be supplied in the manner provided
by section 24 of this chapter. As added by P.L.98-1993, SEC.9. Amended by P.L.1-1998, SEC.218.
IC 36-9-38-28 Lien of assessment
Sec. 28. Each assessment levied under this chapter (or under
IC 36-9-20 before its repeal in 1993) is a lien on the real property
assessed. This lien is second in priority only to taxes levied on the
property. As added by P.L.98-1993, SEC.9.
IC 36-9-38-29 Municipal assessment; manner of payment; other assessments;
payment in installments; interest
Sec. 29. (a) At the time the municipal works board determines the
amount of the assessments, the municipal works board shall also
determine the following:
(1) The manner in which the municipality shall pay the
municipality's assessment, if any.
(2) The number of monthly or annual installments over which
the other assessments will be paid.
(3) The maximum rate of interest on the installments, which
may be equal to or greater than the interest rate on bonds issued
under section 30 of this chapter.
(b) The works board shall certify the determination under
subsection (a) to the municipal fiscal officer. This certification must
accompany the assessment roll. As added by P.L.98-1993, SEC.9. Amended by P.L.62-2001, SEC.9.
IC 36-9-38-30 Bonds
Sec. 30. (a) For the purposes of anticipating the collection of
assessments under this chapter, the municipality shall issue bonds
payable out of the assessments. However, a consolidated city is not
required to issue bonds under this section.
(b) The terms of the bonds may allow early retirement of the
bonds for and to the extent of prepayment of assessments in
anticipation of which the bonds were issued.
(c) The bonds bear interest at a rate or rates determined by the
legislative body of the municipality and shall be executed, sold, and
delivered in denominations determined to be appropriate by the
municipal fiscal officer as bonds of a municipality are executed, sold,
and delivered.
(d) If the bonds are sold at a public sale, the advertisement of the
sale of the bonds shall be published in accordance with IC 5-3-1. The
municipality may also sell the bonds by negotiated private sale to a
financial institution.
(e) Unless the municipality chooses to sell the bonds by a
negotiated private sale to a financial institution, the sale shall be
made to the highest and best bidder, as provided in IC 36-9-36.
However, the sale may not be for less than the face value of the
bonds, plus interest from the date of the bonds to the date of delivery.
(f) The bonds and interest on the bonds are exempt from taxation
to the extent provided by IC 6-8-5-1.
(g) The bonds are not a corporate obligation or an indebtedness of
the municipality and are payable only out of money actually paid and
collected under this chapter (or under IC 36-9-20 before its repeal in
1993). The bonds must state this fact on the bonds' face. As added by P.L.98-1993, SEC.9. Amended by P.L.62-2001, SEC.10.
IC 36-9-38-31 Fees for use of improvement; changes; hearing upon petition in
cases of certain changes
Sec. 31. (a) At or before the completion of the assessment roll, the
municipal works board may do either of the following:
(1) Adopt a schedule of fees for the use of an improvement.
(2) Determine that the use of the improvement will be free.
(b) Fees established under subsection (a) may be reduced,
eliminated, increased, or added to by the works board without a
hearing, but only to reflect increased or decreased costs of operation
and maintenance.
(c) Any other changes in the fees established shall be made only
after a hearing for that purpose is petitioned for by the owners of
property originally assessed for at least ten percent (10%) of the cost
of the improvement.
(d) If a petition is filed with the works board under subsection (c),
notice of a hearing shall be given to all owners of property in the
improvement district. The notice may be mailed to the owners at the
owners' names and addresses appearing in the records of the official
charged with the duty of collecting the assessments. The notice must:
(1) state the date, time, place, and purpose of the hearing; and
(2) be addressed and mailed at least ten (10) days before the
date of the hearing.
(e) The works board may not alter the fees at the hearing if the
owners of property originally assessed for more than fifty percent
(50%) of the total assessments object to the proposed change. As added by P.L.98-1993, SEC.9.
IC 36-9-38-32 Fees for use of improvement; excess revenues; payment of bonds
Sec. 32. If the fees established under section 31 of this chapter
produce net revenue in excess of reasonable costs of operation and
maintenance, the excess revenue shall be used to pay part of the
principal and interest on the bonds issued as the bonds mature. To
the extent that principal and interest is paid from the excess revenue,
the assessments shall be reduced and canceled on a pro rata basis. As added by P.L.98-1993, SEC.9.
IC 36-9-38-33 Fees for use of improvement; amount limitation following
retirement of bonds
Sec. 33. After the bonds are retired, the fees established under
section 31 of this chapter may not be greater than is necessary to pay
for the reasonable costs of operation and maintenance of the
improvement. As added by P.L.98-1993, SEC.9.
IC 36-9-38
Chapter 38. Barrett Law Funding for Municipal Improvement
Districts
IC 36-9-38-1 Application of chapter
Sec. 1. This chapter applies to all municipalities. As added by P.L.98-1993, SEC.9.
IC 36-9-38-2 Permissible improvements
Sec. 2. The following improvements may be made under this
chapter:
(1) Sidewalks.
(2) Streets.
(3) Pedestrian ways or malls that are set aside entirely or partly,
or during restricted hours, for pedestrian rather than vehicular
traffic.
(4) Parking facilities.
(5) Lighting.
(6) Electric signals.
(7) Landscaping, including trees, shrubbery, flowers, grass,
fountains, benches, statues, floodlighting, gaslighting, and
structures of a decorative, an educational, or a historical nature.
(8) Emergency warning systems. As added by P.L.98-1993, SEC.9. Amended by P.L.42-2006, SEC.3.
IC 36-9-38-3 Improvement to be owned, maintained, and operated by
municipality
Sec. 3. An improvement constructed under this chapter shall be
owned, maintained, and operated by the municipality under the
direction of the municipal works board. As added by P.L.98-1993, SEC.9.
IC 36-9-38-4 Application of statutes relating to planning and zoning, building
codes, and restrictions on use of property
Sec. 4. The statutes relating to planning and zoning, building
codes, and restrictions on the use of property apply to an
improvement under this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-5 Application of IC 36-9-36 and IC 36-9-37
Sec. 5. To the extent they are not in conflict with this chapter, all
the provisions of IC 36-9-36 and IC 36-9-37 apply to proceedings
under this chapter. As added by P.L.98-1993, SEC.9. IC 36-9-38-6 Persons having the same rights and powers as the owner of fee
simple title
Sec. 6. For purposes of this chapter, the following persons have
the same rights and powers as the owner of the fee simple title to a
parcel of real property:
(1) The legal or authorized representative of the owner.
(2) A person obligated under a written instrument to pay an
assessment against the property under this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-7 Petition to establish district
Sec. 7. (a) A petition for the establishment of an improvement
district under this chapter may be filed with the works board of a
municipality by any of the following:
(1) An association established under section 8 of this chapter.
(2) The owners of at least twenty-five percent (25%) of the
parcels of real property in the proposed improvement district if
an association has not been formed under section 8 of this
chapter.
(b) A petition filed under this section by an association must be
signed by a majority of the association's directors.
(c) A petition filed under this section must set forth all of the
following:
(1) The boundaries of the proposed improvement district,
including all of the real property that the petitioners believe will
be specially benefited or damaged by the proposed
improvement.
(2) The location and a general description of the proposed
improvement.
(3) The estimated cost of the proposed improvement.
(4) As part of the petition or as an accompanying exhibit, the
names and addresses of all the owners of real property within
the boundaries of the proposed improvement district as the
names and addresses are listed on the tax duplicates in the
records of the county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-8 Association of owners of property affected by proposed
improvement; requirements for establishment
Sec. 8. At least fifteen (15) persons may establish an association
for purposes of this chapter if the persons are the owners of the
following:
(1) At least fifteen (15) separate parcels of real property.
(2) At least twenty percent (20%) of the surface area of the real
property affected by a proposed improvement under this
chapter. As added by P.L.98-1993, SEC.9. IC 36-9-38-9 Association established under IC 36-9-38-8; articles of association;
filing and recording; powers
Sec. 9. (a) The persons establishing an association under section
8 of this chapter must sign and acknowledge written articles of
association specifying the following:
(1) The name of the association.
(2) The purposes of the association, which must be limited to
the purposes of this chapter.
(3) The names and addresses of the initial members.
(4) The principal office of the association.
(5) The name of the agent for purposes of communications and
service of process.
(6) The term of existence of the association, which may be
perpetual.
(7) The number of directors, which may not be less than three
(3) or more than eleven (11).
(8) The amount of any membership fee and any annual dues.
(9) The area affected by any proposed improvements included
within the purposes of the association.
(10) The square footage of the area affected by the proposed
improvement.
(11) The square footage of the area affected by the proposed
improvement included within the association.
(12) Any other provisions that the initial members consider
desirable and that are not inconsistent with this chapter.
(b) The association shall file a copy of the articles of association,
signed and acknowledged by all of the initial members, with the
works board of the municipality in which the affected area is located.
A copy of the articles of association shall be recorded in the office
of the recorder of the county within which the area is located.
(c) An association formed under this chapter (or under IC 36-9-20
before its repeal in 1993) is a nonprofit corporate body and may do
the following:
(1) Enter into contracts.
(2) Hold, convey, and transfer property.
(3) Sue and be sued. As added by P.L.98-1993, SEC.9.
IC 36-9-38-10 Association established under IC 36-9-38-8; notice; meeting
Sec. 10. (a) Not later than ninety (90) days after the filing and
recording of the articles of association, the association shall hold a
meeting of all owners of real property in the area described in the
articles for the purpose of electing directors of the association.
(b) At least twenty (20) days before the meeting, notice of the
meeting shall be mailed, first class postage prepaid, to all owners of
real property in the area described in the articles of association. The
notice must set forth the following:
(1) The time and place of the meeting.
(2) The purpose of the meeting.
(3) A general description of the nature and object of the
association.
(4) The amount of any membership fee and any annual dues.
(5) Notice that an owner of real property may become a member
of the association and be eligible to vote in the meeting, either
in person or by authorized agent or attorney, by doing the
following:
(A) Signing a copy of the articles of association at any time
before the commencement of the meeting.
(B) Paying the membership fee, if any, and the dues for the
first year, if any.
(c) The notice under subsection (b) may be mailed to the owners
of real property at the owners' addresses appearing upon the tax
duplicates in the records of the county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-11 Association established under IC 36-9-38-8; directors; bylaws
Sec. 11. (a) The directors of the association must be:
(1) members of the association; and
(2) owners of real property in the affected area.
(b) The directors elected under section 10 of this chapter serve
until the next annual meeting and until the directors' successors are
elected and qualified.
(c) The directors shall approve bylaws of the association. The
following apply to the bylaws of the association:
(1) The bylaws may be amended.
(2) The bylaws may provide for officers of the association to be
elected annually by the directors.
(3) The bylaws may contain any other provisions that are
desirable for the conduct of the affairs of the association. As added by P.L.98-1993, SEC.9.
IC 36-9-38-12 Association established under IC 36-9-38-8; articles; amendment;
property owners subsequently becoming members
Sec. 12. (a) The articles of association may be amended upon the
recommendation of the directors and the approval of two-thirds (2/3)
of all members of the association at a meeting called for that purpose.
Amended articles must be signed and acknowledged by a majority of
the directors. A copy of all amendments shall be filed with the
municipal works board and recorded in the office of the county
recorder.
(b) A copy of the articles of association, with any amendments,
shall be kept available at the office of the agent of the association
during regular business hours for signature by an owner of real
property who desires to become a member of the association by
signing the copy and by paying any membership fee and any annual
dues.
As added by P.L.98-1993, SEC.9.
IC 36-9-38-13 Notice of hearing on establishment of district
Sec. 13. (a) Upon the filing of a petition under section 7 of this
chapter, the municipal works board shall fix a date for a hearing on
the establishment of the proposed improvement district. At least
twenty-one (21) days before the date fixed for the hearing, the
petitioners shall have a notice mailed to all owners of real property
within the proposed improvement district. The notice may be mailed
to the owners of real property at the owners' addresses appearing
upon the tax duplicates in the records of the county auditor.
(b) The petitioners shall publish a notice of the hearing and the
date, place, and time of the hearing in accordance with IC 5-3-1.
(c) The notice to be published and mailed must do the following:
(1) Contain a general description of the contents of the petition.
(2) Specifically set forth the boundaries of the proposed district.
(3) State that all of the property in the proposed district will be
assessed benefits or damages under this chapter for the
proposed improvement.
(4) State that at the hearing all owners of real property within
the proposed improvement district or the owners'
representatives may be heard upon the question of the
establishment of the district.
(d) Proof of service shall be made by affidavit of the person or
persons causing service to be made. As added by P.L.98-1993, SEC.9.
IC 36-9-38-14 Petition in opposition to district; termination of proceedings
Sec. 14. (a) The owners of real property located in a proposed
improvement district may remonstrate against the establishment of
that district by filing a petition with the municipal works board. The
county auditor shall verify the signatures on the petition.
(b) If the number of valid signatures equals or exceeds fifty-one
percent (51%) of the owners of real property in the proposed
improvement district, the works board shall cease the works board's
proceedings to establish the improvement district. As added by P.L.98-1993, SEC.9.
IC 36-9-38-15 Conduct of hearing; resolution
Sec. 15. (a) At the hearing fixed under section 13 of this chapter,
the municipal works board shall hear all owners of real property in
the proposed improvement district who appear and request to be
heard upon the following questions:
(1) The sufficiency of the petition and notice.
(2) Whether the proposed improvement is of public utility and
benefit.
(3) Whether all of the probable benefits of the proposed
improvement, including the benefits to the municipality
generally, will equal or exceed the estimated cost of the
improvement.
(4) Whether the improvement district contains all, more than
all, or less than all of the property specially benefited or
damaged by the proposed improvement.
(b) The hearing under subsection (a) may be adjourned
periodically without further notice. After the completion of the
hearing, the works board shall adopt a resolution determining
whether the following conditions have been met:
(1) The petition is sufficient.
(2) The required notice was given.
(3) The proposed improvements are of public utility and
benefit.
(4) All of the probable benefits of the proposed improvement
will equal or exceed the estimated cost of the proposed
improvement.
(5) The proposed improvement district contains all, more than
all, or less than all of the property specially benefited or
damaged by the proposed improvement.
(c) The works board shall establish the improvement district with
the boundaries described in the petition if the works board does the
following:
(1) Answers the questions in subsection (b)(1) through (b)(4)
affirmatively.
(2) Determines that the proposed improvement district contains
all of the property specially benefited or damaged.
(d) If the works board answers any of the first four (4) questions
negatively, the works board may:
(1) allow amendments and the issuance of additional notice and
may hold further proceedings; or
(2) dismiss the petition without prejudice to the right to file a
new petition. As added by P.L.98-1993, SEC.9.
IC 36-9-38-16 Hearing; determination that petition includes property not
specially benefited; further proceedings
Sec. 16. (a) If the works board determines that property not
specially benefited or damaged has been included within boundaries
described in the petition, the works board shall do the following:
(1) Redefine the boundaries of the district and include in the
works board's resolution only the property that is specially
benefited or damaged.
(2) Establish the district with the boundaries as redefined.
(b) The works board shall fix a date for a further hearing if the
works board determines that:
(1) less than all of the property specially benefited or damaged
has been included within the boundaries described in the
petition; or
(2) less than all of the property specially benefited or damaged
has been included within the boundaries described in the
petition and some property that is not specially benefited or
damaged has been included.
(c) Notice of the further hearing, describing the proposed revised
boundaries, shall be given in the manner prescribed by section 13 of
this chapter. However, notice by mail shall be given only to the
owners of real property in an area that is proposed to be added to the
district and that was not included in the initial petition.
(d) At the further hearing, all owners of real property within the
proposed district boundaries or the owners' representatives are
entitled to be heard. The works board shall then adopt a resolution on
the establishment of the district. As added by P.L.98-1993, SEC.9.
IC 36-9-38-17 Resolution establishing improvement district; recitations; notice to
property owners; finality; recording; appeal
Sec. 17. (a) A resolution establishing an improvement district
must also recite the following:
(1) That all real property within the district is subject to
assessment of special benefits and damages by appraisers to be
appointed by the municipal works board.
(2) That the assessments are subject to review in a hearing
before the works board.
(b) The works board's resolution is considered notice to all
property owners who have appeared or who have been notified of the
proceedings that the owners' property is subject to an assessment of
special benefits and damages under this chapter. Further notice or
hearing is not required, except as provided by section 26 of this
chapter.
(c) The resolution of the works board:
(1) is final and conclusive; and
(2) may not be challenged unless an appeal is made under
subsection (e).
(d) A copy of the resolution establishing an improvement district,
certified by the municipal clerk, shall be recorded in the
miscellaneous records in the office of the recorder of the county in
which the municipality is located.
(e) A person aggrieved by the adoption of a resolution
establishing an improvement district may appeal in the manner
prescribed by IC 34-13-6. As added by P.L.98-1993, SEC.9. Amended by P.L.1-1998, SEC.217.
IC 36-9-38-18 Plans, specifications, and cost estimates
Sec. 18. (a) Upon adoption of a resolution establishing an
improvement district, the petitioners for the district shall submit any
plans, specifications, and estimates of the cost of the proposed
improvement that the petitioners have prepared to the municipal
works board for review and approval.
(b) If the petitioners have not prepared plans and specifications,
the works board shall have plans, specifications, and estimates of the
cost of the proposed improvement prepared. For the purpose of
preparing plans, specifications, and estimates of cost, the works
board may employ architects, engineers, and other necessary
consultants without an appropriation. The petitioners may advance
money for this employment, subject to reimbursement, or the
municipality may advance money on the approval of the municipal
legislative body from unappropriated funds without an appropriation,
also subject to reimbursement.
(c) Estimates of costs prepared under this section must include the
following:
(1) Architectural, appraisal, consultant, engineering, legal,
supervision, and other professional fees.
(2) The cost of plans and specifications, including amounts to
be reimbursed under subsection (b).
(3) Construction costs, including the cost of land, material, and
labor.
(4) All other related and incidental expenses. As added by P.L.98-1993, SEC.9.
IC 36-9-38-19 Eminent domain; vacation of streets and alleys; property owned by
government entities
Sec. 19. (a) If:
(1) an improvement under this chapter requires the acquisition
of property or property rights; and
(2) the acquisition cannot be made through the assessment
proceedings established by this chapter;
the municipality may proceed by eminent domain.
(b) The eminent domain proceeding shall be conducted in the
manner provided by the statutes applicable to acquisition of property
by the municipality for public purposes. Any property or property
rights acquired belong to the municipality.
(c) If it is necessary to vacate streets or alleys, the vacation shall
be made in the manner provided by statute.
(d) Any property owned by the municipality or another
governmental entity may be made available for any public
improvement under this chapter, without charge. As added by P.L.98-1993, SEC.9.
IC 36-9-38-20 Letting of construction contracts; actions to enjoin performance;
limitations
Sec. 20. (a) All contracts for construction of an improvement
under this chapter shall be let by the municipal works board after
advertisement as required for other contracts.
(b) All statutes applicable to the letting and performance of other
contracts apply to contracts under this chapter.
(c) The validity of a contract entered into under this chapter may
not be questioned, except in an action to enjoin performance. The
action must be brought not later than fifteen (15) days from the
execution of the contract. If the action is not brought within the
fifteen (15) day period, the contract is valid, conclusive, and binding
upon all persons. As added by P.L.98-1993, SEC.9.
IC 36-9-38-21 Appointment of appraisers to assess benefits and costs
Sec. 21. (a) After the municipal works board approves plans and
specifications for an improvement under this chapter, the works
board shall appoint three (3) disinterested persons as appraisers to
examine the following:
(1) The plans, specifications, and estimates of the cost of the
proposed improvement.
(2) The real property within the improvement district.
(b) Upon request from the appraisers or the petitioners, the works
board may do the following:
(1) Retain or employ qualified personnel to provide necessary
technical or consulting assistance.
(2) Supply the appraisers with information that will assist the
appraisers in making the assessment under section 22 of this
chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-22 Appointment of appraisers; assessment of benefits and costs; filing
of roll
Sec. 22. (a) The appraisers shall make an assessment of the
following:
(1) The special benefits and damages, if any, that will accrue to
each parcel of real property from the construction of the
proposed improvement.
(2) The benefits, if any, that will accrue to the municipality
generally from the construction of the proposed improvement.
(b) The appraisers shall file with the municipal works board a
copy of the roll of all owners of real property and of the municipality
generally. The copy must:
(1) be signed by all three (3) appraisers;
(2) show the assessment of benefits and damages; and
(3) be filed by the appraisers with the works board not later than
thirty (30) days after appointment of the appraisers, unless the
board extends the time. As added by P.L.98-1993, SEC.9.
IC 36-9-38-23 Costs exceeding benefits; postponement of improvement;
reappraisement; deficiency supplied; bond
Sec. 23. (a) If the total of the assessed benefits, after deducting
assessed damages, does not equal or exceed the total estimated cost
of the improvement, further action may not be taken on the proposed
improvement until:
(1) a second assessment of benefits and damages has been
completed; or
(2) the petitioners, the municipality, or another source,
separately or jointly, undertakes to provide the deficiency.
(b) The municipal works board may request the original
appraisers to make the second assessment or may appoint three (3)
other qualified, disinterested appraisers to make the second
assessment. The second assessment shall be completed in the same
manner as the first assessment.
(c) If a second assessment of benefits, after deducting the
damages, does not equal or exceed the estimated cost of the
improvement, further action may not be taken on the proposed
improvement, unless the petitioners, the municipality, or another
source, separately or jointly, undertakes to provide the deficiency. If
the petitioners elect to provide the deficiency, further action may not
be taken upon the improvement until the petitioners file with the
works board a bond with adequate surety. The bond must be
conditioned on payment of the net balance of the actual cost of the
improvement over the total of the assessments after deducting
damages. As added by P.L.98-1993, SEC.9.
IC 36-9-38-23.5 Assessments; installment payments
Sec. 23.5. (a) With respect to assessments imposed after June 30,
2001, the works board shall establish a procedure to permit owners
of real property in the improvement district to elect whether to pay
assessments in:
(1) one (1), five (5), ten (10), fifteen (15), or twenty (20) annual
installments; or
(2) a number of monthly installments that corresponds to one
(1), five (5), ten (10), fifteen (15), or twenty (20) installments.
(b) The works board shall establish the timing of the election
under subsection (a) to permit the works board to structure the
maturities of the principal of the bonds in a number of annual series
that is consistent with the installment periods elected by owners of
real property under subsection (a). As added by P.L.62-2001, SEC.8.
IC 36-9-38-24 Final determination of costs; revised assessment
Sec. 24. (a) The municipal works board may, with the approval of
the municipal legislative body, determine all of the following:
(1) Whether the benefits assessed against the municipality are
proper and should be paid.
(2) Whether the municipality should pay a part of the cost of the
improvement regardless of benefits assessed.
(b) An amount of benefits or costs to be paid by the municipality
may be paid:
(1) out of the money of the municipality appropriated to the use
of the works board for such an improvement; or
(2) through the issuance of bonds of the municipality.
(c) The notice of hearing required by section 26 of this chapter
shall be given after the cost of the improvement has been finally
determined by the works board through firm bids or contracts and
firm estimates for other costs.
(d) If the finally determined cost of the improvement exceeds the
total of:
(1) the benefits assessed, less damages assessed; and
(2) the contributions of the petitioners, the municipality, and
other sources;
the works board shall direct the appraisers to review the assessments
and submit a revised assessment list.
(e) The notice of hearing shall be given only after the works board
determines that the money available from all sources is adequate to
cover the total cost of the improvement, including all costs that are
to be reimbursed under section 18(c) of this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-25 Appraisers; qualification for appointment
Sec. 25. A person appointed as an appraiser under this chapter
must be:
(1) a disinterested licensed real estate broker; or
(2) a disinterested licensed appraiser under IC 25-34.1. As added by P.L.98-1993, SEC.9. Amended by P.L.113-2006,
SEC.22.
IC 36-9-38-26 Notice of proposed assessments to property owners; contents
Sec. 26. (a) Promptly after completion of all of the following, the
municipal works board shall mail a notice, first class postage
prepaid, to each owner of real property to be assessed:
(1) The filing of an adequate assessment.
(2) The determination of the cost of the improvement.
(3) The determination that adequate money will be available.
(b) The notices shall be mailed not later than twenty-one (21) days
before the hearing date and must do all of the following:
(1) Set forth the amount of the proposed assessment.
(2) State that the proposed assessment on each parcel of real
property in the district is on file and can be seen in the office of
the works board.
(3) Set forth the date and time the works board will, at the
works board's office, do the following:
(A) Receive written remonstrances against the assessments.
(B) Hear all owners of assessed real property who have filed
written remonstrances before the date fixed for the hearing.
(c) The notices to the owners may be mailed to the owners' names
and addresses appearing on the tax duplicates in the records of the
county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-27 Proposed assessments; written remonstrances; hearings;
assessment roll; deficiency of funds
Sec. 27. (a) At the hearing fixed under section 26 of this chapter,
the municipal works board shall hear all owners of assessed real
property who have filed written remonstrances before the date of the
hearing. The hearing may be continued from time to time without
further notice, as necessary to hear the owners.
(b) The works board shall make a determination increasing,
decreasing, or confirming each assessment by setting opposite each
name, parcel, and appraisers' assessment on the assessment roll the
amount of the assessment as determined by the works board. If the
total of the assessments exceeds the amount needed, the works board
shall make a pro rata reduction in each assessment.
(c) The signing of the assessment roll by a majority of the
members of the works board and the delivery of the roll to the
municipal fiscal officer constitute a final and conclusive
determination of the benefits or damages assessed. However, a
person may appeal the determination if:
(1) the person had previously filed a written remonstrance under
this section; or
(2) the person's assessment was increased above the amount
fixed by the appraisers.
(d) An appeal must be made in the manner prescribed by
IC 34-13-6.
(e) If the final determination of the works board causes the total
of the money available to be inadequate to cover the cost of the
improvement, the deficiency may be supplied in the manner provided
by section 24 of this chapter. As added by P.L.98-1993, SEC.9. Amended by P.L.1-1998, SEC.218.
IC 36-9-38-28 Lien of assessment
Sec. 28. Each assessment levied under this chapter (or under
IC 36-9-20 before its repeal in 1993) is a lien on the real property
assessed. This lien is second in priority only to taxes levied on the
property. As added by P.L.98-1993, SEC.9.
IC 36-9-38-29 Municipal assessment; manner of payment; other assessments;
payment in installments; interest
Sec. 29. (a) At the time the municipal works board determines the
amount of the assessments, the municipal works board shall also
determine the following:
(1) The manner in which the municipality shall pay the
municipality's assessment, if any.
(2) The number of monthly or annual installments over which
the other assessments will be paid.
(3) The maximum rate of interest on the installments, which
may be equal to or greater than the interest rate on bonds issued
under section 30 of this chapter.
(b) The works board shall certify the determination under
subsection (a) to the municipal fiscal officer. This certification must
accompany the assessment roll. As added by P.L.98-1993, SEC.9. Amended by P.L.62-2001, SEC.9.
IC 36-9-38-30 Bonds
Sec. 30. (a) For the purposes of anticipating the collection of
assessments under this chapter, the municipality shall issue bonds
payable out of the assessments. However, a consolidated city is not
required to issue bonds under this section.
(b) The terms of the bonds may allow early retirement of the
bonds for and to the extent of prepayment of assessments in
anticipation of which the bonds were issued.
(c) The bonds bear interest at a rate or rates determined by the
legislative body of the municipality and shall be executed, sold, and
delivered in denominations determined to be appropriate by the
municipal fiscal officer as bonds of a municipality are executed, sold,
and delivered.
(d) If the bonds are sold at a public sale, the advertisement of the
sale of the bonds shall be published in accordance with IC 5-3-1. The
municipality may also sell the bonds by negotiated private sale to a
financial institution.
(e) Unless the municipality chooses to sell the bonds by a
negotiated private sale to a financial institution, the sale shall be
made to the highest and best bidder, as provided in IC 36-9-36.
However, the sale may not be for less than the face value of the
bonds, plus interest from the date of the bonds to the date of delivery.
(f) The bonds and interest on the bonds are exempt from taxation
to the extent provided by IC 6-8-5-1.
(g) The bonds are not a corporate obligation or an indebtedness of
the municipality and are payable only out of money actually paid and
collected under this chapter (or under IC 36-9-20 before its repeal in
1993). The bonds must state this fact on the bonds' face. As added by P.L.98-1993, SEC.9. Amended by P.L.62-2001, SEC.10.
IC 36-9-38-31 Fees for use of improvement; changes; hearing upon petition in
cases of certain changes
Sec. 31. (a) At or before the completion of the assessment roll, the
municipal works board may do either of the following:
(1) Adopt a schedule of fees for the use of an improvement.
(2) Determine that the use of the improvement will be free.
(b) Fees established under subsection (a) may be reduced,
eliminated, increased, or added to by the works board without a
hearing, but only to reflect increased or decreased costs of operation
and maintenance.
(c) Any other changes in the fees established shall be made only
after a hearing for that purpose is petitioned for by the owners of
property originally assessed for at least ten percent (10%) of the cost
of the improvement.
(d) If a petition is filed with the works board under subsection (c),
notice of a hearing shall be given to all owners of property in the
improvement district. The notice may be mailed to the owners at the
owners' names and addresses appearing in the records of the official
charged with the duty of collecting the assessments. The notice must:
(1) state the date, time, place, and purpose of the hearing; and
(2) be addressed and mailed at least ten (10) days before the
date of the hearing.
(e) The works board may not alter the fees at the hearing if the
owners of property originally assessed for more than fifty percent
(50%) of the total assessments object to the proposed change. As added by P.L.98-1993, SEC.9.
IC 36-9-38-32 Fees for use of improvement; excess revenues; payment of bonds
Sec. 32. If the fees established under section 31 of this chapter
produce net revenue in excess of reasonable costs of operation and
maintenance, the excess revenue shall be used to pay part of the
principal and interest on the bonds issued as the bonds mature. To
the extent that principal and interest is paid from the excess revenue,
the assessments shall be reduced and canceled on a pro rata basis. As added by P.L.98-1993, SEC.9.
IC 36-9-38-33 Fees for use of improvement; amount limitation following
retirement of bonds
Sec. 33. After the bonds are retired, the fees established under
section 31 of this chapter may not be greater than is necessary to pay
for the reasonable costs of operation and maintenance of the
improvement. As added by P.L.98-1993, SEC.9.
IC 36-9-38
Chapter 38. Barrett Law Funding for Municipal Improvement
Districts
IC 36-9-38-1 Application of chapter
Sec. 1. This chapter applies to all municipalities. As added by P.L.98-1993, SEC.9.
IC 36-9-38-2 Permissible improvements
Sec. 2. The following improvements may be made under this
chapter:
(1) Sidewalks.
(2) Streets.
(3) Pedestrian ways or malls that are set aside entirely or partly,
or during restricted hours, for pedestrian rather than vehicular
traffic.
(4) Parking facilities.
(5) Lighting.
(6) Electric signals.
(7) Landscaping, including trees, shrubbery, flowers, grass,
fountains, benches, statues, floodlighting, gaslighting, and
structures of a decorative, an educational, or a historical nature.
(8) Emergency warning systems. As added by P.L.98-1993, SEC.9. Amended by P.L.42-2006, SEC.3.
IC 36-9-38-3 Improvement to be owned, maintained, and operated by
municipality
Sec. 3. An improvement constructed under this chapter shall be
owned, maintained, and operated by the municipality under the
direction of the municipal works board. As added by P.L.98-1993, SEC.9.
IC 36-9-38-4 Application of statutes relating to planning and zoning, building
codes, and restrictions on use of property
Sec. 4. The statutes relating to planning and zoning, building
codes, and restrictions on the use of property apply to an
improvement under this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-5 Application of IC 36-9-36 and IC 36-9-37
Sec. 5. To the extent they are not in conflict with this chapter, all
the provisions of IC 36-9-36 and IC 36-9-37 apply to proceedings
under this chapter. As added by P.L.98-1993, SEC.9. IC 36-9-38-6 Persons having the same rights and powers as the owner of fee
simple title
Sec. 6. For purposes of this chapter, the following persons have
the same rights and powers as the owner of the fee simple title to a
parcel of real property:
(1) The legal or authorized representative of the owner.
(2) A person obligated under a written instrument to pay an
assessment against the property under this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-7 Petition to establish district
Sec. 7. (a) A petition for the establishment of an improvement
district under this chapter may be filed with the works board of a
municipality by any of the following:
(1) An association established under section 8 of this chapter.
(2) The owners of at least twenty-five percent (25%) of the
parcels of real property in the proposed improvement district if
an association has not been formed under section 8 of this
chapter.
(b) A petition filed under this section by an association must be
signed by a majority of the association's directors.
(c) A petition filed under this section must set forth all of the
following:
(1) The boundaries of the proposed improvement district,
including all of the real property that the petitioners believe will
be specially benefited or damaged by the proposed
improvement.
(2) The location and a general description of the proposed
improvement.
(3) The estimated cost of the proposed improvement.
(4) As part of the petition or as an accompanying exhibit, the
names and addresses of all the owners of real property within
the boundaries of the proposed improvement district as the
names and addresses are listed on the tax duplicates in the
records of the county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-8 Association of owners of property affected by proposed
improvement; requirements for establishment
Sec. 8. At least fifteen (15) persons may establish an association
for purposes of this chapter if the persons are the owners of the
following:
(1) At least fifteen (15) separate parcels of real property.
(2) At least twenty percent (20%) of the surface area of the real
property affected by a proposed improvement under this
chapter. As added by P.L.98-1993, SEC.9. IC 36-9-38-9 Association established under IC 36-9-38-8; articles of association;
filing and recording; powers
Sec. 9. (a) The persons establishing an association under section
8 of this chapter must sign and acknowledge written articles of
association specifying the following:
(1) The name of the association.
(2) The purposes of the association, which must be limited to
the purposes of this chapter.
(3) The names and addresses of the initial members.
(4) The principal office of the association.
(5) The name of the agent for purposes of communications and
service of process.
(6) The term of existence of the association, which may be
perpetual.
(7) The number of directors, which may not be less than three
(3) or more than eleven (11).
(8) The amount of any membership fee and any annual dues.
(9) The area affected by any proposed improvements included
within the purposes of the association.
(10) The square footage of the area affected by the proposed
improvement.
(11) The square footage of the area affected by the proposed
improvement included within the association.
(12) Any other provisions that the initial members consider
desirable and that are not inconsistent with this chapter.
(b) The association shall file a copy of the articles of association,
signed and acknowledged by all of the initial members, with the
works board of the municipality in which the affected area is located.
A copy of the articles of association shall be recorded in the office
of the recorder of the county within which the area is located.
(c) An association formed under this chapter (or under IC 36-9-20
before its repeal in 1993) is a nonprofit corporate body and may do
the following:
(1) Enter into contracts.
(2) Hold, convey, and transfer property.
(3) Sue and be sued. As added by P.L.98-1993, SEC.9.
IC 36-9-38-10 Association established under IC 36-9-38-8; notice; meeting
Sec. 10. (a) Not later than ninety (90) days after the filing and
recording of the articles of association, the association shall hold a
meeting of all owners of real property in the area described in the
articles for the purpose of electing directors of the association.
(b) At least twenty (20) days before the meeting, notice of the
meeting shall be mailed, first class postage prepaid, to all owners of
real property in the area described in the articles of association. The
notice must set forth the following:
(1) The time and place of the meeting.
(2) The purpose of the meeting.
(3) A general description of the nature and object of the
association.
(4) The amount of any membership fee and any annual dues.
(5) Notice that an owner of real property may become a member
of the association and be eligible to vote in the meeting, either
in person or by authorized agent or attorney, by doing the
following:
(A) Signing a copy of the articles of association at any time
before the commencement of the meeting.
(B) Paying the membership fee, if any, and the dues for the
first year, if any.
(c) The notice under subsection (b) may be mailed to the owners
of real property at the owners' addresses appearing upon the tax
duplicates in the records of the county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-11 Association established under IC 36-9-38-8; directors; bylaws
Sec. 11. (a) The directors of the association must be:
(1) members of the association; and
(2) owners of real property in the affected area.
(b) The directors elected under section 10 of this chapter serve
until the next annual meeting and until the directors' successors are
elected and qualified.
(c) The directors shall approve bylaws of the association. The
following apply to the bylaws of the association:
(1) The bylaws may be amended.
(2) The bylaws may provide for officers of the association to be
elected annually by the directors.
(3) The bylaws may contain any other provisions that are
desirable for the conduct of the affairs of the association. As added by P.L.98-1993, SEC.9.
IC 36-9-38-12 Association established under IC 36-9-38-8; articles; amendment;
property owners subsequently becoming members
Sec. 12. (a) The articles of association may be amended upon the
recommendation of the directors and the approval of two-thirds (2/3)
of all members of the association at a meeting called for that purpose.
Amended articles must be signed and acknowledged by a majority of
the directors. A copy of all amendments shall be filed with the
municipal works board and recorded in the office of the county
recorder.
(b) A copy of the articles of association, with any amendments,
shall be kept available at the office of the agent of the association
during regular business hours for signature by an owner of real
property who desires to become a member of the association by
signing the copy and by paying any membership fee and any annual
dues.
As added by P.L.98-1993, SEC.9.
IC 36-9-38-13 Notice of hearing on establishment of district
Sec. 13. (a) Upon the filing of a petition under section 7 of this
chapter, the municipal works board shall fix a date for a hearing on
the establishment of the proposed improvement district. At least
twenty-one (21) days before the date fixed for the hearing, the
petitioners shall have a notice mailed to all owners of real property
within the proposed improvement district. The notice may be mailed
to the owners of real property at the owners' addresses appearing
upon the tax duplicates in the records of the county auditor.
(b) The petitioners shall publish a notice of the hearing and the
date, place, and time of the hearing in accordance with IC 5-3-1.
(c) The notice to be published and mailed must do the following:
(1) Contain a general description of the contents of the petition.
(2) Specifically set forth the boundaries of the proposed district.
(3) State that all of the property in the proposed district will be
assessed benefits or damages under this chapter for the
proposed improvement.
(4) State that at the hearing all owners of real property within
the proposed improvement district or the owners'
representatives may be heard upon the question of the
establishment of the district.
(d) Proof of service shall be made by affidavit of the person or
persons causing service to be made. As added by P.L.98-1993, SEC.9.
IC 36-9-38-14 Petition in opposition to district; termination of proceedings
Sec. 14. (a) The owners of real property located in a proposed
improvement district may remonstrate against the establishment of
that district by filing a petition with the municipal works board. The
county auditor shall verify the signatures on the petition.
(b) If the number of valid signatures equals or exceeds fifty-one
percent (51%) of the owners of real property in the proposed
improvement district, the works board shall cease the works board's
proceedings to establish the improvement district. As added by P.L.98-1993, SEC.9.
IC 36-9-38-15 Conduct of hearing; resolution
Sec. 15. (a) At the hearing fixed under section 13 of this chapter,
the municipal works board shall hear all owners of real property in
the proposed improvement district who appear and request to be
heard upon the following questions:
(1) The sufficiency of the petition and notice.
(2) Whether the proposed improvement is of public utility and
benefit.
(3) Whether all of the probable benefits of the proposed
improvement, including the benefits to the municipality
generally, will equal or exceed the estimated cost of the
improvement.
(4) Whether the improvement district contains all, more than
all, or less than all of the property specially benefited or
damaged by the proposed improvement.
(b) The hearing under subsection (a) may be adjourned
periodically without further notice. After the completion of the
hearing, the works board shall adopt a resolution determining
whether the following conditions have been met:
(1) The petition is sufficient.
(2) The required notice was given.
(3) The proposed improvements are of public utility and
benefit.
(4) All of the probable benefits of the proposed improvement
will equal or exceed the estimated cost of the proposed
improvement.
(5) The proposed improvement district contains all, more than
all, or less than all of the property specially benefited or
damaged by the proposed improvement.
(c) The works board shall establish the improvement district with
the boundaries described in the petition if the works board does the
following:
(1) Answers the questions in subsection (b)(1) through (b)(4)
affirmatively.
(2) Determines that the proposed improvement district contains
all of the property specially benefited or damaged.
(d) If the works board answers any of the first four (4) questions
negatively, the works board may:
(1) allow amendments and the issuance of additional notice and
may hold further proceedings; or
(2) dismiss the petition without prejudice to the right to file a
new petition. As added by P.L.98-1993, SEC.9.
IC 36-9-38-16 Hearing; determination that petition includes property not
specially benefited; further proceedings
Sec. 16. (a) If the works board determines that property not
specially benefited or damaged has been included within boundaries
described in the petition, the works board shall do the following:
(1) Redefine the boundaries of the district and include in the
works board's resolution only the property that is specially
benefited or damaged.
(2) Establish the district with the boundaries as redefined.
(b) The works board shall fix a date for a further hearing if the
works board determines that:
(1) less than all of the property specially benefited or damaged
has been included within the boundaries described in the
petition; or
(2) less than all of the property specially benefited or damaged
has been included within the boundaries described in the
petition and some property that is not specially benefited or
damaged has been included.
(c) Notice of the further hearing, describing the proposed revised
boundaries, shall be given in the manner prescribed by section 13 of
this chapter. However, notice by mail shall be given only to the
owners of real property in an area that is proposed to be added to the
district and that was not included in the initial petition.
(d) At the further hearing, all owners of real property within the
proposed district boundaries or the owners' representatives are
entitled to be heard. The works board shall then adopt a resolution on
the establishment of the district. As added by P.L.98-1993, SEC.9.
IC 36-9-38-17 Resolution establishing improvement district; recitations; notice to
property owners; finality; recording; appeal
Sec. 17. (a) A resolution establishing an improvement district
must also recite the following:
(1) That all real property within the district is subject to
assessment of special benefits and damages by appraisers to be
appointed by the municipal works board.
(2) That the assessments are subject to review in a hearing
before the works board.
(b) The works board's resolution is considered notice to all
property owners who have appeared or who have been notified of the
proceedings that the owners' property is subject to an assessment of
special benefits and damages under this chapter. Further notice or
hearing is not required, except as provided by section 26 of this
chapter.
(c) The resolution of the works board:
(1) is final and conclusive; and
(2) may not be challenged unless an appeal is made under
subsection (e).
(d) A copy of the resolution establishing an improvement district,
certified by the municipal clerk, shall be recorded in the
miscellaneous records in the office of the recorder of the county in
which the municipality is located.
(e) A person aggrieved by the adoption of a resolution
establishing an improvement district may appeal in the manner
prescribed by IC 34-13-6. As added by P.L.98-1993, SEC.9. Amended by P.L.1-1998, SEC.217.
IC 36-9-38-18 Plans, specifications, and cost estimates
Sec. 18. (a) Upon adoption of a resolution establishing an
improvement district, the petitioners for the district shall submit any
plans, specifications, and estimates of the cost of the proposed
improvement that the petitioners have prepared to the municipal
works board for review and approval.
(b) If the petitioners have not prepared plans and specifications,
the works board shall have plans, specifications, and estimates of the
cost of the proposed improvement prepared. For the purpose of
preparing plans, specifications, and estimates of cost, the works
board may employ architects, engineers, and other necessary
consultants without an appropriation. The petitioners may advance
money for this employment, subject to reimbursement, or the
municipality may advance money on the approval of the municipal
legislative body from unappropriated funds without an appropriation,
also subject to reimbursement.
(c) Estimates of costs prepared under this section must include the
following:
(1) Architectural, appraisal, consultant, engineering, legal,
supervision, and other professional fees.
(2) The cost of plans and specifications, including amounts to
be reimbursed under subsection (b).
(3) Construction costs, including the cost of land, material, and
labor.
(4) All other related and incidental expenses. As added by P.L.98-1993, SEC.9.
IC 36-9-38-19 Eminent domain; vacation of streets and alleys; property owned by
government entities
Sec. 19. (a) If:
(1) an improvement under this chapter requires the acquisition
of property or property rights; and
(2) the acquisition cannot be made through the assessment
proceedings established by this chapter;
the municipality may proceed by eminent domain.
(b) The eminent domain proceeding shall be conducted in the
manner provided by the statutes applicable to acquisition of property
by the municipality for public purposes. Any property or property
rights acquired belong to the municipality.
(c) If it is necessary to vacate streets or alleys, the vacation shall
be made in the manner provided by statute.
(d) Any property owned by the municipality or another
governmental entity may be made available for any public
improvement under this chapter, without charge. As added by P.L.98-1993, SEC.9.
IC 36-9-38-20 Letting of construction contracts; actions to enjoin performance;
limitations
Sec. 20. (a) All contracts for construction of an improvement
under this chapter shall be let by the municipal works board after
advertisement as required for other contracts.
(b) All statutes applicable to the letting and performance of other
contracts apply to contracts under this chapter.
(c) The validity of a contract entered into under this chapter may
not be questioned, except in an action to enjoin performance. The
action must be brought not later than fifteen (15) days from the
execution of the contract. If the action is not brought within the
fifteen (15) day period, the contract is valid, conclusive, and binding
upon all persons. As added by P.L.98-1993, SEC.9.
IC 36-9-38-21 Appointment of appraisers to assess benefits and costs
Sec. 21. (a) After the municipal works board approves plans and
specifications for an improvement under this chapter, the works
board shall appoint three (3) disinterested persons as appraisers to
examine the following:
(1) The plans, specifications, and estimates of the cost of the
proposed improvement.
(2) The real property within the improvement district.
(b) Upon request from the appraisers or the petitioners, the works
board may do the following:
(1) Retain or employ qualified personnel to provide necessary
technical or consulting assistance.
(2) Supply the appraisers with information that will assist the
appraisers in making the assessment under section 22 of this
chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-22 Appointment of appraisers; assessment of benefits and costs; filing
of roll
Sec. 22. (a) The appraisers shall make an assessment of the
following:
(1) The special benefits and damages, if any, that will accrue to
each parcel of real property from the construction of the
proposed improvement.
(2) The benefits, if any, that will accrue to the municipality
generally from the construction of the proposed improvement.
(b) The appraisers shall file with the municipal works board a
copy of the roll of all owners of real property and of the municipality
generally. The copy must:
(1) be signed by all three (3) appraisers;
(2) show the assessment of benefits and damages; and
(3) be filed by the appraisers with the works board not later than
thirty (30) days after appointment of the appraisers, unless the
board extends the time. As added by P.L.98-1993, SEC.9.
IC 36-9-38-23 Costs exceeding benefits; postponement of improvement;
reappraisement; deficiency supplied; bond
Sec. 23. (a) If the total of the assessed benefits, after deducting
assessed damages, does not equal or exceed the total estimated cost
of the improvement, further action may not be taken on the proposed
improvement until:
(1) a second assessment of benefits and damages has been
completed; or
(2) the petitioners, the municipality, or another source,
separately or jointly, undertakes to provide the deficiency.
(b) The municipal works board may request the original
appraisers to make the second assessment or may appoint three (3)
other qualified, disinterested appraisers to make the second
assessment. The second assessment shall be completed in the same
manner as the first assessment.
(c) If a second assessment of benefits, after deducting the
damages, does not equal or exceed the estimated cost of the
improvement, further action may not be taken on the proposed
improvement, unless the petitioners, the municipality, or another
source, separately or jointly, undertakes to provide the deficiency. If
the petitioners elect to provide the deficiency, further action may not
be taken upon the improvement until the petitioners file with the
works board a bond with adequate surety. The bond must be
conditioned on payment of the net balance of the actual cost of the
improvement over the total of the assessments after deducting
damages. As added by P.L.98-1993, SEC.9.
IC 36-9-38-23.5 Assessments; installment payments
Sec. 23.5. (a) With respect to assessments imposed after June 30,
2001, the works board shall establish a procedure to permit owners
of real property in the improvement district to elect whether to pay
assessments in:
(1) one (1), five (5), ten (10), fifteen (15), or twenty (20) annual
installments; or
(2) a number of monthly installments that corresponds to one
(1), five (5), ten (10), fifteen (15), or twenty (20) installments.
(b) The works board shall establish the timing of the election
under subsection (a) to permit the works board to structure the
maturities of the principal of the bonds in a number of annual series
that is consistent with the installment periods elected by owners of
real property under subsection (a). As added by P.L.62-2001, SEC.8.
IC 36-9-38-24 Final determination of costs; revised assessment
Sec. 24. (a) The municipal works board may, with the approval of
the municipal legislative body, determine all of the following:
(1) Whether the benefits assessed against the municipality are
proper and should be paid.
(2) Whether the municipality should pay a part of the cost of the
improvement regardless of benefits assessed.
(b) An amount of benefits or costs to be paid by the municipality
may be paid:
(1) out of the money of the municipality appropriated to the use
of the works board for such an improvement; or
(2) through the issuance of bonds of the municipality.
(c) The notice of hearing required by section 26 of this chapter
shall be given after the cost of the improvement has been finally
determined by the works board through firm bids or contracts and
firm estimates for other costs.
(d) If the finally determined cost of the improvement exceeds the
total of:
(1) the benefits assessed, less damages assessed; and
(2) the contributions of the petitioners, the municipality, and
other sources;
the works board shall direct the appraisers to review the assessments
and submit a revised assessment list.
(e) The notice of hearing shall be given only after the works board
determines that the money available from all sources is adequate to
cover the total cost of the improvement, including all costs that are
to be reimbursed under section 18(c) of this chapter. As added by P.L.98-1993, SEC.9.
IC 36-9-38-25 Appraisers; qualification for appointment
Sec. 25. A person appointed as an appraiser under this chapter
must be:
(1) a disinterested licensed real estate broker; or
(2) a disinterested licensed appraiser under IC 25-34.1. As added by P.L.98-1993, SEC.9. Amended by P.L.113-2006,
SEC.22.
IC 36-9-38-26 Notice of proposed assessments to property owners; contents
Sec. 26. (a) Promptly after completion of all of the following, the
municipal works board shall mail a notice, first class postage
prepaid, to each owner of real property to be assessed:
(1) The filing of an adequate assessment.
(2) The determination of the cost of the improvement.
(3) The determination that adequate money will be available.
(b) The notices shall be mailed not later than twenty-one (21) days
before the hearing date and must do all of the following:
(1) Set forth the amount of the proposed assessment.
(2) State that the proposed assessment on each parcel of real
property in the district is on file and can be seen in the office of
the works board.
(3) Set forth the date and time the works board will, at the
works board's office, do the following:
(A) Receive written remonstrances against the assessments.
(B) Hear all owners of assessed real property who have filed
written remonstrances before the date fixed for the hearing.
(c) The notices to the owners may be mailed to the owners' names
and addresses appearing on the tax duplicates in the records of the
county auditor. As added by P.L.98-1993, SEC.9.
IC 36-9-38-27 Proposed assessments; written remonstrances; hearings;
assessment roll; deficiency of funds
Sec. 27. (a) At the hearing fixed under section 26 of this chapter,
the municipal works board shall hear all owners of assessed real
property who have filed written remonstrances before the date of the
hearing. The hearing may be continued from time to time without
further notice, as necessary to hear the owners.
(b) The works board shall make a determination increasing,
decreasing, or confirming each assessment by setting opposite each
name, parcel, and appraisers' assessment on the assessment roll the
amount of the assessment as determined by the works board. If the
total of the assessments exceeds the amount needed, the works board
shall make a pro rata reduction in each assessment.
(c) The signing of the assessment roll by a majority of the
members of the works board and the delivery of the roll to the
municipal fiscal officer constitute a final and conclusive
determination of the benefits or damages assessed. However, a
person may appeal the determination if:
(1) the person had previously filed a written remonstrance under
this section; or
(2) the person's assessment was increased above the amount
fixed by the appraisers.
(d) An appeal must be made in the manner prescribed by
IC 34-13-6.
(e) If the final determination of the works board causes the total
of the money available to be inadequate to cover the cost of the
improvement, the deficiency may be supplied in the manner provided
by section 24 of this chapter. As added by P.L.98-1993, SEC.9. Amended by P.L.1-1998, SEC.218.
IC 36-9-38-28 Lien of assessment
Sec. 28. Each assessment levied under this chapter (or under
IC 36-9-20 before its repeal in 1993) is a lien on the real property
assessed. This lien is second in priority only to taxes levied on the
property. As added by P.L.98-1993, SEC.9.
IC 36-9-38-29 Municipal assessment; manner of payment; other assessments;
payment in installments; interest
Sec. 29. (a) At the time the municipal works board determines the
amount of the assessments, the municipal works board shall also
determine the following:
(1) The manner in which the municipality shall pay the
municipality's assessment, if any.
(2) The number of monthly or annual installments over which
the other assessments will be paid.
(3) The maximum rate of interest on the installments, which
may be equal to or greater than the interest rate on bonds issued
under section 30 of this chapter.
(b) The works board shall certify the determination under
subsection (a) to the municipal fiscal officer. This certification must
accompany the assessment roll. As added by P.L.98-1993, SEC.9. Amended by P.L.62-2001, SEC.9.
IC 36-9-38-30 Bonds
Sec. 30. (a) For the purposes of anticipating the collection of
assessments under this chapter, the municipality shall issue bonds
payable out of the assessments. However, a consolidated city is not
required to issue bonds under this section.
(b) The terms of the bonds may allow early retirement of the
bonds for and to the extent of prepayment of assessments in
anticipation of which the bonds were issued.
(c) The bonds bear interest at a rate or rates determined by the
legislative body of the municipality and shall be executed, sold, and
delivered in denominations determined to be appropriate by the
municipal fiscal officer as bonds of a municipality are executed, sold,
and delivered.
(d) If the bonds are sold at a public sale, the advertisement of the
sale of the bonds shall be published in accordance with IC 5-3-1. The
municipality may also sell the bonds by negotiated private sale to a
financial institution.
(e) Unless the municipality chooses to sell the bonds by a
negotiated private sale to a financial institution, the sale shall be
made to the highest and best bidder, as provided in IC 36-9-36.
However, the sale may not be for less than the face value of the
bonds, plus interest from the date of the bonds to the date of delivery.
(f) The bonds and interest on the bonds are exempt from taxation
to the extent provided by IC 6-8-5-1.
(g) The bonds are not a corporate obligation or an indebtedness of
the municipality and are payable only out of money actually paid and
collected under this chapter (or under IC 36-9-20 before its repeal in
1993). The bonds must state this fact on the bonds' face. As added by P.L.98-1993, SEC.9. Amended by P.L.62-2001, SEC.10.
IC 36-9-38-31 Fees for use of improvement; changes; hearing upon petition in
cases of certain changes
Sec. 31. (a) At or before the completion of the assessment roll, the
municipal works board may do either of the following:
(1) Adopt a schedule of fees for the use of an improvement.
(2) Determine that the use of the improvement will be free.
(b) Fees established under subsection (a) may be reduced,
eliminated, increased, or added to by the works board without a
hearing, but only to reflect increased or decreased costs of operation
and maintenance.
(c) Any other changes in the fees established shall be made only
after a hearing for that purpose is petitioned for by the owners of
property originally assessed for at least ten percent (10%) of the cost
of the improvement.
(d) If a petition is filed with the works board under subsection (c),
notice of a hearing shall be given to all owners of property in the
improvement district. The notice may be mailed to the owners at the
owners' names and addresses appearing in the records of the official
charged with the duty of collecting the assessments. The notice must:
(1) state the date, time, place, and purpose of the hearing; and
(2) be addressed and mailed at least ten (10) days before the
date of the hearing.
(e) The works board may not alter the fees at the hearing if the
owners of property originally assessed for more than fifty percent
(50%) of the total assessments object to the proposed change. As added by P.L.98-1993, SEC.9.
IC 36-9-38-32 Fees for use of improvement; excess revenues; payment of bonds
Sec. 32. If the fees established under section 31 of this chapter
produce net revenue in excess of reasonable costs of operation and
maintenance, the excess revenue shall be used to pay part of the
principal and interest on the bonds issued as the bonds mature. To
the extent that principal and interest is paid from the excess revenue,
the assessments shall be reduced and canceled on a pro rata basis. As added by P.L.98-1993, SEC.9.
IC 36-9-38-33 Fees for use of improvement; amount limitation following
retirement of bonds
Sec. 33. After the bonds are retired, the fees established under
section 31 of this chapter may not be greater than is necessary to pay
for the reasonable costs of operation and maintenance of the
improvement. As added by P.L.98-1993, SEC.9.
