IC 8-23-5-1 Encroachment on state highways; removal, prevention, and
termination; notice; entry; costs; exceptions
Sec. 1. (a) The department may remove, prevent, or terminate an
encroachment onto a state highway, right-of-way, or other
department property, including drainage onto the highway,
right-of-way, or other property.
(b) If the department determines that an encroachment exists, the
department shall give notice by certified mail to the owner and the
occupant of the property from which the encroachment has occurred
and by posting a copy of the notice in a conspicuous place on the
property. The notice must specify the encroachment and the period
of time within which the encroachment must be removed, terminated,
or prevented. The period of time specified in the notice may not be
less than thirty (30) days.
(c) If the encroachment has not been removed, terminated, or
prevented within the period of time specified in the notice under
subsection (b), the department may enter the property from which the
encroachment has occurred and take whatever action the department
considers necessary to remove, terminate, or prevent the
encroachment.
(d) The cost of the department's removal, termination, or
prevention of an encroachment under subsection (c) shall be paid by
the owner of the property from which the encroachment has
occurred. The department shall bill the owner for the cost. If the bill
remains unpaid for a period of thirty (30) days, the department shall
file the bill with the clerk of the circuit court of the county in which
the property is located. The clerk shall immediately enter the bill on
the judgment docket against the owner of the property, and the bill
is a lien against the property. The lien may be foreclosed in the same
manner as other judgment liens, without relief from valuation or
appraisement laws or right of redemption.
(e) Where an awning, canopy, marquee, advertising sign, or
similar encroachment extending over a highway right-of-way was in
place on August 12, 1963, and is supported entirely from outside the
highway right-of-way, the encroachment may remain if the
department determines that the encroachment will not impair the
highway or interfere with the free and safe flow of traffic on the
highway. As added by P.L.18-1990, SEC.214.
IC 8-23-5-2 Construction and reconstruction at railroad crossings; costs
Sec. 2. (a) If a highway or road is being constructed or
reconstructed so that it crosses or intersects the existing tracks of a
railroad at grade level at a point where no crossing previously
existed, the department, county, city, or town under whose
jurisdiction the crossing lies shall pay the cost of the construction of
the new crossing, the approaches to the crossing, and the cost of the
necessary protective or crossing warning signals. After construction,
the owner or lessee of the railroad shall maintain the crossing and
protective or crossing warning signals and keep them in repair at the
owner's or lessee's cost.
(b) If the owner or lessee of a railroad is constructing or
reconstructing railroad tracks so that the tracks cross or intersect a
highway or road at grade level at a point where no railroad crossing
previously existed, the owner or lessee of the railroad shall pay the
cost of the construction of the new crossing, the approaches to the
crossing, and the cost of the necessary protective or crossing warning
signals. After construction, the owner or lessee of the railroad shall
maintain the crossing and protective or crossing warning signals and
keep them in repair at the owner's or lessee's cost.
(c) If a highway or road crosses or intersects the tracks of a
railroad at grade level and the highway or road is reconstructed to
alter the existing crossing or intersection by a change of grade,
widening or changing the type of pavement, or by changing the angle
of the intersection, the department, county, city, or town under whose
jurisdiction the crossing lies shall pay the cost of the reconstruction
of the crossing, the approaches to the crossing, and the cost of the
necessary protective or crossing warning signals. After
reconstruction, the owner or lessee of the railroad shall maintain the
crossing and protective or crossing warning signals and keep them in
repair at the owner's or lessee's cost.
(d) If the owner or lessee of a railroad reconstructs or alters the
tracks of a railroad that crosses or intersects a highway or road at
grade level so that it is necessary to reconstruct or alter the crossing
or intersection, the owner or lessee of the railroad shall pay the cost
of the reconstruction or altering of the crossing, the approaches to the
crossing, and the cost of the necessary protective or crossing warning
signals. After construction, the owner or lessee of the railroad shall
maintain the crossing and protective or crossing warning signals and
keep them in repair at the owner's or lessee's cost.
(e) Notwithstanding subsections (a) through (d), the department,
a county, a city, or a town under whose jurisdiction a railroad
crossing lies may provide highway or road surface maintenance at a
railroad crossing if the department, county, city, or town requests and
receives written approval from the railroad owner or lessee before
commencing the highway or road surface maintenance. The cost of
the maintenance may be wholly or partially borne by the department,
county, city, or town upon agreement with the railroad.
(f) Any construction, reconstruction, or maintenance of highway
or road surfaces provided for in this section may be paid for from
funds obtained under 23 U.S.C. 130.
(g) A railroad whose tracks lie in any public highway or road shall
properly grade, surface, and maintain the highway, road, and railroad
tracks within the boundaries described in subsection (h):
(1) in accordance with the grade and surfacing material of the
highway or road; and
(2) in a manner as to afford security for life and property of
persons and vehicles using the highway or road.
(h) The railroad is responsible for the repair and maintenance of
the grade and surface occupied by the railroad tracks, including the
space:
(1) between the rails of a railroad track;
(2) between the railroad tracks if there are at least two (2)
railroad tracks; and
(3) that extends eighteen (18) inches in width on the outside of
each rail of a railroad track. As added by P.L.18-1990, SEC.214. Amended by P.L.183-2005,
SEC.1.
IC 8-23-5-3 Construction of railroad viaducts
Sec. 3. (a) The department may construct a viaduct where a
railroad yard and tracks adjacent to a railroad yard intersect the direct
route of a through street in a city or town that directly connects with
a state highway designated as a principal arterial highway if the
owner of the railroad yard or tracks agrees to grant an easement to
build a viaduct. The easement shall be granted without compensation
or damages allowed to the owner of the railroad yard or tracks.
(b) A viaduct authorized under subsection (a) shall be constructed
according to plans and specifications adopted by the department in
the same manner as state highways are constructed. The department
may contract with the owner of the railroad yard or tracks to have the
viaduct built by the owner of the railroad yard or tracks. As added by P.L.18-1990, SEC.214.
IC 8-23-5-4 Improvement of certain connecting streets and roads
Sec. 4. Whenever:
(1) the department improves a state highway that is connected
with a city street or road; and
(2) the state owns property in the city;
the department shall improve the part of the connecting street or road
that runs through or abuts the state owned property to conform with
the standards adopted for the construction and improvement of state
highways. As added by P.L.18-1990, SEC.214.
IC 8-23-5-5 Construction of sidewalks
Sec. 5. The department may construct sidewalks on and along a
highway in the state highway system outside the corporate limits of
a city whenever the department considers that sidewalks are
necessary for the protection and safety of pedestrians. As added by P.L.18-1990, SEC.214. IC 8-23-5-6 Maintenance of state institution roadways
Sec. 6. (a) The department shall maintain all highways and
driveways located on the premises of institutions operated by the
state, including the state fairgrounds upon a request for maintenance
by the institution. The expense of maintaining a highway or driveway
under this subsection shall be paid by the department, subject to the
approval of the governor.
(b) The department shall:
(1) maintain public roads and parking areas constructed on
properties of the department of natural resources; and
(2) construct new roads on properties owned by the department
of natural resources:
(A) upon the request of the department of natural resources;
(B) subject to the approval of the engineers of the
department of natural resources as to the design and location
of the new roads to preserve scenic values; and
(C) subject to the approval of the governor. As added by P.L.18-1990, SEC.214. Amended by P.L.110-1993,
SEC.1.
IC 8-23-5-7 Construction and maintenance of roadside parks and connecting
highways
Sec. 7. (a) As part of the state highway system, the department
may lay out, construct, and maintain roadside parks and highways
that connect a state highway with a state park, state forest reserve,
state game preserve, or a state institution. A connecting highway
constructed under this subsection shall be constructed in the same
manner as a state highway.
(b) Before a roadside park or connecting highway described in
subsection (a) may be constructed within the boundaries of a state
institution, park, reserve or preserve, the board of trustees of the state
institution, park, reserve, or preserve must adopt a resolution
approving the construction.
(c) The department may cooperate with a county highway
authority having jurisdiction over a county highway that connects a
state park, state forest reserve, state game preserve, or state
recreation area with a state highway. The department shall undertake
construction and maintenance responsibilities under this subsection
upon the request of the department of natural resources if the request
is approved by the governor.
(d) Expenditures incurred by the department in carrying out this
section shall be made from the motor vehicle highway account before
distribution to local units of government. Before an expenditure may
be made under this subsection, an appropriation authorizing the
expenditure must be made. As added by P.L.18-1990, SEC.214.
IC 8-23-5-8 Installation of vending machines in interstate highway rest areas
Sec. 8. (a) The department may install vending machines for items
including food, drink, candy, and first aid kits in rest areas on the
interstate highway system.
(b) The department shall report in an electronic format under
IC 5-14-6 to the general assembly through the legislative council the
results of the installation.
(c) Installation of the vending machines must conform with
federal and Indiana law. As added by P.L.18-1990, SEC.214. Amended by P.L.28-2004,
SEC.75.
IC 8-23-5-9 Additions to state highway system; procedures
Sec. 9. (a) The department may establish the approximate
locations, using the recommended widths established by the
department in the department's approved design manual for
equivalent classification of roads, of rights-of-way for additions to
the state highway system.
(b) If the department establishes the approximate locations and
widths of rights-of-way for an addition to the state highway system
under subsection (a), the department shall conduct a public hearing
in at least one (1) county in which a right-of-way for the addition is
located. The department shall publish notice of a hearing conducted
under this subsection in two (2) newspapers of general circulation in
the county in which the hearing will be conducted at least ten (10)
days before the hearing. If only one (1) newspaper is published in the
county, publication in that newspaper is sufficient. Notice of the
hearing shall be given by mail to all owners of real property
identified within the rights-of-way shown on the map prepared under
subsection (c).
(c) If the department establishes the approximate locations and
widths of rights-of-way for an addition to the state highway system
under subsection (a), the department shall prepare a map showing the
approximate location and width of each right-of-way for the
proposed addition. The map must display the following:
(1) Existing highways in the area of the addition.
(2) Property lines and owners of record of property to be
acquired for the rights-of-way.
(3) Other information determined necessary by the department.
The department shall approve the map, with changes (if applicable),
at the public hearing conducted under subsection (b). The department
shall record the approval and a copy of the approved map in the
office of the recorder of each county in which land to be acquired for
the addition is located.
(d) The department shall:
(1) publish notice of a recording under subsection (c) in two (2)
newspapers of general circulation in each county in which an
approval is recorded; however, if only one (1) newspaper is
published in the county, publication in that newspaper is
sufficient; and
(2) not more than sixty (60) days after an approval is recorded,
send notice of the recording by certified mail to all owners of
record of real property to be acquired for rights-of-way for the
addition.
(e) The owner of property to be acquired for a right-of-way must
give at least sixty (60) days notice by registered mail to the
department before developing or otherwise improving the property.
However, the owner may perform normal or emergency repairs to
existing structures on the property without giving notice to the
department.
(f) Not more than forty-five (45) days after receiving a notice
under subsection (e), the department shall respond by providing
notice to the property owner of the department's intent to acquire the
property. The department shall:
(1) purchase; or
(2) exercise the right of eminent domain to acquire;
the property not more than one hundred eighty (180) days after
responding under this subsection. If the department does not
purchase the property or acquire the property by eminent domain
within one hundred eighty (180) days after responding under this
subsection, the department may subsequently acquire the property
through the exercise of the right of eminent domain under IC 32-24.
(g) An owner of property to be acquired for a right-of-way may
not receive damages for any development or improvement for which
the owner is required to give notice to the department under
subsection (e) unless the department fails to purchase or exercise the
right of eminent domain to acquire the property under subsection (f).
(h) The state or a county or municipality in which an addition to
the state highway system is located may acquire a right-of-way
needed for the addition at any time. For purposes of this subsection,
the fair market value of the property shall be determined as follows:
(1) If the property is purchased, the fair market value on the
date of purchase.
(2) If the property is acquired by eminent domain, the fair
market value on the date on which the complaint in
condemnation was filed.
However, if the property is agricultural land, the fair market value
shall be determined under IC 32-24-1.
(i) The department shall adopt guidelines to determine whether a
project constitutes an addition to the state highway system for
purposes of this section. In adopting guidelines under this subsection,
the department shall consider the following:
(1) The need for additional capacity.
(2) The estimated cost of the project.
(3) Whether the project is new construction or maintenance.
(j) As used in this section, "owner" does not include a utility.
(k) At the same time and in the same manner as the notice is sent
under subsection (d)(2), the department shall notify the owner of
property to be acquired for a right-of-way of the following:
(1) With respect to damage that occurs to the property as a
result of entry onto the land for a purpose set forth in
IC 8-23-7-26:
(A) a description of the owner's right to compensation for
the damage from the department; and
(B) the procedure that the owner must follow to obtain the
compensation.
(2) The name, mailing address, and telephone number of an
individual or office within the department to which the owner
may direct questions concerning the rights and procedures
described in subdivision (1). As added by P.L.99-2008, SEC.1.
IC 8-23-5-1 Encroachment on state highways; removal, prevention, and
termination; notice; entry; costs; exceptions
Sec. 1. (a) The department may remove, prevent, or terminate an
encroachment onto a state highway, right-of-way, or other
department property, including drainage onto the highway,
right-of-way, or other property.
(b) If the department determines that an encroachment exists, the
department shall give notice by certified mail to the owner and the
occupant of the property from which the encroachment has occurred
and by posting a copy of the notice in a conspicuous place on the
property. The notice must specify the encroachment and the period
of time within which the encroachment must be removed, terminated,
or prevented. The period of time specified in the notice may not be
less than thirty (30) days.
(c) If the encroachment has not been removed, terminated, or
prevented within the period of time specified in the notice under
subsection (b), the department may enter the property from which the
encroachment has occurred and take whatever action the department
considers necessary to remove, terminate, or prevent the
encroachment.
(d) The cost of the department's removal, termination, or
prevention of an encroachment under subsection (c) shall be paid by
the owner of the property from which the encroachment has
occurred. The department shall bill the owner for the cost. If the bill
remains unpaid for a period of thirty (30) days, the department shall
file the bill with the clerk of the circuit court of the county in which
the property is located. The clerk shall immediately enter the bill on
the judgment docket against the owner of the property, and the bill
is a lien against the property. The lien may be foreclosed in the same
manner as other judgment liens, without relief from valuation or
appraisement laws or right of redemption.
(e) Where an awning, canopy, marquee, advertising sign, or
similar encroachment extending over a highway right-of-way was in
place on August 12, 1963, and is supported entirely from outside the
highway right-of-way, the encroachment may remain if the
department determines that the encroachment will not impair the
highway or interfere with the free and safe flow of traffic on the
highway. As added by P.L.18-1990, SEC.214.
IC 8-23-5-2 Construction and reconstruction at railroad crossings; costs
Sec. 2. (a) If a highway or road is being constructed or
reconstructed so that it crosses or intersects the existing tracks of a
railroad at grade level at a point where no crossing previously
existed, the department, county, city, or town under whose
jurisdiction the crossing lies shall pay the cost of the construction of
the new crossing, the approaches to the crossing, and the cost of the
necessary protective or crossing warning signals. After construction,
the owner or lessee of the railroad shall maintain the crossing and
protective or crossing warning signals and keep them in repair at the
owner's or lessee's cost.
(b) If the owner or lessee of a railroad is constructing or
reconstructing railroad tracks so that the tracks cross or intersect a
highway or road at grade level at a point where no railroad crossing
previously existed, the owner or lessee of the railroad shall pay the
cost of the construction of the new crossing, the approaches to the
crossing, and the cost of the necessary protective or crossing warning
signals. After construction, the owner or lessee of the railroad shall
maintain the crossing and protective or crossing warning signals and
keep them in repair at the owner's or lessee's cost.
(c) If a highway or road crosses or intersects the tracks of a
railroad at grade level and the highway or road is reconstructed to
alter the existing crossing or intersection by a change of grade,
widening or changing the type of pavement, or by changing the angle
of the intersection, the department, county, city, or town under whose
jurisdiction the crossing lies shall pay the cost of the reconstruction
of the crossing, the approaches to the crossing, and the cost of the
necessary protective or crossing warning signals. After
reconstruction, the owner or lessee of the railroad shall maintain the
crossing and protective or crossing warning signals and keep them in
repair at the owner's or lessee's cost.
(d) If the owner or lessee of a railroad reconstructs or alters the
tracks of a railroad that crosses or intersects a highway or road at
grade level so that it is necessary to reconstruct or alter the crossing
or intersection, the owner or lessee of the railroad shall pay the cost
of the reconstruction or altering of the crossing, the approaches to the
crossing, and the cost of the necessary protective or crossing warning
signals. After construction, the owner or lessee of the railroad shall
maintain the crossing and protective or crossing warning signals and
keep them in repair at the owner's or lessee's cost.
(e) Notwithstanding subsections (a) through (d), the department,
a county, a city, or a town under whose jurisdiction a railroad
crossing lies may provide highway or road surface maintenance at a
railroad crossing if the department, county, city, or town requests and
receives written approval from the railroad owner or lessee before
commencing the highway or road surface maintenance. The cost of
the maintenance may be wholly or partially borne by the department,
county, city, or town upon agreement with the railroad.
(f) Any construction, reconstruction, or maintenance of highway
or road surfaces provided for in this section may be paid for from
funds obtained under 23 U.S.C. 130.
(g) A railroad whose tracks lie in any public highway or road shall
properly grade, surface, and maintain the highway, road, and railroad
tracks within the boundaries described in subsection (h):
(1) in accordance with the grade and surfacing material of the
highway or road; and
(2) in a manner as to afford security for life and property of
persons and vehicles using the highway or road.
(h) The railroad is responsible for the repair and maintenance of
the grade and surface occupied by the railroad tracks, including the
space:
(1) between the rails of a railroad track;
(2) between the railroad tracks if there are at least two (2)
railroad tracks; and
(3) that extends eighteen (18) inches in width on the outside of
each rail of a railroad track. As added by P.L.18-1990, SEC.214. Amended by P.L.183-2005,
SEC.1.
IC 8-23-5-3 Construction of railroad viaducts
Sec. 3. (a) The department may construct a viaduct where a
railroad yard and tracks adjacent to a railroad yard intersect the direct
route of a through street in a city or town that directly connects with
a state highway designated as a principal arterial highway if the
owner of the railroad yard or tracks agrees to grant an easement to
build a viaduct. The easement shall be granted without compensation
or damages allowed to the owner of the railroad yard or tracks.
(b) A viaduct authorized under subsection (a) shall be constructed
according to plans and specifications adopted by the department in
the same manner as state highways are constructed. The department
may contract with the owner of the railroad yard or tracks to have the
viaduct built by the owner of the railroad yard or tracks. As added by P.L.18-1990, SEC.214.
IC 8-23-5-4 Improvement of certain connecting streets and roads
Sec. 4. Whenever:
(1) the department improves a state highway that is connected
with a city street or road; and
(2) the state owns property in the city;
the department shall improve the part of the connecting street or road
that runs through or abuts the state owned property to conform with
the standards adopted for the construction and improvement of state
highways. As added by P.L.18-1990, SEC.214.
IC 8-23-5-5 Construction of sidewalks
Sec. 5. The department may construct sidewalks on and along a
highway in the state highway system outside the corporate limits of
a city whenever the department considers that sidewalks are
necessary for the protection and safety of pedestrians. As added by P.L.18-1990, SEC.214. IC 8-23-5-6 Maintenance of state institution roadways
Sec. 6. (a) The department shall maintain all highways and
driveways located on the premises of institutions operated by the
state, including the state fairgrounds upon a request for maintenance
by the institution. The expense of maintaining a highway or driveway
under this subsection shall be paid by the department, subject to the
approval of the governor.
(b) The department shall:
(1) maintain public roads and parking areas constructed on
properties of the department of natural resources; and
(2) construct new roads on properties owned by the department
of natural resources:
(A) upon the request of the department of natural resources;
(B) subject to the approval of the engineers of the
department of natural resources as to the design and location
of the new roads to preserve scenic values; and
(C) subject to the approval of the governor. As added by P.L.18-1990, SEC.214. Amended by P.L.110-1993,
SEC.1.
IC 8-23-5-7 Construction and maintenance of roadside parks and connecting
highways
Sec. 7. (a) As part of the state highway system, the department
may lay out, construct, and maintain roadside parks and highways
that connect a state highway with a state park, state forest reserve,
state game preserve, or a state institution. A connecting highway
constructed under this subsection shall be constructed in the same
manner as a state highway.
(b) Before a roadside park or connecting highway described in
subsection (a) may be constructed within the boundaries of a state
institution, park, reserve or preserve, the board of trustees of the state
institution, park, reserve, or preserve must adopt a resolution
approving the construction.
(c) The department may cooperate with a county highway
authority having jurisdiction over a county highway that connects a
state park, state forest reserve, state game preserve, or state
recreation area with a state highway. The department shall undertake
construction and maintenance responsibilities under this subsection
upon the request of the department of natural resources if the request
is approved by the governor.
(d) Expenditures incurred by the department in carrying out this
section shall be made from the motor vehicle highway account before
distribution to local units of government. Before an expenditure may
be made under this subsection, an appropriation authorizing the
expenditure must be made. As added by P.L.18-1990, SEC.214.
IC 8-23-5-8 Installation of vending machines in interstate highway rest areas
Sec. 8. (a) The department may install vending machines for items
including food, drink, candy, and first aid kits in rest areas on the
interstate highway system.
(b) The department shall report in an electronic format under
IC 5-14-6 to the general assembly through the legislative council the
results of the installation.
(c) Installation of the vending machines must conform with
federal and Indiana law. As added by P.L.18-1990, SEC.214. Amended by P.L.28-2004,
SEC.75.
IC 8-23-5-9 Additions to state highway system; procedures
Sec. 9. (a) The department may establish the approximate
locations, using the recommended widths established by the
department in the department's approved design manual for
equivalent classification of roads, of rights-of-way for additions to
the state highway system.
(b) If the department establishes the approximate locations and
widths of rights-of-way for an addition to the state highway system
under subsection (a), the department shall conduct a public hearing
in at least one (1) county in which a right-of-way for the addition is
located. The department shall publish notice of a hearing conducted
under this subsection in two (2) newspapers of general circulation in
the county in which the hearing will be conducted at least ten (10)
days before the hearing. If only one (1) newspaper is published in the
county, publication in that newspaper is sufficient. Notice of the
hearing shall be given by mail to all owners of real property
identified within the rights-of-way shown on the map prepared under
subsection (c).
(c) If the department establishes the approximate locations and
widths of rights-of-way for an addition to the state highway system
under subsection (a), the department shall prepare a map showing the
approximate location and width of each right-of-way for the
proposed addition. The map must display the following:
(1) Existing highways in the area of the addition.
(2) Property lines and owners of record of property to be
acquired for the rights-of-way.
(3) Other information determined necessary by the department.
The department shall approve the map, with changes (if applicable),
at the public hearing conducted under subsection (b). The department
shall record the approval and a copy of the approved map in the
office of the recorder of each county in which land to be acquired for
the addition is located.
(d) The department shall:
(1) publish notice of a recording under subsection (c) in two (2)
newspapers of general circulation in each county in which an
approval is recorded; however, if only one (1) newspaper is
published in the county, publication in that newspaper is
sufficient; and
(2) not more than sixty (60) days after an approval is recorded,
send notice of the recording by certified mail to all owners of
record of real property to be acquired for rights-of-way for the
addition.
(e) The owner of property to be acquired for a right-of-way must
give at least sixty (60) days notice by registered mail to the
department before developing or otherwise improving the property.
However, the owner may perform normal or emergency repairs to
existing structures on the property without giving notice to the
department.
(f) Not more than forty-five (45) days after receiving a notice
under subsection (e), the department shall respond by providing
notice to the property owner of the department's intent to acquire the
property. The department shall:
(1) purchase; or
(2) exercise the right of eminent domain to acquire;
the property not more than one hundred eighty (180) days after
responding under this subsection. If the department does not
purchase the property or acquire the property by eminent domain
within one hundred eighty (180) days after responding under this
subsection, the department may subsequently acquire the property
through the exercise of the right of eminent domain under IC 32-24.
(g) An owner of property to be acquired for a right-of-way may
not receive damages for any development or improvement for which
the owner is required to give notice to the department under
subsection (e) unless the department fails to purchase or exercise the
right of eminent domain to acquire the property under subsection (f).
(h) The state or a county or municipality in which an addition to
the state highway system is located may acquire a right-of-way
needed for the addition at any time. For purposes of this subsection,
the fair market value of the property shall be determined as follows:
(1) If the property is purchased, the fair market value on the
date of purchase.
(2) If the property is acquired by eminent domain, the fair
market value on the date on which the complaint in
condemnation was filed.
However, if the property is agricultural land, the fair market value
shall be determined under IC 32-24-1.
(i) The department shall adopt guidelines to determine whether a
project constitutes an addition to the state highway system for
purposes of this section. In adopting guidelines under this subsection,
the department shall consider the following:
(1) The need for additional capacity.
(2) The estimated cost of the project.
(3) Whether the project is new construction or maintenance.
(j) As used in this section, "owner" does not include a utility.
(k) At the same time and in the same manner as the notice is sent
under subsection (d)(2), the department shall notify the owner of
property to be acquired for a right-of-way of the following:
(1) With respect to damage that occurs to the property as a
result of entry onto the land for a purpose set forth in
IC 8-23-7-26:
(A) a description of the owner's right to compensation for
the damage from the department; and
(B) the procedure that the owner must follow to obtain the
compensation.
(2) The name, mailing address, and telephone number of an
individual or office within the department to which the owner
may direct questions concerning the rights and procedures
described in subdivision (1). As added by P.L.99-2008, SEC.1.
IC 8-23-5-1 Encroachment on state highways; removal, prevention, and
termination; notice; entry; costs; exceptions
Sec. 1. (a) The department may remove, prevent, or terminate an
encroachment onto a state highway, right-of-way, or other
department property, including drainage onto the highway,
right-of-way, or other property.
(b) If the department determines that an encroachment exists, the
department shall give notice by certified mail to the owner and the
occupant of the property from which the encroachment has occurred
and by posting a copy of the notice in a conspicuous place on the
property. The notice must specify the encroachment and the period
of time within which the encroachment must be removed, terminated,
or prevented. The period of time specified in the notice may not be
less than thirty (30) days.
(c) If the encroachment has not been removed, terminated, or
prevented within the period of time specified in the notice under
subsection (b), the department may enter the property from which the
encroachment has occurred and take whatever action the department
considers necessary to remove, terminate, or prevent the
encroachment.
(d) The cost of the department's removal, termination, or
prevention of an encroachment under subsection (c) shall be paid by
the owner of the property from which the encroachment has
occurred. The department shall bill the owner for the cost. If the bill
remains unpaid for a period of thirty (30) days, the department shall
file the bill with the clerk of the circuit court of the county in which
the property is located. The clerk shall immediately enter the bill on
the judgment docket against the owner of the property, and the bill
is a lien against the property. The lien may be foreclosed in the same
manner as other judgment liens, without relief from valuation or
appraisement laws or right of redemption.
(e) Where an awning, canopy, marquee, advertising sign, or
similar encroachment extending over a highway right-of-way was in
place on August 12, 1963, and is supported entirely from outside the
highway right-of-way, the encroachment may remain if the
department determines that the encroachment will not impair the
highway or interfere with the free and safe flow of traffic on the
highway. As added by P.L.18-1990, SEC.214.
IC 8-23-5-2 Construction and reconstruction at railroad crossings; costs
Sec. 2. (a) If a highway or road is being constructed or
reconstructed so that it crosses or intersects the existing tracks of a
railroad at grade level at a point where no crossing previously
existed, the department, county, city, or town under whose
jurisdiction the crossing lies shall pay the cost of the construction of
the new crossing, the approaches to the crossing, and the cost of the
necessary protective or crossing warning signals. After construction,
the owner or lessee of the railroad shall maintain the crossing and
protective or crossing warning signals and keep them in repair at the
owner's or lessee's cost.
(b) If the owner or lessee of a railroad is constructing or
reconstructing railroad tracks so that the tracks cross or intersect a
highway or road at grade level at a point where no railroad crossing
previously existed, the owner or lessee of the railroad shall pay the
cost of the construction of the new crossing, the approaches to the
crossing, and the cost of the necessary protective or crossing warning
signals. After construction, the owner or lessee of the railroad shall
maintain the crossing and protective or crossing warning signals and
keep them in repair at the owner's or lessee's cost.
(c) If a highway or road crosses or intersects the tracks of a
railroad at grade level and the highway or road is reconstructed to
alter the existing crossing or intersection by a change of grade,
widening or changing the type of pavement, or by changing the angle
of the intersection, the department, county, city, or town under whose
jurisdiction the crossing lies shall pay the cost of the reconstruction
of the crossing, the approaches to the crossing, and the cost of the
necessary protective or crossing warning signals. After
reconstruction, the owner or lessee of the railroad shall maintain the
crossing and protective or crossing warning signals and keep them in
repair at the owner's or lessee's cost.
(d) If the owner or lessee of a railroad reconstructs or alters the
tracks of a railroad that crosses or intersects a highway or road at
grade level so that it is necessary to reconstruct or alter the crossing
or intersection, the owner or lessee of the railroad shall pay the cost
of the reconstruction or altering of the crossing, the approaches to the
crossing, and the cost of the necessary protective or crossing warning
signals. After construction, the owner or lessee of the railroad shall
maintain the crossing and protective or crossing warning signals and
keep them in repair at the owner's or lessee's cost.
(e) Notwithstanding subsections (a) through (d), the department,
a county, a city, or a town under whose jurisdiction a railroad
crossing lies may provide highway or road surface maintenance at a
railroad crossing if the department, county, city, or town requests and
receives written approval from the railroad owner or lessee before
commencing the highway or road surface maintenance. The cost of
the maintenance may be wholly or partially borne by the department,
county, city, or town upon agreement with the railroad.
(f) Any construction, reconstruction, or maintenance of highway
or road surfaces provided for in this section may be paid for from
funds obtained under 23 U.S.C. 130.
(g) A railroad whose tracks lie in any public highway or road shall
properly grade, surface, and maintain the highway, road, and railroad
tracks within the boundaries described in subsection (h):
(1) in accordance with the grade and surfacing material of the
highway or road; and
(2) in a manner as to afford security for life and property of
persons and vehicles using the highway or road.
(h) The railroad is responsible for the repair and maintenance of
the grade and surface occupied by the railroad tracks, including the
space:
(1) between the rails of a railroad track;
(2) between the railroad tracks if there are at least two (2)
railroad tracks; and
(3) that extends eighteen (18) inches in width on the outside of
each rail of a railroad track. As added by P.L.18-1990, SEC.214. Amended by P.L.183-2005,
SEC.1.
IC 8-23-5-3 Construction of railroad viaducts
Sec. 3. (a) The department may construct a viaduct where a
railroad yard and tracks adjacent to a railroad yard intersect the direct
route of a through street in a city or town that directly connects with
a state highway designated as a principal arterial highway if the
owner of the railroad yard or tracks agrees to grant an easement to
build a viaduct. The easement shall be granted without compensation
or damages allowed to the owner of the railroad yard or tracks.
(b) A viaduct authorized under subsection (a) shall be constructed
according to plans and specifications adopted by the department in
the same manner as state highways are constructed. The department
may contract with the owner of the railroad yard or tracks to have the
viaduct built by the owner of the railroad yard or tracks. As added by P.L.18-1990, SEC.214.
IC 8-23-5-4 Improvement of certain connecting streets and roads
Sec. 4. Whenever:
(1) the department improves a state highway that is connected
with a city street or road; and
(2) the state owns property in the city;
the department shall improve the part of the connecting street or road
that runs through or abuts the state owned property to conform with
the standards adopted for the construction and improvement of state
highways. As added by P.L.18-1990, SEC.214.
IC 8-23-5-5 Construction of sidewalks
Sec. 5. The department may construct sidewalks on and along a
highway in the state highway system outside the corporate limits of
a city whenever the department considers that sidewalks are
necessary for the protection and safety of pedestrians. As added by P.L.18-1990, SEC.214. IC 8-23-5-6 Maintenance of state institution roadways
Sec. 6. (a) The department shall maintain all highways and
driveways located on the premises of institutions operated by the
state, including the state fairgrounds upon a request for maintenance
by the institution. The expense of maintaining a highway or driveway
under this subsection shall be paid by the department, subject to the
approval of the governor.
(b) The department shall:
(1) maintain public roads and parking areas constructed on
properties of the department of natural resources; and
(2) construct new roads on properties owned by the department
of natural resources:
(A) upon the request of the department of natural resources;
(B) subject to the approval of the engineers of the
department of natural resources as to the design and location
of the new roads to preserve scenic values; and
(C) subject to the approval of the governor. As added by P.L.18-1990, SEC.214. Amended by P.L.110-1993,
SEC.1.
IC 8-23-5-7 Construction and maintenance of roadside parks and connecting
highways
Sec. 7. (a) As part of the state highway system, the department
may lay out, construct, and maintain roadside parks and highways
that connect a state highway with a state park, state forest reserve,
state game preserve, or a state institution. A connecting highway
constructed under this subsection shall be constructed in the same
manner as a state highway.
(b) Before a roadside park or connecting highway described in
subsection (a) may be constructed within the boundaries of a state
institution, park, reserve or preserve, the board of trustees of the state
institution, park, reserve, or preserve must adopt a resolution
approving the construction.
(c) The department may cooperate with a county highway
authority having jurisdiction over a county highway that connects a
state park, state forest reserve, state game preserve, or state
recreation area with a state highway. The department shall undertake
construction and maintenance responsibilities under this subsection
upon the request of the department of natural resources if the request
is approved by the governor.
(d) Expenditures incurred by the department in carrying out this
section shall be made from the motor vehicle highway account before
distribution to local units of government. Before an expenditure may
be made under this subsection, an appropriation authorizing the
expenditure must be made. As added by P.L.18-1990, SEC.214.
IC 8-23-5-8 Installation of vending machines in interstate highway rest areas
Sec. 8. (a) The department may install vending machines for items
including food, drink, candy, and first aid kits in rest areas on the
interstate highway system.
(b) The department shall report in an electronic format under
IC 5-14-6 to the general assembly through the legislative council the
results of the installation.
(c) Installation of the vending machines must conform with
federal and Indiana law. As added by P.L.18-1990, SEC.214. Amended by P.L.28-2004,
SEC.75.
IC 8-23-5-9 Additions to state highway system; procedures
Sec. 9. (a) The department may establish the approximate
locations, using the recommended widths established by the
department in the department's approved design manual for
equivalent classification of roads, of rights-of-way for additions to
the state highway system.
(b) If the department establishes the approximate locations and
widths of rights-of-way for an addition to the state highway system
under subsection (a), the department shall conduct a public hearing
in at least one (1) county in which a right-of-way for the addition is
located. The department shall publish notice of a hearing conducted
under this subsection in two (2) newspapers of general circulation in
the county in which the hearing will be conducted at least ten (10)
days before the hearing. If only one (1) newspaper is published in the
county, publication in that newspaper is sufficient. Notice of the
hearing shall be given by mail to all owners of real property
identified within the rights-of-way shown on the map prepared under
subsection (c).
(c) If the department establishes the approximate locations and
widths of rights-of-way for an addition to the state highway system
under subsection (a), the department shall prepare a map showing the
approximate location and width of each right-of-way for the
proposed addition. The map must display the following:
(1) Existing highways in the area of the addition.
(2) Property lines and owners of record of property to be
acquired for the rights-of-way.
(3) Other information determined necessary by the department.
The department shall approve the map, with changes (if applicable),
at the public hearing conducted under subsection (b). The department
shall record the approval and a copy of the approved map in the
office of the recorder of each county in which land to be acquired for
the addition is located.
(d) The department shall:
(1) publish notice of a recording under subsection (c) in two (2)
newspapers of general circulation in each county in which an
approval is recorded; however, if only one (1) newspaper is
published in the county, publication in that newspaper is
sufficient; and
(2) not more than sixty (60) days after an approval is recorded,
send notice of the recording by certified mail to all owners of
record of real property to be acquired for rights-of-way for the
addition.
(e) The owner of property to be acquired for a right-of-way must
give at least sixty (60) days notice by registered mail to the
department before developing or otherwise improving the property.
However, the owner may perform normal or emergency repairs to
existing structures on the property without giving notice to the
department.
(f) Not more than forty-five (45) days after receiving a notice
under subsection (e), the department shall respond by providing
notice to the property owner of the department's intent to acquire the
property. The department shall:
(1) purchase; or
(2) exercise the right of eminent domain to acquire;
the property not more than one hundred eighty (180) days after
responding under this subsection. If the department does not
purchase the property or acquire the property by eminent domain
within one hundred eighty (180) days after responding under this
subsection, the department may subsequently acquire the property
through the exercise of the right of eminent domain under IC 32-24.
(g) An owner of property to be acquired for a right-of-way may
not receive damages for any development or improvement for which
the owner is required to give notice to the department under
subsection (e) unless the department fails to purchase or exercise the
right of eminent domain to acquire the property under subsection (f).
(h) The state or a county or municipality in which an addition to
the state highway system is located may acquire a right-of-way
needed for the addition at any time. For purposes of this subsection,
the fair market value of the property shall be determined as follows:
(1) If the property is purchased, the fair market value on the
date of purchase.
(2) If the property is acquired by eminent domain, the fair
market value on the date on which the complaint in
condemnation was filed.
However, if the property is agricultural land, the fair market value
shall be determined under IC 32-24-1.
(i) The department shall adopt guidelines to determine whether a
project constitutes an addition to the state highway system for
purposes of this section. In adopting guidelines under this subsection,
the department shall consider the following:
(1) The need for additional capacity.
(2) The estimated cost of the project.
(3) Whether the project is new construction or maintenance.
(j) As used in this section, "owner" does not include a utility.
(k) At the same time and in the same manner as the notice is sent
under subsection (d)(2), the department shall notify the owner of
property to be acquired for a right-of-way of the following:
(1) With respect to damage that occurs to the property as a
result of entry onto the land for a purpose set forth in
IC 8-23-7-26:
(A) a description of the owner's right to compensation for
the damage from the department; and
(B) the procedure that the owner must follow to obtain the
compensation.
(2) The name, mailing address, and telephone number of an
individual or office within the department to which the owner
may direct questions concerning the rights and procedures
described in subdivision (1). As added by P.L.99-2008, SEC.1.
