IC 8-6-2.1
Chapter 2.1. Railroad Grade Crossing Separations
IC 8-6-2.1-1 Separation or alteration of grade levels of public highway
Sec. 1. The board of public works or board of public works and
safety, referred to in this chapter as the board, of a city may, by
resolution, require the separation or alteration of the grade levels of
any public highway in the city and of any railroad crossing the public
highway, either by carrying the public highway under or over the
railroad, or by carrying the railroad under or over the public
highway, or by any combination of these means. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-2 Agreements for removal of railroad facilities; relocation and
reconstruction of facilities
Sec. 2. The board may enter into an agreement or agreements with
any railroad company for the removal of any track, roadbed, yard,
station or other railroad facilities, and provide for the relocation and
reconstruction of those facilities or any part of them if the board
determines it necessary in connection with an improvement to
provide for the abandonment for railroad purposes of any
right-of-way, land or other property owned and used or occupied for
railroad purposes by any railroad company. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-3 State highway commission powers
Sec. 3. (a) The Indiana state highway commission shall participate
in the proceedings and in the cost of any improvements made
pursuant to the proceedings provided for by this chapter if any
improvements involve a highway which is part of the state highway
system or a street or highway selected by the Indiana state highway
commission as a route of a highway in the state highway system.
(b) If the Indiana state highway commission participates in any
proceedings as set out in this chapter and in the cost of improvements
made pursuant to the proceedings, the county in which the city is
located shall also participate in the proceedings and in the cost of any
improvements that are made pursuant to the proceedings. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-4 Preparation of maps and plans
Sec. 4. (a) Whenever the board of any city determines that public
necessity and convenience require the separation or alteration of the
grade of any highway and any railroad at their intersection in the
city, it shall order the preparation of general maps, and plans and
specifications comprehending all work and changes necessary or
incidental to the improvement, including the opening, widening,
change, vacation, elevation, depression or reconstruction of any
highway, and the elevation, depression, removal, relocation,
construction or reconstruction of the track, roadbed, yards, station,
or other facilities of any railroad, and also a description of all lands,
rights-of-way and other property necessary to be acquired in
connection with the improvement, and the manner in which they are
to be acquired, whether by purchase or by appropriation, together
with an estimate of the total cost to be incurred in connection with
the improvement, as the total cost is defined by this chapter.
(b) If the maps, plans and specifications provide for the
abandonment for railroad purposes of any right-of-way, land or other
property owned or used or occupied for railroad purposes by any
railroad company, and the removal of any track, roadbed, yard,
station or other facilities, requires the relocation and reconstruction
of the facilities, or any part of them, the board, prior to the adoption
of the resolution for the improvement, shall enter into an agreement
or agreements with the railroad company affected, for adjustment of
the costs and losses occasioned by the removal, relocation and
reconstruction, and the value of all the property abandoned for
railroad purposes and reclaimed for other uses, the apportionment of
the adjusted costs, losses and values between the railroads affected
and the city, and other matters necessarily related.
(c) Cost adjustments required by this chapter are governed by
IC 8-6-3, the provisions of which are incorporated in this chapter by
reference. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-5 Parties to agreements; submission of specifications, maps, and
plans; approval
Sec. 5. (a) If the Indiana state highway commission and the county
in which the city is located participate in the proceedings, the Indiana
state highway commission and the county shall become parties to the
agreement, and the agreement or agreements shall be included in and
be a part of the resolution for the improvement and shall be subject
to the final confirmation, or modification and confirmation, or
rescission of the resolution, but no modification of the agreement or
agreements shall be effective without the written consent of the
railroad company affected; and the consent shall be filed with the
board.
(b) The maps, plans and specifications shall be submitted by the
engineer selected by the board to the Indiana state highway
commission and to the board of commissioners of the county in
which the city is located, and if the maps, plans and specifications
meet the approval of the Indiana state highway commission and the
board of commissioners, the approval shall be endorsed in writing on
the documents.
(c) No further proceedings may be had pursuant to this chapter
until the general maps, plans and specifications have been approved
by the Indiana state highway commission and the board of
commissioners of the county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-6 Filing of maps, plans, and specifications; resolution; inspection
Sec. 6. (a) After the general maps, plans and specifications are
approved by the Indiana state highway commission and the board of
commissioners of the county, they shall be filed with the board by
the engineer. The board shall then adopt a resolution ordering the
separation or alteration of grades or relocation and reconstruction of
the facilities, or any part of them, as provided for in the maps, plans,
specifications and agreements and ordering the acquisition of the
property described within, and adopting all maps, plans,
specifications, agreements, descriptions and the estimate of cost,
allocating the portions of work to be done by the various parties,
prescribing the time within which the several portions of the work
shall be done, and declaring that the improvement provided for will
be of public necessity and convenience.
(b) The resolution, including all maps, plans, specifications,
agreements, descriptions and estimate, shall be open to inspection at
the office of the board by all persons interested in or affected by
them. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-7 Acquisition of property; cost agreements
Sec. 7. (a) For the purposes of this chapter, the board may acquire,
or order to be acquired, lands, rights-of-way and other property
within the city and within five (5) miles outside the corporate limits
of the city. All lands, rights-of-way and other property necessary to
be acquired in connection with the improvement may be acquired by
the board in the name of the city, or the board may, in the resolution,
order and require the railroad to acquire any portion of the same as
will permanently be occupied or used by the railroad. In the latter
event, the railroad shall acquire the lands, rights-of-way, or other
property specified in the resolution, either by purchase or by
appropriation in the manner prescribed by statute.
(b) If the work and changes provided for in the maps, plans and
specifications adopted in the resolution affects the tracks or other
facilities of more than one (1) railroad company, the railroad
companies affected may, prior to the final confirmation of the
resolution, file with the board their written agreement allocating
between the companies the cost to be borne by each of them
respectively.
(c) If the railroad companies fail to enter into a cost agreement,
the board shall incorporate in the resolution, before final
confirmation, a provision fixing the relative amount of costs to be
borne as between the railroad companies. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-8 Clearance and grade
Sec. 8. Where the highway is carried over the railroad, or where
one (1) railroad is carried over another railroad, the clearance from
the top of the railroad track to the bottom of the superstructure over
the track must be at least twenty-two (22) feet. The plans for the
improvement shall not require a permanent grade of any main line
railroad track to exceed three-tenths of one percent (.3%) unless a
greater grade is agreed upon by the railroad company affected. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-9 Notice of adoption of resolution or alteration of grade;
remonstrances
Sec. 9. (a) Upon the adoption of the resolution for separation or
alteration of grades, the board shall cause notice of the adoption and
intention, and of the fact that the maps, plans, specifications,
agreements and estimates have been prepared and can be inspected,
to be published in accordance with IC 5-3-1. The notice shall name
a day not less than twenty (20) days after the date of the last
publication on which the board will receive or hear remonstrances
from persons interested in or affected by the proceedings, and when
it will determine the public necessity and convenience of the project.
(b) A like notice shall be sent by mail to the owners of all lands
to be appropriated under and by the resolution, and in case any
landowner is a nonresident and his place of residence is known, a
like notice shall be mailed to him, but in event the nonresident
owner's residence is unknown by the board, then he is considered to
have been notified of the pendency of the proceedings by the
publication of notice. A like notice shall also be served on a resident
agent or officer of any railroad company or street railway company
whose tracks are affected by the proceeding, but failure to serve the
notice shall not invalidate the jurisdiction of the board in the
premises.
(c) If the Indiana state highway commission and the county in
which the city is located participate in the proceedings, then a like
notice shall be served upon the state highway commission and upon
the board of commissioners of the county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-10 Parties aggrieved
Sec. 10. All persons affected in any manner by the proceedings,
including all owners of real or personal property in the city, are
considered to be notified of the pendency of the proceedings, and of
all subsequent acts, hearings, adjournments, resolutions and orders
of the board, by the original notice by publication. In the resolution
and notice, separate descriptions of each piece or parcel of land are
not required, but it is sufficient to describe the property to be
purchased or appropriated by giving a description of the entire track
by metes and bounds, whether the track is composed of one (1) or
more lots or parcels, and whether owned by one (1) or more persons. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-11 Options to purchase land; appraisals
Sec. 11. (a) When the land or any part of it is to be acquired by
purchase, the resolution shall also state the maximum proposed cost,
and the board may at any time prior to the adoption of the resolution
obtain from the owner or owners of the land an option for its
purchase, or the board may enter into a contract for the purchase of
the land upon the terms and conditions the board considers best. The
option or contract is subject to final confirmation or rescission of the
resolution, and subject further to the condition that the land be paid
for only out of the special fund resulting from the sale of grade
separation district bonds and the collection of benefit assessments,
or out of funds coming to the city from equitable settlements between
the parties. If the board desires to acquire any lots or parcels of land
by purchase, it shall appoint:
(1) one (1) freeholder residing in the city, or in the county in
which the city is located; and
(2) two (2) appraisers licensed under IC 25-34.1;
who are residents of Indiana, who are not interested in any land to be
acquired or in land which may incur local benefits under such
resolution, to appraise the value of the land. One (1) of the appraisers
appointed under subdivision (2) must reside not more than fifty (50)
miles from the property. The appraisers shall take an oath that they
have no interest in the matter and that they will honestly and
impartially make the valuation. The appraisers shall then proceed to
view the land and consider and determine its true market value at that
time.
(b) The appraisers shall submit a written report of their
appraisement to the board and the report shall be filed with and
become a part of the record of the proceeding. The board may not
exercise any option on the land or enter into a contract to purchase
the land at a higher price than the value named in the report. As added by Acts 1980, P.L.8, SEC.70. Amended by P.L.113-2006,
SEC.6.
IC 8-6-2.1-12 Title to acquired property
Sec. 12. The title to any lands, rights-of-way or other property
acquired under and pursuant to the resolution, whether by purchase
or by appropriation, shall not vest in the city until they are paid for
out of the special fund created by the sale of bonds and from benefit
assessments, or out of funds coming to the city from equitable
settlements between the parties. No indebtedness or obligation of any
kind may be incurred by the city in its corporate capacity on account
of the acquiring of any lands, rights-of-way or other property. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-13 Remonstrances; appeals
Sec. 13. (a) At the time fixed for the hearing, or at any time prior
to that, any owner of land, right-of-way or other property to be
appropriated under the resolution, and any railroad company or
companies, any street railway company, and any person owning real
or personal property situated within the city, may file a written
remonstrance with the board.
(b) At the hearing, which may be adjourned from time to time, the
board shall hear all persons interested in the proceedings and
consider all remonstrances that have been filed, and after considering
them, the board shall take final action and determine the public
necessity and convenience of the proposed improvement, and
confirm, or modify and confirm, or rescind the resolution. The final
action shall be duly entered of record, and is conclusive upon all
persons, except as provided in sections 4 through 8 of this chapter.
Any person who has remonstrated in writing and who is aggrieved by
the decision of the board may take an appeal to the circuit court in
the county in which the city is located. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-14 Filing of order and bond; hearing
Sec. 14. Within twenty (20) days after the final action of the
board, the remonstrator may file in the office of the clerk of the
circuit court a copy of the order of the board, not including, unless
he so desires, the maps, plans and specifications, and his
remonstrance to them, together with his bond conditioned to pay the
cost of the appeal if it is determined against him. All appeals shall be
consolidated and heard as one (1) cause of action by the court, and
the burden of proof is upon the remonstrators. The cause shall be
tried and determined summarily by the court without the intervention
of a jury, as other civil causes, and shall be given precedence over
other matters pending in the court. Upon the trial of the cause, the
court shall hear evidence upon the remonstrances and shall confirm
the final action of the board on the resolution, or sustain the
remonstrance or remonstrances to them, and the court may remand
the resolution for further proceedings. If the resolution is confirmed
the judgment of the court is conclusive upon all parties, and no
appeal lies from the judgment. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-15 Agreements concerning planning and completion of work projects
Sec. 15. The city, by its board of public works or board of public
works and safety, the Indiana state highway commission, the county
in which the city is located, by its board of commissioners, and the
railroad company or companies whose track or tracks the
improvement authorized in this chapter concern, may enter into a
written agreement as to the plan of proceeding with the work, the
allocation of the portions to be done by the respective parties, the
division of cost between railroads, the amount of work to be done
annually, the time within which the entire work is to be completed,
the method and times of making equitable settlements of the cost
between the parties, and any other matters tending to expedite the
efficient and economical completion of the improvement. The
agreement, however, may not have the effect of increasing the total
cost of the improvement above the estimate. The agreement shall be
filed with the board and considered a part of the resolution and
constitutes the basis of all proceedings on the matters embraced in
the agreement. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-16 Costs to be borne by parties in interest
Sec. 16. (a) The total cost of the improvement to be borne by all
the parties in interest includes the following:
(1) The cost of constructing the grade elimination structure and
the cost of raising or lowering the grade, or other alteration of
any public highway, the construction or reconstruction of the
pavement, including sidewalks and curbs, and the alteration,
relocation and construction of drains or sewers required by the
improvement.
(2) The cost of elevation, depression, alteration, removal,
relocation, construction and reconstruction of any railroad track
or tracks and other facilities within or without the city.
(3) The cost of any land, right-of-way, or other property
required for the improvement.
(4) The amount of damages, if any, recoverable under law by
any person due to the improvement.
(5) The compensation for services of the special engineer and
additional engineering force, and of special counsel, if any,
employed by the board, all of whom the board may employ.
(6) The cost of supervision and inspection, the giving of
notices, and all other expense necessarily incurred by the board
in connection with the proceedings and improvement.
(b) The total cost to be borne by all the parties in interest does not
include the expense of opening new or additional highways, or the
expense of establishing additional lanes of traffic to any highways,
or the expense of providing rights-of-way or other facilities which
represent an enlargement of or betterments to the facilities of any
railroad affected by the improvement. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-17 Agreements fixing cost of improvements borne by parties in
interest
Sec. 17. (a) The total cost of the improvement shall be borne by
all of the parties in interest, in accordance with a written agreement
or written agreements to be entered into by all the parties, fixing the
portion of the total cost to be borne by each party subject, however,
to the cost formula requirements set forth in section 4 of this chapter.
The total cost shall be divided among and paid by the parties in
accordance with the agreement or agreements. The portion of the
total cost to be borne by the city does not constitute an indebtedness
or obligation of the city in its corporate capacity, but shall be payable
only out of special taxes and benefit assessments as provided by this
chapter.
(b) The Indiana state highway commission, any city affected by
this chapter and the county in which the city is located, may each
respectively enter into a written agreement or written agreements.
(c) The agreement or agreements shall be executed on behalf of
the Indiana state highway commission by the members of it and shall
be binding upon the Indiana state highway commission. The
agreement or agreements shall be executed on behalf of the city by
the board and shall be binding on the city. The agreement or
agreements shall be executed on behalf of the county by the board of
county commissioners and shall be binding on the county.
(d) To the extent that funds of any federal agency may be
available to the Indiana state highway commission for use in paying
any portion of the total cost which may be chargeable to or assumed
by the Indiana state highway commission, the Indiana state highway
commission may use the federal funds, if permitted by applicable
federal laws, for the payment of the cost or any portion of it, or for
the payment of all or any portion of either the city's or county's share
of the cost; or the Indiana state highway commission may use the
federal funds for any combination of these purposes. The board may
apply for, accept, and use grants, loans or other financial assistance
from any municipal, county, state, or federal government agency. To
the extent any funds of any federal agency may be available to the
city or the county for use in paying the costs, the city and county may
use the federal funds, if permitted by applicable federal laws, for the
payment of any portion of the cost which is chargeable to or assumed
by the city and county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-18 Contracts; bidding; validity of proceedings and orders of board
and contract
Sec. 18. Any portion or portions of the work of improvement
under the resolution which is allotted to the city shall be done by
contract or contracts, and all contracts shall be let under statutes
governing the letting of contracts by the city. In event of the
execution of a contract for the work, the validity of the contract may
not subsequently be questioned by any person, except in a suit to
enjoin the performance of the contract instituted within ten (10) days
after its execution. All proceedings and orders of the board
preliminary and prior to the contract, and the contract, are considered
valid, conclusive and binding upon all persons and are not subject to
attack for any cause after the ten (10) day period after its execution
has expired. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-19 Warrants
Sec. 19. Any part of the city's portion of the total cost of the
improvement which is necessary for the city to pay prior to the
collection of benefit assessments under this chapter and prior to the
issue and sale of bonds under this chapter, shall be paid as follows:
the board shall, from time to time, certify the items of expense to the
controller or clerk-treasurer, directing him to pay those amounts, and
the controller or clerk-treasurer shall draw his warrant or warrants,
and the warrant or warrants shall be paid out of the general fund of
the city without appropriation being made by the common council;
or, in case there is no money in the general fund of the city not
otherwise appropriated, the city controller or clerk-treasurer shall
recommend to the common council the temporary transfer from other
funds of the city a sufficient amount to meet the items of expense, or
the making of a temporary loan for this purpose, and the common
council shall at once make the transfer of funds, or authorize the
temporary loan in the same manner that other temporary loans are
made by the city. The fund or funds of the city from which the
payments are made shall be fully reimbursed and repaid by the board
out of the special fund created by the sale of bonds and from benefit
assessments or out of funds coming to the city from equitable
settlements between the parties. The board may cause the amount for
the temporary advancements on work to be provided for in the
budget and tax levy of the city for the year when the funds are
anticipated to be needed. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-20 Accounting of improvement costs and disbursements; payments
and adjustments
Sec. 20. (a) The board, through its engineer, shall keep an account
of the total cost of the improvement, of all disbursements made
during the course of the work, and of all equitable settlements
between the parties contributing to the cost; but the total cost may
not exceed the estimate adopted in the resolution.
(b) From time to time during the progress of the work, and upon
completion of the improvement, the board shall make and adjust
equitable settlements and payments between the parties contributing
to the cost of the improvement so that the total cost of the
improvement is apportioned between the parties as determined by the
board consistent with this chapter.
(c) The equitable settlements and payments shall be made by the
board, either on its own initiative or on petition of any railroad
company charged with the work or any part of the work, or on
petition of either the Indiana state highway commission or of the
county in which the city is located, if the Indiana state highway
commission and the county participate in the cost of the
improvement.
(d) Any adjustment or adjustments are binding on all of the parties
unless any aggrieved party, within sixty (60) days after the entry of
an order of equitable settlement made by the board, files his
complaint to review the adjustment in the circuit court of the county
in which the city is located. The decree of the court is final. The
railroad company or companies, shall, upon the adjustment or decree,
pay their portions of the cost as directed. The Indiana state highway
commission shall, upon the adjustment or decree, pay its portion of
the costs as directed, and the payment shall be made out of the funds
of the commission or funds appropriated for the use of the
commission. The county council of the county in which the city is
located shall provide sufficient funds to pay the county's share of the
cost of the improvement, either by appropriating the necessary
amount of money from available funds on hand, or by the sale of
bonds. Upon each adjustment or decree, the county in which the city
is located shall pay the county's portion of the cost as directed by the
adjustment or decree out of the funds provided by the county council.
Upon each adjustment or decree, the city controller or clerk-treasurer
shall draw his warrant or warrants in payment of the city's portion of
the cost.
(e) All warrants may be drawn only against the special fund
arising from the special tax and special assessments provided for in
this chapter and from equitable settlements.
(f) The board may adopt supplemental resolutions and enter
orders from time to time as necessary to carry out the purpose of the
resolution. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-21 Special tax; taxing district
Sec. 21. (a) Upon final action of the board or circuit court,
confirming the resolution, all territory lying within the corporate
limits of the city shall become a special taxing district for grade
separation and railroad relocation and reconstruction purposes, and
all property, real and personal, located within the territorial limits of
the district shall be subject to a special tax for the purpose of
providing funds to pay the city's portion of the total cost of the
improvement.
(b) The special tax shall constitute the amount of benefits
resulting to all of the property from the proceedings, and shall be
levied in the manner provided for by this chapter. If the board
determines that any lots or parcels of land, exclusive of
improvements, lying within two thousand (2,000) feet of any grade
crossing eliminated or altered by the improvement, or within two
thousand (2,000) feet of any lands or rights-of-way abandoned for
railroad use or from which railroad facilities are to be removed, will
incur a particular benefit by reason of their proximity in addition to
the benefits received by them in common with all other property
located in the district, those lots and parcels of land which lie within
the corporate limits of the city shall be subject to a special
assessment for the benefits.
(c) The special assessment shall be determined in accordance with
this chapter, but the total amount of the additional benefits assessed
shall not in any case exceed forty percent (40%) of the city's share of
the total cost of the improvement; and the total amount of the
additional benefits assessed and finally confirmed or adjudged
against lots and parcels of land exclusive of improvements lying
within two thousand (2,000) feet shall be deducted from the city's
share of the total cost and the balance of the city's share of the total
cost, is the amount of the benefits resulting to all property in the
special taxing district, and the special tax shall be levied only for this
balance. Any lot or parcel of land owned and used or occupied for
railroad purposes at the time of the adoption of any resolution by any
railroad company whose tracks are affected by the resolution, or any
lot or parcel of land devoted to railroad purposes in connection with
and because of the improvement, is not subject to any special
assessment for the particular benefits. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-22 Roll of owners of property sought to be taken
Sec. 22. When the resolution is finally confirmed by the board,
the board shall require the preparation of a roll of all the owners or
holders of property sought to be taken, or who have incurred
damages, and also of all of the owners or holders of lots or parcels of
land lying within two thousand (2,000) feet of any grade crossing
eliminated or altered by the improvement or within two thousand
(2,000) feet of any lands or rights-of-way abandoned in whole or in
part for railroad use or from which railroad facilities are to be
removed, which will incur a particular benefit, as provided in section
21 of this chapter, from the grade separation or alteration and
railroad relocation as provided for in the resolution. In addition to the
list of names, the roll should show with reasonable certainty a
description of the property to be appropriated, or affected either
injuriously or beneficially, belonging to that person, and no greater
certainty in names and description is necessary to the validity of any
award or assessment than is required in the assessment of taxes. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-23 Determination of damages; publication of notice of land
appropriated, character of improvement, and preliminary awards;
remonstrances; irregularities in proceedings
Sec. 23. (a) Upon the completion of the roll, the board shall
consider, determine and award the amount of damages sustained by
the owners of the several parcels of land required to be appropriated,
if any, as provided for in the resolution, or which will incur damages,
and, then the board shall consider, determine and assess the amount
of particular benefits which will accrue to the several lots or parcels
of land, exclusive of improvements, lying within two thousand
(2,000) feet of any grade crossing eliminated or altered by the
improvement, or within two thousand (2,000) feet of any lands or
rights-of-way abandoned in whole or in part for railroad use or from
which railroad facilities are to be removed, as provided for in the
resolution, by reason of their proximity, in addition to the benefits
received by the lots or parcels of land in common with all property,
real and personal, located in the district. The total amount of the
particular benefits assessed against the lots and parcels of land,
exclusive of improvements, located within the two thousand (2,000)
feet, may not in any case exceed forty percent (40%) of the city's
share of the total cost of the grade separation improvement.
(b) When the roll is completed, the board shall publish, in
accordance with IC 5-3-1, a notice describing the location of the land
appropriated and the general character of the improvement, and
stating whether assessments have been made against lands within the
two thousand (2,000) foot distance. The notice shall also state that
the assessment roll, with the names of the owners in favor of whom
damages have been awarded and against whom assessments have
been made, and descriptions of property affected, with the amounts
of preliminary awards or assessments as to each piece or parcel of
property affected, is on file and can be seen in the office of the
board. The board shall also send by United States mail a notice to the
place of residence, if known, of persons owning lands to be taken, or
incurring damages, or against which special assessments have been
made, showing each item of the determination as to those persons. In
case any person affected is a nonresident, or his residence is
unknown, he is considered to have been notified by the publication.
The notices shall name a day not earlier than ten (10) days after the
last date of publication, or after the date of mailing, as above
provided, on which the board will receive and hear remonstrances
from persons with regard to the amount of their respective awards or
assessments. Persons not included in the roll of awards or damages
and claiming to be entitled to the same are considered to have been
notified of the pendency of the proceedings by the original notice of
the resolution of the board and by the publication required by this
section.
(c) If there are defects or irregularities of any kind in the
proceedings with respect to one (1) or more interested persons, they
do not affect the proceedings, except so far as they may affect the
interest or property of the person or persons, and do not avail any
other person. In case of any defect, supplementary proceedings of the
same general character as those otherwise prescribed by this chapter
may be instituted in order to correct the defect. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-24 Interests of mentally incompetent persons or infants; guardianship
Sec. 24. If any person having an interest in land affected by the
proceedings is mentally incompetent or under the age of eighteen
(18) years, the board shall certify that fact to its attorney. The
attorney shall apply to the proper court and secure the appointment
of a guardian for the person under eighteen (18) years of age or
mentally incompetent person. The board shall give notice to the
guardian, who shall appear and protect the interest of the protected
person. If the person under eighteen (18) years of age or mentally
incompetent person already has a guardian, the notice shall be served
upon the guardian. The requisites of notice to the guardian shall be
the same as for other notices. As added by Acts 1980, P.L.8, SEC.70. Amended by P.L.33-1989,
SEC.8.
IC 8-6-2.1-25 Appearance by remonstrators; appeals
Sec. 25. Any person notified or considered to be notified under
this chapter may appear before the board on the day fixed for hearing
the remonstrances with regard to awards and assessments, and
remonstrate in writing against them. All persons appearing before the
board having an interest in the proceedings shall be given a hearing.
After the remonstrances have been received and the hearings had, the
board shall either sustain or modify, by increasing or decreasing, the
awards or assessments. Any person remonstrating in writing who is
aggrieved by the decision of the board may, within ten (10) days
after the decision is made, take an appeal to the circuit court of the
county in which the city is located. The appeal affects only the
amount of the assessment or award of the person appealing. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-26 Procedure on appeal
Sec. 26. (a) The appeal shall be taken by filing an original
complaint in the circuit court of the county in which the city is
located against the board within the time named, setting forth the
action of the board in respect to the assessment or award, and stating
the facts relied upon as showing an error of the board. The court
shall rehear the matter of the assessment or award de novo, and
confirm, lower or increase the amount. The cause shall be summarily
tried by the court without the intervention of a jury, as in other civil
cases. A change of venue from the county may not be taken.
(b) All remonstrances upon which an appeal is taken may be
consolidated and heard as one (1) cause of action, and all the appeals
shall be heard and determined by the court within thirty (30) days
after the time of filing of the appeal. If the court reduces the amount
of benefit assessed against the land of the property owner by ten
percent (10%) or more of the assessment by the board, or increases
the amount of the damages awarded in his favor by ten percent (10%)
or more of the amount awarded by the board, the plaintiff in the
appeal shall recover costs, otherwise not.
(c) The amount of the judgment in the court shall be final, and no
appeal may be taken. However, any party in interest may take an
appeal from the judgment to the supreme court of Indiana, upon the
sole ground that the property in question has or has not incurred
damages recoverable under law. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-27 Assessment liens; payment; tax exemption
Sec. 27. (a) The assessment roll, upon final confirmation by the
board, shall be delivered to the controller or clerk-treasurer, and from
that time the respective amounts of benefits assessed shall severally
be liens, superior to all other liens except taxes, against the
respective lots or parcels of land upon which they are assessed. The
duties of the controller or clerk-treasurer are those prescribed by
statute in cities with regard to assessments for street improvements.
(b) The assessments of benefits are due and payable to the
controller or clerk-treasurer from the time of the delivery of the
assessment roll to him. If not paid within thirty (30) days, the board's
attorney shall proceed to foreclose the liens in a court as mortgages
are foreclosed with similar rights of redemption, and have them sold
to pay the assessments. The board shall recover costs with reasonable
attorney's fees and interest at the rate of six percent (6%) per annum.
(c) In all cases where the party against whom the assessment is
made is a resident of the city, a notice of the assessment and demand
for payment shall be delivered to him personally or mailed to his last
usual place of residence. All persons assessed for local benefits may,
within thirty (30) days after the confirmation of the assessments,
avail themselves of the right to pay the assessment installments in the
same manner as provided for the payment of assessments for street
improvements in cities, except that the board may provide that the
installments may be extended over a period of twenty (20) years,
which privilege shall also be stated in the notice.
(d) Statutes relating to the payment of street improvement
assessments by installments, the issuance of bonds and coupons to
anticipate assessments, and the rights of bondholders and
landowners, when not inconsistent with this chapter, shall apply and
be extended to assessments made under this chapter. When
assessment bonds are issued, the city controller or clerk-treasurer
shall sell the bonds promptly in the same manner and upon the same
notice conditions as grade separation district bonds are authorized to
be sold as provided in section 29 of this chapter, and the proceeds
shall be kept in a separate fund as provided for in section 30 of this
chapter. The assessment bonds shall be exempt from taxation for all
purposes. All interest and penalties on delinquencies shall go into the
special fund. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-28 Payment of damages
Sec. 28. (a) The board, upon the completion of the award of
damages, if any, or upon the determination of the appeals taken, shall
make out certificates for the proper amounts and in favor of the
proper persons. Presentation of the certificates to the city controller
or clerk-treasurer of the city entitles those persons to a warrant drawn
on the city treasury. The controller or clerk-treasurer shall pay the
persons named the amounts due them respectively, as shown by the
certificates, out of the separate and specific funds derived from the
sale of bonds and from benefit assessments provided for in section
30 of this chapter, or out of funds coming from equitable settlements
between the parties, and these payments may not be made from any
other source or funds.
(b) The certificates or vouchers shall, whenever practical, be
tendered actually to the person entitled to them, but where this is
impractical, they shall be kept for the persons in the office of the
board, and the making and filing of the certificates, in all cases, is
considered to be valid tender to the person entitled to them at the
time or as soon as there are sufficient funds to pay them. They shall
be delivered to the person on request. In case of dispute or doubt as
to which of various persons the money shall be paid, the board shall
make out the certificates in favor of the attorney appointed by the
board for the use of the persons entitled to them, and the attorney
shall draw the money and pay it into court, requiring the various
claimants to interplead and have their respective rights determined.
(c) If an injunction is obtained because damages have not been
paid or tendered, the board shall tender the amount of damages with
interest from the time of the entry of the property, if any has been
made, and all accrued costs. If there are sufficient funds to pay the
certificate, the injunction shall be removed. The pendency of an
appeal to the circuit court of a county does not affect the validity of
a tender made under this section, but the board may proceed with its
appropriation of the property in question. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-29 Bonds
Sec. 29. (a) In order to raise money to pay the city's portion of the
total cost of an improvement and in anticipation of the special benefit
tax to be levied, the board shall issue, in the name of the city, at one
(1) time, or from time to time as the proceeds are needed, the bonds
of the grade separation or railroad relocation and reconstruction
district not to exceed in aggregate amount the balance of the city's
portion of the total cost after deducting from the city's portion the
total amount of benefits, if any, which have been assessed by the
board and finally confirmed or adjudged against lots and parcels of
land exclusive of improvements lying within two thousand (2,000)
feet of any grade crossing eliminated or altered by the improvement,
or within two thousand (2,000) feet of any lands or rights-of-way
abandoned in whole or in part for railroad use or from which railroad
facilities are to be removed.
(b) The bonds may be issued in any denomination not exceeding
one thousand dollars ($1,000) each in not less than forty (40) nor
more than sixty (60) equal series, as the board determines, and shall
be payable one (1) series each six (6) months beginning on the first
day of July of the first year following the date of their issue. If the
bond issue is ordered in any calendar year after the date of the annual
tax levy, then the first series shall mature on the first day of July of
the second year and the balance of the bonds at the designated
regular intervals. The bonds shall be negotiable as inland bills of
exchange and shall bear interest payable on the first days of January
and July of each year, the first interest to be payable on the first
maturity date of the bonds.
(c) Upon adoption of a resolution ordering bonds, the board shall
certify a copy of the resolution to the controller or clerk-treasurer of
the city in which the grade separation district is located; that officer
shall prepare the bonds, and the mayor of the city shall execute the
bonds and the city controller or clerk-treasurer shall attest the
execution. The bonds shall be exempt from taxation for all purposes.
All bonds issued by the board shall be sold by the city controller or
clerk-treasurer to the highest bidder, but not at less than par and
accrued interest to date of delivery, after giving notice of sale of the
bonds by publication in accordance with IC 5-3-1. The publication
shall be made not less than fifteen (15) days prior to the date fixed
for the sale of the bonds.
(d) The bonds are not a corporate obligation or indebtedness of
the city, but constitute an indebtedness of the district as a special
taxing district, and the bonds and interest shall be payable only out
of a special tax levied upon all property of the special taxing district,
as in this chapter provided, and the bonds shall recite the terms upon
their face, together with the purposes for which they are issued.
(e) No suit to question the validity of the bonds issued for the
special taxing district, or to prevent their issue, may be maintained
after the date set for the sale of the bonds, and all bonds after that
date are incontestable for any cause. As added by Acts 1980, P.L.8, SEC.70. Amended by Acts 1980,
P.L.73, SEC.1.
IC 8-6-2.1-30 Proceeds from sale of bonds
Sec. 30. All proceeds from the sale of bonds issued under section
29 of this chapter, together with all money collected from benefit
assessments, or from the sale of assessment bonds, shall be kept as
a separate and specific fund, entitled grade separation or railroad
relocation and reconstruction fund, to pay the city's portion of the
total cost of the grade separation improvement, and no part of the
fund may be used for any other purpose. The fund shall be deposited
with the depository or depositories of other public funds of the city.
Any surplus remaining in the fund, after all the city's portion of the
total cost is fully paid, shall be paid into and become a part of the
grade separation or railroad relocation and reconstruction bond fund
as referred to in section 31 of this chapter.
As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-31 Special tax levy
Sec. 31. (a) In order to raise money to pay all bonds issued under
section 29 of this chapter, including interest, the common council of
the city shall levy each year a special tax upon all of the taxable
property, both real and personal, located within the territorial limits
of the special taxing district, in such manner as to pay the principal
of the bonds as they severally mature, together with all accruing
interest.
(b) The tax levied shall be collected by the county treasurer in the
same manner as other taxes are collected. As the tax is distributed to
the controller or clerk-treasurer it shall be deposited in a separate
fund, to be known as the grade separation or railroad relocation and
reconstruction bond fund, and shall be applied to the payment of the
special taxing district bonds and interest as they severally mature,
and to no other purposes. All accumulation of the fund prior to its
use for the payment of the bonds and interest shall be deposited in
the depository or depositories of other public funds in the city. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-32 Payment for lands acquired by purchase, contract, or eminent
domain; title to lands
Sec. 32. If the lands acquired for the improvement or any part of
it are secured by purchase or contract, the payment shall be made
according to the terms of the contract. If lands are taken by
condemnation, the amount of damages assessed shall be paid or
tendered within ninety (90) days after the final determination of the
condemnation proceedings, or as soon thereafter as the funds arising
from the bonds and the assessment of benefits are available. The title
to the lands, or that portion paid for or otherwise acquired for these
purposes, then vests in the city. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-33 Filing of description of acquired lands
Sec. 33. Within sixty (60) days after any land or right in it is paid
for and acquired under this chapter, the board shall file and have
recorded in the recorder's office in the county in which the land is
situated a description of it sufficiently accurate for its identification,
with a statement of the purpose for which it is acquired or taken. The
description shall be signed by a majority of the board. The board may
transfer to any railroad company or companies any property acquired
in connection with the improvement, but intended for the permanent
occupation or use of the railroad or railroads, after proper adjustment
in the equitable settlements between the parties. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-34 Limitations upon expenditures and appropriations
Sec. 34. No part of any of the funds raised by the city or received
by the city under this chapter may be expended, except upon
warrants drawn by the city controller or clerk-treasurer upon
vouchers of the board. No appropriation in any form is necessary, but
all funds arising under this chapter are appropriated to the respective
purposes named in this chapter, and are under the control of the
board, and the board may expend the funds for the purposes stated in
this chapter. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-35 Application of IC 8-6-3 to maintenance costs
Sec. 35. Maintenance costs requirements are governed, to the
extent applicable, by IC 8-6-3. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-36 Jurisdiction and authority of board of each city
Sec. 36. (a) The jurisdiction and authority of the board of each
city are complete in relation to all matters provided for in this
chapter, except in the levying of taxes. In carrying out this chapter it
is not necessary to comply with any other statute, except as
specifically provided.
(b) If no procedure is provided for by this chapter for doing
anything authorized or contemplated by it, the procedure provided by
other statutes in similar cases may be followed. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1
Chapter 2.1. Railroad Grade Crossing Separations
IC 8-6-2.1-1 Separation or alteration of grade levels of public highway
Sec. 1. The board of public works or board of public works and
safety, referred to in this chapter as the board, of a city may, by
resolution, require the separation or alteration of the grade levels of
any public highway in the city and of any railroad crossing the public
highway, either by carrying the public highway under or over the
railroad, or by carrying the railroad under or over the public
highway, or by any combination of these means. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-2 Agreements for removal of railroad facilities; relocation and
reconstruction of facilities
Sec. 2. The board may enter into an agreement or agreements with
any railroad company for the removal of any track, roadbed, yard,
station or other railroad facilities, and provide for the relocation and
reconstruction of those facilities or any part of them if the board
determines it necessary in connection with an improvement to
provide for the abandonment for railroad purposes of any
right-of-way, land or other property owned and used or occupied for
railroad purposes by any railroad company. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-3 State highway commission powers
Sec. 3. (a) The Indiana state highway commission shall participate
in the proceedings and in the cost of any improvements made
pursuant to the proceedings provided for by this chapter if any
improvements involve a highway which is part of the state highway
system or a street or highway selected by the Indiana state highway
commission as a route of a highway in the state highway system.
(b) If the Indiana state highway commission participates in any
proceedings as set out in this chapter and in the cost of improvements
made pursuant to the proceedings, the county in which the city is
located shall also participate in the proceedings and in the cost of any
improvements that are made pursuant to the proceedings. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-4 Preparation of maps and plans
Sec. 4. (a) Whenever the board of any city determines that public
necessity and convenience require the separation or alteration of the
grade of any highway and any railroad at their intersection in the
city, it shall order the preparation of general maps, and plans and
specifications comprehending all work and changes necessary or
incidental to the improvement, including the opening, widening,
change, vacation, elevation, depression or reconstruction of any
highway, and the elevation, depression, removal, relocation,
construction or reconstruction of the track, roadbed, yards, station,
or other facilities of any railroad, and also a description of all lands,
rights-of-way and other property necessary to be acquired in
connection with the improvement, and the manner in which they are
to be acquired, whether by purchase or by appropriation, together
with an estimate of the total cost to be incurred in connection with
the improvement, as the total cost is defined by this chapter.
(b) If the maps, plans and specifications provide for the
abandonment for railroad purposes of any right-of-way, land or other
property owned or used or occupied for railroad purposes by any
railroad company, and the removal of any track, roadbed, yard,
station or other facilities, requires the relocation and reconstruction
of the facilities, or any part of them, the board, prior to the adoption
of the resolution for the improvement, shall enter into an agreement
or agreements with the railroad company affected, for adjustment of
the costs and losses occasioned by the removal, relocation and
reconstruction, and the value of all the property abandoned for
railroad purposes and reclaimed for other uses, the apportionment of
the adjusted costs, losses and values between the railroads affected
and the city, and other matters necessarily related.
(c) Cost adjustments required by this chapter are governed by
IC 8-6-3, the provisions of which are incorporated in this chapter by
reference. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-5 Parties to agreements; submission of specifications, maps, and
plans; approval
Sec. 5. (a) If the Indiana state highway commission and the county
in which the city is located participate in the proceedings, the Indiana
state highway commission and the county shall become parties to the
agreement, and the agreement or agreements shall be included in and
be a part of the resolution for the improvement and shall be subject
to the final confirmation, or modification and confirmation, or
rescission of the resolution, but no modification of the agreement or
agreements shall be effective without the written consent of the
railroad company affected; and the consent shall be filed with the
board.
(b) The maps, plans and specifications shall be submitted by the
engineer selected by the board to the Indiana state highway
commission and to the board of commissioners of the county in
which the city is located, and if the maps, plans and specifications
meet the approval of the Indiana state highway commission and the
board of commissioners, the approval shall be endorsed in writing on
the documents.
(c) No further proceedings may be had pursuant to this chapter
until the general maps, plans and specifications have been approved
by the Indiana state highway commission and the board of
commissioners of the county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-6 Filing of maps, plans, and specifications; resolution; inspection
Sec. 6. (a) After the general maps, plans and specifications are
approved by the Indiana state highway commission and the board of
commissioners of the county, they shall be filed with the board by
the engineer. The board shall then adopt a resolution ordering the
separation or alteration of grades or relocation and reconstruction of
the facilities, or any part of them, as provided for in the maps, plans,
specifications and agreements and ordering the acquisition of the
property described within, and adopting all maps, plans,
specifications, agreements, descriptions and the estimate of cost,
allocating the portions of work to be done by the various parties,
prescribing the time within which the several portions of the work
shall be done, and declaring that the improvement provided for will
be of public necessity and convenience.
(b) The resolution, including all maps, plans, specifications,
agreements, descriptions and estimate, shall be open to inspection at
the office of the board by all persons interested in or affected by
them. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-7 Acquisition of property; cost agreements
Sec. 7. (a) For the purposes of this chapter, the board may acquire,
or order to be acquired, lands, rights-of-way and other property
within the city and within five (5) miles outside the corporate limits
of the city. All lands, rights-of-way and other property necessary to
be acquired in connection with the improvement may be acquired by
the board in the name of the city, or the board may, in the resolution,
order and require the railroad to acquire any portion of the same as
will permanently be occupied or used by the railroad. In the latter
event, the railroad shall acquire the lands, rights-of-way, or other
property specified in the resolution, either by purchase or by
appropriation in the manner prescribed by statute.
(b) If the work and changes provided for in the maps, plans and
specifications adopted in the resolution affects the tracks or other
facilities of more than one (1) railroad company, the railroad
companies affected may, prior to the final confirmation of the
resolution, file with the board their written agreement allocating
between the companies the cost to be borne by each of them
respectively.
(c) If the railroad companies fail to enter into a cost agreement,
the board shall incorporate in the resolution, before final
confirmation, a provision fixing the relative amount of costs to be
borne as between the railroad companies. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-8 Clearance and grade
Sec. 8. Where the highway is carried over the railroad, or where
one (1) railroad is carried over another railroad, the clearance from
the top of the railroad track to the bottom of the superstructure over
the track must be at least twenty-two (22) feet. The plans for the
improvement shall not require a permanent grade of any main line
railroad track to exceed three-tenths of one percent (.3%) unless a
greater grade is agreed upon by the railroad company affected. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-9 Notice of adoption of resolution or alteration of grade;
remonstrances
Sec. 9. (a) Upon the adoption of the resolution for separation or
alteration of grades, the board shall cause notice of the adoption and
intention, and of the fact that the maps, plans, specifications,
agreements and estimates have been prepared and can be inspected,
to be published in accordance with IC 5-3-1. The notice shall name
a day not less than twenty (20) days after the date of the last
publication on which the board will receive or hear remonstrances
from persons interested in or affected by the proceedings, and when
it will determine the public necessity and convenience of the project.
(b) A like notice shall be sent by mail to the owners of all lands
to be appropriated under and by the resolution, and in case any
landowner is a nonresident and his place of residence is known, a
like notice shall be mailed to him, but in event the nonresident
owner's residence is unknown by the board, then he is considered to
have been notified of the pendency of the proceedings by the
publication of notice. A like notice shall also be served on a resident
agent or officer of any railroad company or street railway company
whose tracks are affected by the proceeding, but failure to serve the
notice shall not invalidate the jurisdiction of the board in the
premises.
(c) If the Indiana state highway commission and the county in
which the city is located participate in the proceedings, then a like
notice shall be served upon the state highway commission and upon
the board of commissioners of the county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-10 Parties aggrieved
Sec. 10. All persons affected in any manner by the proceedings,
including all owners of real or personal property in the city, are
considered to be notified of the pendency of the proceedings, and of
all subsequent acts, hearings, adjournments, resolutions and orders
of the board, by the original notice by publication. In the resolution
and notice, separate descriptions of each piece or parcel of land are
not required, but it is sufficient to describe the property to be
purchased or appropriated by giving a description of the entire track
by metes and bounds, whether the track is composed of one (1) or
more lots or parcels, and whether owned by one (1) or more persons. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-11 Options to purchase land; appraisals
Sec. 11. (a) When the land or any part of it is to be acquired by
purchase, the resolution shall also state the maximum proposed cost,
and the board may at any time prior to the adoption of the resolution
obtain from the owner or owners of the land an option for its
purchase, or the board may enter into a contract for the purchase of
the land upon the terms and conditions the board considers best. The
option or contract is subject to final confirmation or rescission of the
resolution, and subject further to the condition that the land be paid
for only out of the special fund resulting from the sale of grade
separation district bonds and the collection of benefit assessments,
or out of funds coming to the city from equitable settlements between
the parties. If the board desires to acquire any lots or parcels of land
by purchase, it shall appoint:
(1) one (1) freeholder residing in the city, or in the county in
which the city is located; and
(2) two (2) appraisers licensed under IC 25-34.1;
who are residents of Indiana, who are not interested in any land to be
acquired or in land which may incur local benefits under such
resolution, to appraise the value of the land. One (1) of the appraisers
appointed under subdivision (2) must reside not more than fifty (50)
miles from the property. The appraisers shall take an oath that they
have no interest in the matter and that they will honestly and
impartially make the valuation. The appraisers shall then proceed to
view the land and consider and determine its true market value at that
time.
(b) The appraisers shall submit a written report of their
appraisement to the board and the report shall be filed with and
become a part of the record of the proceeding. The board may not
exercise any option on the land or enter into a contract to purchase
the land at a higher price than the value named in the report. As added by Acts 1980, P.L.8, SEC.70. Amended by P.L.113-2006,
SEC.6.
IC 8-6-2.1-12 Title to acquired property
Sec. 12. The title to any lands, rights-of-way or other property
acquired under and pursuant to the resolution, whether by purchase
or by appropriation, shall not vest in the city until they are paid for
out of the special fund created by the sale of bonds and from benefit
assessments, or out of funds coming to the city from equitable
settlements between the parties. No indebtedness or obligation of any
kind may be incurred by the city in its corporate capacity on account
of the acquiring of any lands, rights-of-way or other property. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-13 Remonstrances; appeals
Sec. 13. (a) At the time fixed for the hearing, or at any time prior
to that, any owner of land, right-of-way or other property to be
appropriated under the resolution, and any railroad company or
companies, any street railway company, and any person owning real
or personal property situated within the city, may file a written
remonstrance with the board.
(b) At the hearing, which may be adjourned from time to time, the
board shall hear all persons interested in the proceedings and
consider all remonstrances that have been filed, and after considering
them, the board shall take final action and determine the public
necessity and convenience of the proposed improvement, and
confirm, or modify and confirm, or rescind the resolution. The final
action shall be duly entered of record, and is conclusive upon all
persons, except as provided in sections 4 through 8 of this chapter.
Any person who has remonstrated in writing and who is aggrieved by
the decision of the board may take an appeal to the circuit court in
the county in which the city is located. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-14 Filing of order and bond; hearing
Sec. 14. Within twenty (20) days after the final action of the
board, the remonstrator may file in the office of the clerk of the
circuit court a copy of the order of the board, not including, unless
he so desires, the maps, plans and specifications, and his
remonstrance to them, together with his bond conditioned to pay the
cost of the appeal if it is determined against him. All appeals shall be
consolidated and heard as one (1) cause of action by the court, and
the burden of proof is upon the remonstrators. The cause shall be
tried and determined summarily by the court without the intervention
of a jury, as other civil causes, and shall be given precedence over
other matters pending in the court. Upon the trial of the cause, the
court shall hear evidence upon the remonstrances and shall confirm
the final action of the board on the resolution, or sustain the
remonstrance or remonstrances to them, and the court may remand
the resolution for further proceedings. If the resolution is confirmed
the judgment of the court is conclusive upon all parties, and no
appeal lies from the judgment. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-15 Agreements concerning planning and completion of work projects
Sec. 15. The city, by its board of public works or board of public
works and safety, the Indiana state highway commission, the county
in which the city is located, by its board of commissioners, and the
railroad company or companies whose track or tracks the
improvement authorized in this chapter concern, may enter into a
written agreement as to the plan of proceeding with the work, the
allocation of the portions to be done by the respective parties, the
division of cost between railroads, the amount of work to be done
annually, the time within which the entire work is to be completed,
the method and times of making equitable settlements of the cost
between the parties, and any other matters tending to expedite the
efficient and economical completion of the improvement. The
agreement, however, may not have the effect of increasing the total
cost of the improvement above the estimate. The agreement shall be
filed with the board and considered a part of the resolution and
constitutes the basis of all proceedings on the matters embraced in
the agreement. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-16 Costs to be borne by parties in interest
Sec. 16. (a) The total cost of the improvement to be borne by all
the parties in interest includes the following:
(1) The cost of constructing the grade elimination structure and
the cost of raising or lowering the grade, or other alteration of
any public highway, the construction or reconstruction of the
pavement, including sidewalks and curbs, and the alteration,
relocation and construction of drains or sewers required by the
improvement.
(2) The cost of elevation, depression, alteration, removal,
relocation, construction and reconstruction of any railroad track
or tracks and other facilities within or without the city.
(3) The cost of any land, right-of-way, or other property
required for the improvement.
(4) The amount of damages, if any, recoverable under law by
any person due to the improvement.
(5) The compensation for services of the special engineer and
additional engineering force, and of special counsel, if any,
employed by the board, all of whom the board may employ.
(6) The cost of supervision and inspection, the giving of
notices, and all other expense necessarily incurred by the board
in connection with the proceedings and improvement.
(b) The total cost to be borne by all the parties in interest does not
include the expense of opening new or additional highways, or the
expense of establishing additional lanes of traffic to any highways,
or the expense of providing rights-of-way or other facilities which
represent an enlargement of or betterments to the facilities of any
railroad affected by the improvement. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-17 Agreements fixing cost of improvements borne by parties in
interest
Sec. 17. (a) The total cost of the improvement shall be borne by
all of the parties in interest, in accordance with a written agreement
or written agreements to be entered into by all the parties, fixing the
portion of the total cost to be borne by each party subject, however,
to the cost formula requirements set forth in section 4 of this chapter.
The total cost shall be divided among and paid by the parties in
accordance with the agreement or agreements. The portion of the
total cost to be borne by the city does not constitute an indebtedness
or obligation of the city in its corporate capacity, but shall be payable
only out of special taxes and benefit assessments as provided by this
chapter.
(b) The Indiana state highway commission, any city affected by
this chapter and the county in which the city is located, may each
respectively enter into a written agreement or written agreements.
(c) The agreement or agreements shall be executed on behalf of
the Indiana state highway commission by the members of it and shall
be binding upon the Indiana state highway commission. The
agreement or agreements shall be executed on behalf of the city by
the board and shall be binding on the city. The agreement or
agreements shall be executed on behalf of the county by the board of
county commissioners and shall be binding on the county.
(d) To the extent that funds of any federal agency may be
available to the Indiana state highway commission for use in paying
any portion of the total cost which may be chargeable to or assumed
by the Indiana state highway commission, the Indiana state highway
commission may use the federal funds, if permitted by applicable
federal laws, for the payment of the cost or any portion of it, or for
the payment of all or any portion of either the city's or county's share
of the cost; or the Indiana state highway commission may use the
federal funds for any combination of these purposes. The board may
apply for, accept, and use grants, loans or other financial assistance
from any municipal, county, state, or federal government agency. To
the extent any funds of any federal agency may be available to the
city or the county for use in paying the costs, the city and county may
use the federal funds, if permitted by applicable federal laws, for the
payment of any portion of the cost which is chargeable to or assumed
by the city and county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-18 Contracts; bidding; validity of proceedings and orders of board
and contract
Sec. 18. Any portion or portions of the work of improvement
under the resolution which is allotted to the city shall be done by
contract or contracts, and all contracts shall be let under statutes
governing the letting of contracts by the city. In event of the
execution of a contract for the work, the validity of the contract may
not subsequently be questioned by any person, except in a suit to
enjoin the performance of the contract instituted within ten (10) days
after its execution. All proceedings and orders of the board
preliminary and prior to the contract, and the contract, are considered
valid, conclusive and binding upon all persons and are not subject to
attack for any cause after the ten (10) day period after its execution
has expired. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-19 Warrants
Sec. 19. Any part of the city's portion of the total cost of the
improvement which is necessary for the city to pay prior to the
collection of benefit assessments under this chapter and prior to the
issue and sale of bonds under this chapter, shall be paid as follows:
the board shall, from time to time, certify the items of expense to the
controller or clerk-treasurer, directing him to pay those amounts, and
the controller or clerk-treasurer shall draw his warrant or warrants,
and the warrant or warrants shall be paid out of the general fund of
the city without appropriation being made by the common council;
or, in case there is no money in the general fund of the city not
otherwise appropriated, the city controller or clerk-treasurer shall
recommend to the common council the temporary transfer from other
funds of the city a sufficient amount to meet the items of expense, or
the making of a temporary loan for this purpose, and the common
council shall at once make the transfer of funds, or authorize the
temporary loan in the same manner that other temporary loans are
made by the city. The fund or funds of the city from which the
payments are made shall be fully reimbursed and repaid by the board
out of the special fund created by the sale of bonds and from benefit
assessments or out of funds coming to the city from equitable
settlements between the parties. The board may cause the amount for
the temporary advancements on work to be provided for in the
budget and tax levy of the city for the year when the funds are
anticipated to be needed. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-20 Accounting of improvement costs and disbursements; payments
and adjustments
Sec. 20. (a) The board, through its engineer, shall keep an account
of the total cost of the improvement, of all disbursements made
during the course of the work, and of all equitable settlements
between the parties contributing to the cost; but the total cost may
not exceed the estimate adopted in the resolution.
(b) From time to time during the progress of the work, and upon
completion of the improvement, the board shall make and adjust
equitable settlements and payments between the parties contributing
to the cost of the improvement so that the total cost of the
improvement is apportioned between the parties as determined by the
board consistent with this chapter.
(c) The equitable settlements and payments shall be made by the
board, either on its own initiative or on petition of any railroad
company charged with the work or any part of the work, or on
petition of either the Indiana state highway commission or of the
county in which the city is located, if the Indiana state highway
commission and the county participate in the cost of the
improvement.
(d) Any adjustment or adjustments are binding on all of the parties
unless any aggrieved party, within sixty (60) days after the entry of
an order of equitable settlement made by the board, files his
complaint to review the adjustment in the circuit court of the county
in which the city is located. The decree of the court is final. The
railroad company or companies, shall, upon the adjustment or decree,
pay their portions of the cost as directed. The Indiana state highway
commission shall, upon the adjustment or decree, pay its portion of
the costs as directed, and the payment shall be made out of the funds
of the commission or funds appropriated for the use of the
commission. The county council of the county in which the city is
located shall provide sufficient funds to pay the county's share of the
cost of the improvement, either by appropriating the necessary
amount of money from available funds on hand, or by the sale of
bonds. Upon each adjustment or decree, the county in which the city
is located shall pay the county's portion of the cost as directed by the
adjustment or decree out of the funds provided by the county council.
Upon each adjustment or decree, the city controller or clerk-treasurer
shall draw his warrant or warrants in payment of the city's portion of
the cost.
(e) All warrants may be drawn only against the special fund
arising from the special tax and special assessments provided for in
this chapter and from equitable settlements.
(f) The board may adopt supplemental resolutions and enter
orders from time to time as necessary to carry out the purpose of the
resolution. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-21 Special tax; taxing district
Sec. 21. (a) Upon final action of the board or circuit court,
confirming the resolution, all territory lying within the corporate
limits of the city shall become a special taxing district for grade
separation and railroad relocation and reconstruction purposes, and
all property, real and personal, located within the territorial limits of
the district shall be subject to a special tax for the purpose of
providing funds to pay the city's portion of the total cost of the
improvement.
(b) The special tax shall constitute the amount of benefits
resulting to all of the property from the proceedings, and shall be
levied in the manner provided for by this chapter. If the board
determines that any lots or parcels of land, exclusive of
improvements, lying within two thousand (2,000) feet of any grade
crossing eliminated or altered by the improvement, or within two
thousand (2,000) feet of any lands or rights-of-way abandoned for
railroad use or from which railroad facilities are to be removed, will
incur a particular benefit by reason of their proximity in addition to
the benefits received by them in common with all other property
located in the district, those lots and parcels of land which lie within
the corporate limits of the city shall be subject to a special
assessment for the benefits.
(c) The special assessment shall be determined in accordance with
this chapter, but the total amount of the additional benefits assessed
shall not in any case exceed forty percent (40%) of the city's share of
the total cost of the improvement; and the total amount of the
additional benefits assessed and finally confirmed or adjudged
against lots and parcels of land exclusive of improvements lying
within two thousand (2,000) feet shall be deducted from the city's
share of the total cost and the balance of the city's share of the total
cost, is the amount of the benefits resulting to all property in the
special taxing district, and the special tax shall be levied only for this
balance. Any lot or parcel of land owned and used or occupied for
railroad purposes at the time of the adoption of any resolution by any
railroad company whose tracks are affected by the resolution, or any
lot or parcel of land devoted to railroad purposes in connection with
and because of the improvement, is not subject to any special
assessment for the particular benefits. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-22 Roll of owners of property sought to be taken
Sec. 22. When the resolution is finally confirmed by the board,
the board shall require the preparation of a roll of all the owners or
holders of property sought to be taken, or who have incurred
damages, and also of all of the owners or holders of lots or parcels of
land lying within two thousand (2,000) feet of any grade crossing
eliminated or altered by the improvement or within two thousand
(2,000) feet of any lands or rights-of-way abandoned in whole or in
part for railroad use or from which railroad facilities are to be
removed, which will incur a particular benefit, as provided in section
21 of this chapter, from the grade separation or alteration and
railroad relocation as provided for in the resolution. In addition to the
list of names, the roll should show with reasonable certainty a
description of the property to be appropriated, or affected either
injuriously or beneficially, belonging to that person, and no greater
certainty in names and description is necessary to the validity of any
award or assessment than is required in the assessment of taxes. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-23 Determination of damages; publication of notice of land
appropriated, character of improvement, and preliminary awards;
remonstrances; irregularities in proceedings
Sec. 23. (a) Upon the completion of the roll, the board shall
consider, determine and award the amount of damages sustained by
the owners of the several parcels of land required to be appropriated,
if any, as provided for in the resolution, or which will incur damages,
and, then the board shall consider, determine and assess the amount
of particular benefits which will accrue to the several lots or parcels
of land, exclusive of improvements, lying within two thousand
(2,000) feet of any grade crossing eliminated or altered by the
improvement, or within two thousand (2,000) feet of any lands or
rights-of-way abandoned in whole or in part for railroad use or from
which railroad facilities are to be removed, as provided for in the
resolution, by reason of their proximity, in addition to the benefits
received by the lots or parcels of land in common with all property,
real and personal, located in the district. The total amount of the
particular benefits assessed against the lots and parcels of land,
exclusive of improvements, located within the two thousand (2,000)
feet, may not in any case exceed forty percent (40%) of the city's
share of the total cost of the grade separation improvement.
(b) When the roll is completed, the board shall publish, in
accordance with IC 5-3-1, a notice describing the location of the land
appropriated and the general character of the improvement, and
stating whether assessments have been made against lands within the
two thousand (2,000) foot distance. The notice shall also state that
the assessment roll, with the names of the owners in favor of whom
damages have been awarded and against whom assessments have
been made, and descriptions of property affected, with the amounts
of preliminary awards or assessments as to each piece or parcel of
property affected, is on file and can be seen in the office of the
board. The board shall also send by United States mail a notice to the
place of residence, if known, of persons owning lands to be taken, or
incurring damages, or against which special assessments have been
made, showing each item of the determination as to those persons. In
case any person affected is a nonresident, or his residence is
unknown, he is considered to have been notified by the publication.
The notices shall name a day not earlier than ten (10) days after the
last date of publication, or after the date of mailing, as above
provided, on which the board will receive and hear remonstrances
from persons with regard to the amount of their respective awards or
assessments. Persons not included in the roll of awards or damages
and claiming to be entitled to the same are considered to have been
notified of the pendency of the proceedings by the original notice of
the resolution of the board and by the publication required by this
section.
(c) If there are defects or irregularities of any kind in the
proceedings with respect to one (1) or more interested persons, they
do not affect the proceedings, except so far as they may affect the
interest or property of the person or persons, and do not avail any
other person. In case of any defect, supplementary proceedings of the
same general character as those otherwise prescribed by this chapter
may be instituted in order to correct the defect. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-24 Interests of mentally incompetent persons or infants; guardianship
Sec. 24. If any person having an interest in land affected by the
proceedings is mentally incompetent or under the age of eighteen
(18) years, the board shall certify that fact to its attorney. The
attorney shall apply to the proper court and secure the appointment
of a guardian for the person under eighteen (18) years of age or
mentally incompetent person. The board shall give notice to the
guardian, who shall appear and protect the interest of the protected
person. If the person under eighteen (18) years of age or mentally
incompetent person already has a guardian, the notice shall be served
upon the guardian. The requisites of notice to the guardian shall be
the same as for other notices. As added by Acts 1980, P.L.8, SEC.70. Amended by P.L.33-1989,
SEC.8.
IC 8-6-2.1-25 Appearance by remonstrators; appeals
Sec. 25. Any person notified or considered to be notified under
this chapter may appear before the board on the day fixed for hearing
the remonstrances with regard to awards and assessments, and
remonstrate in writing against them. All persons appearing before the
board having an interest in the proceedings shall be given a hearing.
After the remonstrances have been received and the hearings had, the
board shall either sustain or modify, by increasing or decreasing, the
awards or assessments. Any person remonstrating in writing who is
aggrieved by the decision of the board may, within ten (10) days
after the decision is made, take an appeal to the circuit court of the
county in which the city is located. The appeal affects only the
amount of the assessment or award of the person appealing. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-26 Procedure on appeal
Sec. 26. (a) The appeal shall be taken by filing an original
complaint in the circuit court of the county in which the city is
located against the board within the time named, setting forth the
action of the board in respect to the assessment or award, and stating
the facts relied upon as showing an error of the board. The court
shall rehear the matter of the assessment or award de novo, and
confirm, lower or increase the amount. The cause shall be summarily
tried by the court without the intervention of a jury, as in other civil
cases. A change of venue from the county may not be taken.
(b) All remonstrances upon which an appeal is taken may be
consolidated and heard as one (1) cause of action, and all the appeals
shall be heard and determined by the court within thirty (30) days
after the time of filing of the appeal. If the court reduces the amount
of benefit assessed against the land of the property owner by ten
percent (10%) or more of the assessment by the board, or increases
the amount of the damages awarded in his favor by ten percent (10%)
or more of the amount awarded by the board, the plaintiff in the
appeal shall recover costs, otherwise not.
(c) The amount of the judgment in the court shall be final, and no
appeal may be taken. However, any party in interest may take an
appeal from the judgment to the supreme court of Indiana, upon the
sole ground that the property in question has or has not incurred
damages recoverable under law. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-27 Assessment liens; payment; tax exemption
Sec. 27. (a) The assessment roll, upon final confirmation by the
board, shall be delivered to the controller or clerk-treasurer, and from
that time the respective amounts of benefits assessed shall severally
be liens, superior to all other liens except taxes, against the
respective lots or parcels of land upon which they are assessed. The
duties of the controller or clerk-treasurer are those prescribed by
statute in cities with regard to assessments for street improvements.
(b) The assessments of benefits are due and payable to the
controller or clerk-treasurer from the time of the delivery of the
assessment roll to him. If not paid within thirty (30) days, the board's
attorney shall proceed to foreclose the liens in a court as mortgages
are foreclosed with similar rights of redemption, and have them sold
to pay the assessments. The board shall recover costs with reasonable
attorney's fees and interest at the rate of six percent (6%) per annum.
(c) In all cases where the party against whom the assessment is
made is a resident of the city, a notice of the assessment and demand
for payment shall be delivered to him personally or mailed to his last
usual place of residence. All persons assessed for local benefits may,
within thirty (30) days after the confirmation of the assessments,
avail themselves of the right to pay the assessment installments in the
same manner as provided for the payment of assessments for street
improvements in cities, except that the board may provide that the
installments may be extended over a period of twenty (20) years,
which privilege shall also be stated in the notice.
(d) Statutes relating to the payment of street improvement
assessments by installments, the issuance of bonds and coupons to
anticipate assessments, and the rights of bondholders and
landowners, when not inconsistent with this chapter, shall apply and
be extended to assessments made under this chapter. When
assessment bonds are issued, the city controller or clerk-treasurer
shall sell the bonds promptly in the same manner and upon the same
notice conditions as grade separation district bonds are authorized to
be sold as provided in section 29 of this chapter, and the proceeds
shall be kept in a separate fund as provided for in section 30 of this
chapter. The assessment bonds shall be exempt from taxation for all
purposes. All interest and penalties on delinquencies shall go into the
special fund. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-28 Payment of damages
Sec. 28. (a) The board, upon the completion of the award of
damages, if any, or upon the determination of the appeals taken, shall
make out certificates for the proper amounts and in favor of the
proper persons. Presentation of the certificates to the city controller
or clerk-treasurer of the city entitles those persons to a warrant drawn
on the city treasury. The controller or clerk-treasurer shall pay the
persons named the amounts due them respectively, as shown by the
certificates, out of the separate and specific funds derived from the
sale of bonds and from benefit assessments provided for in section
30 of this chapter, or out of funds coming from equitable settlements
between the parties, and these payments may not be made from any
other source or funds.
(b) The certificates or vouchers shall, whenever practical, be
tendered actually to the person entitled to them, but where this is
impractical, they shall be kept for the persons in the office of the
board, and the making and filing of the certificates, in all cases, is
considered to be valid tender to the person entitled to them at the
time or as soon as there are sufficient funds to pay them. They shall
be delivered to the person on request. In case of dispute or doubt as
to which of various persons the money shall be paid, the board shall
make out the certificates in favor of the attorney appointed by the
board for the use of the persons entitled to them, and the attorney
shall draw the money and pay it into court, requiring the various
claimants to interplead and have their respective rights determined.
(c) If an injunction is obtained because damages have not been
paid or tendered, the board shall tender the amount of damages with
interest from the time of the entry of the property, if any has been
made, and all accrued costs. If there are sufficient funds to pay the
certificate, the injunction shall be removed. The pendency of an
appeal to the circuit court of a county does not affect the validity of
a tender made under this section, but the board may proceed with its
appropriation of the property in question. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-29 Bonds
Sec. 29. (a) In order to raise money to pay the city's portion of the
total cost of an improvement and in anticipation of the special benefit
tax to be levied, the board shall issue, in the name of the city, at one
(1) time, or from time to time as the proceeds are needed, the bonds
of the grade separation or railroad relocation and reconstruction
district not to exceed in aggregate amount the balance of the city's
portion of the total cost after deducting from the city's portion the
total amount of benefits, if any, which have been assessed by the
board and finally confirmed or adjudged against lots and parcels of
land exclusive of improvements lying within two thousand (2,000)
feet of any grade crossing eliminated or altered by the improvement,
or within two thousand (2,000) feet of any lands or rights-of-way
abandoned in whole or in part for railroad use or from which railroad
facilities are to be removed.
(b) The bonds may be issued in any denomination not exceeding
one thousand dollars ($1,000) each in not less than forty (40) nor
more than sixty (60) equal series, as the board determines, and shall
be payable one (1) series each six (6) months beginning on the first
day of July of the first year following the date of their issue. If the
bond issue is ordered in any calendar year after the date of the annual
tax levy, then the first series shall mature on the first day of July of
the second year and the balance of the bonds at the designated
regular intervals. The bonds shall be negotiable as inland bills of
exchange and shall bear interest payable on the first days of January
and July of each year, the first interest to be payable on the first
maturity date of the bonds.
(c) Upon adoption of a resolution ordering bonds, the board shall
certify a copy of the resolution to the controller or clerk-treasurer of
the city in which the grade separation district is located; that officer
shall prepare the bonds, and the mayor of the city shall execute the
bonds and the city controller or clerk-treasurer shall attest the
execution. The bonds shall be exempt from taxation for all purposes.
All bonds issued by the board shall be sold by the city controller or
clerk-treasurer to the highest bidder, but not at less than par and
accrued interest to date of delivery, after giving notice of sale of the
bonds by publication in accordance with IC 5-3-1. The publication
shall be made not less than fifteen (15) days prior to the date fixed
for the sale of the bonds.
(d) The bonds are not a corporate obligation or indebtedness of
the city, but constitute an indebtedness of the district as a special
taxing district, and the bonds and interest shall be payable only out
of a special tax levied upon all property of the special taxing district,
as in this chapter provided, and the bonds shall recite the terms upon
their face, together with the purposes for which they are issued.
(e) No suit to question the validity of the bonds issued for the
special taxing district, or to prevent their issue, may be maintained
after the date set for the sale of the bonds, and all bonds after that
date are incontestable for any cause. As added by Acts 1980, P.L.8, SEC.70. Amended by Acts 1980,
P.L.73, SEC.1.
IC 8-6-2.1-30 Proceeds from sale of bonds
Sec. 30. All proceeds from the sale of bonds issued under section
29 of this chapter, together with all money collected from benefit
assessments, or from the sale of assessment bonds, shall be kept as
a separate and specific fund, entitled grade separation or railroad
relocation and reconstruction fund, to pay the city's portion of the
total cost of the grade separation improvement, and no part of the
fund may be used for any other purpose. The fund shall be deposited
with the depository or depositories of other public funds of the city.
Any surplus remaining in the fund, after all the city's portion of the
total cost is fully paid, shall be paid into and become a part of the
grade separation or railroad relocation and reconstruction bond fund
as referred to in section 31 of this chapter.
As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-31 Special tax levy
Sec. 31. (a) In order to raise money to pay all bonds issued under
section 29 of this chapter, including interest, the common council of
the city shall levy each year a special tax upon all of the taxable
property, both real and personal, located within the territorial limits
of the special taxing district, in such manner as to pay the principal
of the bonds as they severally mature, together with all accruing
interest.
(b) The tax levied shall be collected by the county treasurer in the
same manner as other taxes are collected. As the tax is distributed to
the controller or clerk-treasurer it shall be deposited in a separate
fund, to be known as the grade separation or railroad relocation and
reconstruction bond fund, and shall be applied to the payment of the
special taxing district bonds and interest as they severally mature,
and to no other purposes. All accumulation of the fund prior to its
use for the payment of the bonds and interest shall be deposited in
the depository or depositories of other public funds in the city. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-32 Payment for lands acquired by purchase, contract, or eminent
domain; title to lands
Sec. 32. If the lands acquired for the improvement or any part of
it are secured by purchase or contract, the payment shall be made
according to the terms of the contract. If lands are taken by
condemnation, the amount of damages assessed shall be paid or
tendered within ninety (90) days after the final determination of the
condemnation proceedings, or as soon thereafter as the funds arising
from the bonds and the assessment of benefits are available. The title
to the lands, or that portion paid for or otherwise acquired for these
purposes, then vests in the city. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-33 Filing of description of acquired lands
Sec. 33. Within sixty (60) days after any land or right in it is paid
for and acquired under this chapter, the board shall file and have
recorded in the recorder's office in the county in which the land is
situated a description of it sufficiently accurate for its identification,
with a statement of the purpose for which it is acquired or taken. The
description shall be signed by a majority of the board. The board may
transfer to any railroad company or companies any property acquired
in connection with the improvement, but intended for the permanent
occupation or use of the railroad or railroads, after proper adjustment
in the equitable settlements between the parties. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-34 Limitations upon expenditures and appropriations
Sec. 34. No part of any of the funds raised by the city or received
by the city under this chapter may be expended, except upon
warrants drawn by the city controller or clerk-treasurer upon
vouchers of the board. No appropriation in any form is necessary, but
all funds arising under this chapter are appropriated to the respective
purposes named in this chapter, and are under the control of the
board, and the board may expend the funds for the purposes stated in
this chapter. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-35 Application of IC 8-6-3 to maintenance costs
Sec. 35. Maintenance costs requirements are governed, to the
extent applicable, by IC 8-6-3. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-36 Jurisdiction and authority of board of each city
Sec. 36. (a) The jurisdiction and authority of the board of each
city are complete in relation to all matters provided for in this
chapter, except in the levying of taxes. In carrying out this chapter it
is not necessary to comply with any other statute, except as
specifically provided.
(b) If no procedure is provided for by this chapter for doing
anything authorized or contemplated by it, the procedure provided by
other statutes in similar cases may be followed. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1
Chapter 2.1. Railroad Grade Crossing Separations
IC 8-6-2.1-1 Separation or alteration of grade levels of public highway
Sec. 1. The board of public works or board of public works and
safety, referred to in this chapter as the board, of a city may, by
resolution, require the separation or alteration of the grade levels of
any public highway in the city and of any railroad crossing the public
highway, either by carrying the public highway under or over the
railroad, or by carrying the railroad under or over the public
highway, or by any combination of these means. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-2 Agreements for removal of railroad facilities; relocation and
reconstruction of facilities
Sec. 2. The board may enter into an agreement or agreements with
any railroad company for the removal of any track, roadbed, yard,
station or other railroad facilities, and provide for the relocation and
reconstruction of those facilities or any part of them if the board
determines it necessary in connection with an improvement to
provide for the abandonment for railroad purposes of any
right-of-way, land or other property owned and used or occupied for
railroad purposes by any railroad company. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-3 State highway commission powers
Sec. 3. (a) The Indiana state highway commission shall participate
in the proceedings and in the cost of any improvements made
pursuant to the proceedings provided for by this chapter if any
improvements involve a highway which is part of the state highway
system or a street or highway selected by the Indiana state highway
commission as a route of a highway in the state highway system.
(b) If the Indiana state highway commission participates in any
proceedings as set out in this chapter and in the cost of improvements
made pursuant to the proceedings, the county in which the city is
located shall also participate in the proceedings and in the cost of any
improvements that are made pursuant to the proceedings. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-4 Preparation of maps and plans
Sec. 4. (a) Whenever the board of any city determines that public
necessity and convenience require the separation or alteration of the
grade of any highway and any railroad at their intersection in the
city, it shall order the preparation of general maps, and plans and
specifications comprehending all work and changes necessary or
incidental to the improvement, including the opening, widening,
change, vacation, elevation, depression or reconstruction of any
highway, and the elevation, depression, removal, relocation,
construction or reconstruction of the track, roadbed, yards, station,
or other facilities of any railroad, and also a description of all lands,
rights-of-way and other property necessary to be acquired in
connection with the improvement, and the manner in which they are
to be acquired, whether by purchase or by appropriation, together
with an estimate of the total cost to be incurred in connection with
the improvement, as the total cost is defined by this chapter.
(b) If the maps, plans and specifications provide for the
abandonment for railroad purposes of any right-of-way, land or other
property owned or used or occupied for railroad purposes by any
railroad company, and the removal of any track, roadbed, yard,
station or other facilities, requires the relocation and reconstruction
of the facilities, or any part of them, the board, prior to the adoption
of the resolution for the improvement, shall enter into an agreement
or agreements with the railroad company affected, for adjustment of
the costs and losses occasioned by the removal, relocation and
reconstruction, and the value of all the property abandoned for
railroad purposes and reclaimed for other uses, the apportionment of
the adjusted costs, losses and values between the railroads affected
and the city, and other matters necessarily related.
(c) Cost adjustments required by this chapter are governed by
IC 8-6-3, the provisions of which are incorporated in this chapter by
reference. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-5 Parties to agreements; submission of specifications, maps, and
plans; approval
Sec. 5. (a) If the Indiana state highway commission and the county
in which the city is located participate in the proceedings, the Indiana
state highway commission and the county shall become parties to the
agreement, and the agreement or agreements shall be included in and
be a part of the resolution for the improvement and shall be subject
to the final confirmation, or modification and confirmation, or
rescission of the resolution, but no modification of the agreement or
agreements shall be effective without the written consent of the
railroad company affected; and the consent shall be filed with the
board.
(b) The maps, plans and specifications shall be submitted by the
engineer selected by the board to the Indiana state highway
commission and to the board of commissioners of the county in
which the city is located, and if the maps, plans and specifications
meet the approval of the Indiana state highway commission and the
board of commissioners, the approval shall be endorsed in writing on
the documents.
(c) No further proceedings may be had pursuant to this chapter
until the general maps, plans and specifications have been approved
by the Indiana state highway commission and the board of
commissioners of the county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-6 Filing of maps, plans, and specifications; resolution; inspection
Sec. 6. (a) After the general maps, plans and specifications are
approved by the Indiana state highway commission and the board of
commissioners of the county, they shall be filed with the board by
the engineer. The board shall then adopt a resolution ordering the
separation or alteration of grades or relocation and reconstruction of
the facilities, or any part of them, as provided for in the maps, plans,
specifications and agreements and ordering the acquisition of the
property described within, and adopting all maps, plans,
specifications, agreements, descriptions and the estimate of cost,
allocating the portions of work to be done by the various parties,
prescribing the time within which the several portions of the work
shall be done, and declaring that the improvement provided for will
be of public necessity and convenience.
(b) The resolution, including all maps, plans, specifications,
agreements, descriptions and estimate, shall be open to inspection at
the office of the board by all persons interested in or affected by
them. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-7 Acquisition of property; cost agreements
Sec. 7. (a) For the purposes of this chapter, the board may acquire,
or order to be acquired, lands, rights-of-way and other property
within the city and within five (5) miles outside the corporate limits
of the city. All lands, rights-of-way and other property necessary to
be acquired in connection with the improvement may be acquired by
the board in the name of the city, or the board may, in the resolution,
order and require the railroad to acquire any portion of the same as
will permanently be occupied or used by the railroad. In the latter
event, the railroad shall acquire the lands, rights-of-way, or other
property specified in the resolution, either by purchase or by
appropriation in the manner prescribed by statute.
(b) If the work and changes provided for in the maps, plans and
specifications adopted in the resolution affects the tracks or other
facilities of more than one (1) railroad company, the railroad
companies affected may, prior to the final confirmation of the
resolution, file with the board their written agreement allocating
between the companies the cost to be borne by each of them
respectively.
(c) If the railroad companies fail to enter into a cost agreement,
the board shall incorporate in the resolution, before final
confirmation, a provision fixing the relative amount of costs to be
borne as between the railroad companies. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-8 Clearance and grade
Sec. 8. Where the highway is carried over the railroad, or where
one (1) railroad is carried over another railroad, the clearance from
the top of the railroad track to the bottom of the superstructure over
the track must be at least twenty-two (22) feet. The plans for the
improvement shall not require a permanent grade of any main line
railroad track to exceed three-tenths of one percent (.3%) unless a
greater grade is agreed upon by the railroad company affected. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-9 Notice of adoption of resolution or alteration of grade;
remonstrances
Sec. 9. (a) Upon the adoption of the resolution for separation or
alteration of grades, the board shall cause notice of the adoption and
intention, and of the fact that the maps, plans, specifications,
agreements and estimates have been prepared and can be inspected,
to be published in accordance with IC 5-3-1. The notice shall name
a day not less than twenty (20) days after the date of the last
publication on which the board will receive or hear remonstrances
from persons interested in or affected by the proceedings, and when
it will determine the public necessity and convenience of the project.
(b) A like notice shall be sent by mail to the owners of all lands
to be appropriated under and by the resolution, and in case any
landowner is a nonresident and his place of residence is known, a
like notice shall be mailed to him, but in event the nonresident
owner's residence is unknown by the board, then he is considered to
have been notified of the pendency of the proceedings by the
publication of notice. A like notice shall also be served on a resident
agent or officer of any railroad company or street railway company
whose tracks are affected by the proceeding, but failure to serve the
notice shall not invalidate the jurisdiction of the board in the
premises.
(c) If the Indiana state highway commission and the county in
which the city is located participate in the proceedings, then a like
notice shall be served upon the state highway commission and upon
the board of commissioners of the county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-10 Parties aggrieved
Sec. 10. All persons affected in any manner by the proceedings,
including all owners of real or personal property in the city, are
considered to be notified of the pendency of the proceedings, and of
all subsequent acts, hearings, adjournments, resolutions and orders
of the board, by the original notice by publication. In the resolution
and notice, separate descriptions of each piece or parcel of land are
not required, but it is sufficient to describe the property to be
purchased or appropriated by giving a description of the entire track
by metes and bounds, whether the track is composed of one (1) or
more lots or parcels, and whether owned by one (1) or more persons. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-11 Options to purchase land; appraisals
Sec. 11. (a) When the land or any part of it is to be acquired by
purchase, the resolution shall also state the maximum proposed cost,
and the board may at any time prior to the adoption of the resolution
obtain from the owner or owners of the land an option for its
purchase, or the board may enter into a contract for the purchase of
the land upon the terms and conditions the board considers best. The
option or contract is subject to final confirmation or rescission of the
resolution, and subject further to the condition that the land be paid
for only out of the special fund resulting from the sale of grade
separation district bonds and the collection of benefit assessments,
or out of funds coming to the city from equitable settlements between
the parties. If the board desires to acquire any lots or parcels of land
by purchase, it shall appoint:
(1) one (1) freeholder residing in the city, or in the county in
which the city is located; and
(2) two (2) appraisers licensed under IC 25-34.1;
who are residents of Indiana, who are not interested in any land to be
acquired or in land which may incur local benefits under such
resolution, to appraise the value of the land. One (1) of the appraisers
appointed under subdivision (2) must reside not more than fifty (50)
miles from the property. The appraisers shall take an oath that they
have no interest in the matter and that they will honestly and
impartially make the valuation. The appraisers shall then proceed to
view the land and consider and determine its true market value at that
time.
(b) The appraisers shall submit a written report of their
appraisement to the board and the report shall be filed with and
become a part of the record of the proceeding. The board may not
exercise any option on the land or enter into a contract to purchase
the land at a higher price than the value named in the report. As added by Acts 1980, P.L.8, SEC.70. Amended by P.L.113-2006,
SEC.6.
IC 8-6-2.1-12 Title to acquired property
Sec. 12. The title to any lands, rights-of-way or other property
acquired under and pursuant to the resolution, whether by purchase
or by appropriation, shall not vest in the city until they are paid for
out of the special fund created by the sale of bonds and from benefit
assessments, or out of funds coming to the city from equitable
settlements between the parties. No indebtedness or obligation of any
kind may be incurred by the city in its corporate capacity on account
of the acquiring of any lands, rights-of-way or other property. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-13 Remonstrances; appeals
Sec. 13. (a) At the time fixed for the hearing, or at any time prior
to that, any owner of land, right-of-way or other property to be
appropriated under the resolution, and any railroad company or
companies, any street railway company, and any person owning real
or personal property situated within the city, may file a written
remonstrance with the board.
(b) At the hearing, which may be adjourned from time to time, the
board shall hear all persons interested in the proceedings and
consider all remonstrances that have been filed, and after considering
them, the board shall take final action and determine the public
necessity and convenience of the proposed improvement, and
confirm, or modify and confirm, or rescind the resolution. The final
action shall be duly entered of record, and is conclusive upon all
persons, except as provided in sections 4 through 8 of this chapter.
Any person who has remonstrated in writing and who is aggrieved by
the decision of the board may take an appeal to the circuit court in
the county in which the city is located. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-14 Filing of order and bond; hearing
Sec. 14. Within twenty (20) days after the final action of the
board, the remonstrator may file in the office of the clerk of the
circuit court a copy of the order of the board, not including, unless
he so desires, the maps, plans and specifications, and his
remonstrance to them, together with his bond conditioned to pay the
cost of the appeal if it is determined against him. All appeals shall be
consolidated and heard as one (1) cause of action by the court, and
the burden of proof is upon the remonstrators. The cause shall be
tried and determined summarily by the court without the intervention
of a jury, as other civil causes, and shall be given precedence over
other matters pending in the court. Upon the trial of the cause, the
court shall hear evidence upon the remonstrances and shall confirm
the final action of the board on the resolution, or sustain the
remonstrance or remonstrances to them, and the court may remand
the resolution for further proceedings. If the resolution is confirmed
the judgment of the court is conclusive upon all parties, and no
appeal lies from the judgment. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-15 Agreements concerning planning and completion of work projects
Sec. 15. The city, by its board of public works or board of public
works and safety, the Indiana state highway commission, the county
in which the city is located, by its board of commissioners, and the
railroad company or companies whose track or tracks the
improvement authorized in this chapter concern, may enter into a
written agreement as to the plan of proceeding with the work, the
allocation of the portions to be done by the respective parties, the
division of cost between railroads, the amount of work to be done
annually, the time within which the entire work is to be completed,
the method and times of making equitable settlements of the cost
between the parties, and any other matters tending to expedite the
efficient and economical completion of the improvement. The
agreement, however, may not have the effect of increasing the total
cost of the improvement above the estimate. The agreement shall be
filed with the board and considered a part of the resolution and
constitutes the basis of all proceedings on the matters embraced in
the agreement. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-16 Costs to be borne by parties in interest
Sec. 16. (a) The total cost of the improvement to be borne by all
the parties in interest includes the following:
(1) The cost of constructing the grade elimination structure and
the cost of raising or lowering the grade, or other alteration of
any public highway, the construction or reconstruction of the
pavement, including sidewalks and curbs, and the alteration,
relocation and construction of drains or sewers required by the
improvement.
(2) The cost of elevation, depression, alteration, removal,
relocation, construction and reconstruction of any railroad track
or tracks and other facilities within or without the city.
(3) The cost of any land, right-of-way, or other property
required for the improvement.
(4) The amount of damages, if any, recoverable under law by
any person due to the improvement.
(5) The compensation for services of the special engineer and
additional engineering force, and of special counsel, if any,
employed by the board, all of whom the board may employ.
(6) The cost of supervision and inspection, the giving of
notices, and all other expense necessarily incurred by the board
in connection with the proceedings and improvement.
(b) The total cost to be borne by all the parties in interest does not
include the expense of opening new or additional highways, or the
expense of establishing additional lanes of traffic to any highways,
or the expense of providing rights-of-way or other facilities which
represent an enlargement of or betterments to the facilities of any
railroad affected by the improvement. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-17 Agreements fixing cost of improvements borne by parties in
interest
Sec. 17. (a) The total cost of the improvement shall be borne by
all of the parties in interest, in accordance with a written agreement
or written agreements to be entered into by all the parties, fixing the
portion of the total cost to be borne by each party subject, however,
to the cost formula requirements set forth in section 4 of this chapter.
The total cost shall be divided among and paid by the parties in
accordance with the agreement or agreements. The portion of the
total cost to be borne by the city does not constitute an indebtedness
or obligation of the city in its corporate capacity, but shall be payable
only out of special taxes and benefit assessments as provided by this
chapter.
(b) The Indiana state highway commission, any city affected by
this chapter and the county in which the city is located, may each
respectively enter into a written agreement or written agreements.
(c) The agreement or agreements shall be executed on behalf of
the Indiana state highway commission by the members of it and shall
be binding upon the Indiana state highway commission. The
agreement or agreements shall be executed on behalf of the city by
the board and shall be binding on the city. The agreement or
agreements shall be executed on behalf of the county by the board of
county commissioners and shall be binding on the county.
(d) To the extent that funds of any federal agency may be
available to the Indiana state highway commission for use in paying
any portion of the total cost which may be chargeable to or assumed
by the Indiana state highway commission, the Indiana state highway
commission may use the federal funds, if permitted by applicable
federal laws, for the payment of the cost or any portion of it, or for
the payment of all or any portion of either the city's or county's share
of the cost; or the Indiana state highway commission may use the
federal funds for any combination of these purposes. The board may
apply for, accept, and use grants, loans or other financial assistance
from any municipal, county, state, or federal government agency. To
the extent any funds of any federal agency may be available to the
city or the county for use in paying the costs, the city and county may
use the federal funds, if permitted by applicable federal laws, for the
payment of any portion of the cost which is chargeable to or assumed
by the city and county. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-18 Contracts; bidding; validity of proceedings and orders of board
and contract
Sec. 18. Any portion or portions of the work of improvement
under the resolution which is allotted to the city shall be done by
contract or contracts, and all contracts shall be let under statutes
governing the letting of contracts by the city. In event of the
execution of a contract for the work, the validity of the contract may
not subsequently be questioned by any person, except in a suit to
enjoin the performance of the contract instituted within ten (10) days
after its execution. All proceedings and orders of the board
preliminary and prior to the contract, and the contract, are considered
valid, conclusive and binding upon all persons and are not subject to
attack for any cause after the ten (10) day period after its execution
has expired. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-19 Warrants
Sec. 19. Any part of the city's portion of the total cost of the
improvement which is necessary for the city to pay prior to the
collection of benefit assessments under this chapter and prior to the
issue and sale of bonds under this chapter, shall be paid as follows:
the board shall, from time to time, certify the items of expense to the
controller or clerk-treasurer, directing him to pay those amounts, and
the controller or clerk-treasurer shall draw his warrant or warrants,
and the warrant or warrants shall be paid out of the general fund of
the city without appropriation being made by the common council;
or, in case there is no money in the general fund of the city not
otherwise appropriated, the city controller or clerk-treasurer shall
recommend to the common council the temporary transfer from other
funds of the city a sufficient amount to meet the items of expense, or
the making of a temporary loan for this purpose, and the common
council shall at once make the transfer of funds, or authorize the
temporary loan in the same manner that other temporary loans are
made by the city. The fund or funds of the city from which the
payments are made shall be fully reimbursed and repaid by the board
out of the special fund created by the sale of bonds and from benefit
assessments or out of funds coming to the city from equitable
settlements between the parties. The board may cause the amount for
the temporary advancements on work to be provided for in the
budget and tax levy of the city for the year when the funds are
anticipated to be needed. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-20 Accounting of improvement costs and disbursements; payments
and adjustments
Sec. 20. (a) The board, through its engineer, shall keep an account
of the total cost of the improvement, of all disbursements made
during the course of the work, and of all equitable settlements
between the parties contributing to the cost; but the total cost may
not exceed the estimate adopted in the resolution.
(b) From time to time during the progress of the work, and upon
completion of the improvement, the board shall make and adjust
equitable settlements and payments between the parties contributing
to the cost of the improvement so that the total cost of the
improvement is apportioned between the parties as determined by the
board consistent with this chapter.
(c) The equitable settlements and payments shall be made by the
board, either on its own initiative or on petition of any railroad
company charged with the work or any part of the work, or on
petition of either the Indiana state highway commission or of the
county in which the city is located, if the Indiana state highway
commission and the county participate in the cost of the
improvement.
(d) Any adjustment or adjustments are binding on all of the parties
unless any aggrieved party, within sixty (60) days after the entry of
an order of equitable settlement made by the board, files his
complaint to review the adjustment in the circuit court of the county
in which the city is located. The decree of the court is final. The
railroad company or companies, shall, upon the adjustment or decree,
pay their portions of the cost as directed. The Indiana state highway
commission shall, upon the adjustment or decree, pay its portion of
the costs as directed, and the payment shall be made out of the funds
of the commission or funds appropriated for the use of the
commission. The county council of the county in which the city is
located shall provide sufficient funds to pay the county's share of the
cost of the improvement, either by appropriating the necessary
amount of money from available funds on hand, or by the sale of
bonds. Upon each adjustment or decree, the county in which the city
is located shall pay the county's portion of the cost as directed by the
adjustment or decree out of the funds provided by the county council.
Upon each adjustment or decree, the city controller or clerk-treasurer
shall draw his warrant or warrants in payment of the city's portion of
the cost.
(e) All warrants may be drawn only against the special fund
arising from the special tax and special assessments provided for in
this chapter and from equitable settlements.
(f) The board may adopt supplemental resolutions and enter
orders from time to time as necessary to carry out the purpose of the
resolution. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-21 Special tax; taxing district
Sec. 21. (a) Upon final action of the board or circuit court,
confirming the resolution, all territory lying within the corporate
limits of the city shall become a special taxing district for grade
separation and railroad relocation and reconstruction purposes, and
all property, real and personal, located within the territorial limits of
the district shall be subject to a special tax for the purpose of
providing funds to pay the city's portion of the total cost of the
improvement.
(b) The special tax shall constitute the amount of benefits
resulting to all of the property from the proceedings, and shall be
levied in the manner provided for by this chapter. If the board
determines that any lots or parcels of land, exclusive of
improvements, lying within two thousand (2,000) feet of any grade
crossing eliminated or altered by the improvement, or within two
thousand (2,000) feet of any lands or rights-of-way abandoned for
railroad use or from which railroad facilities are to be removed, will
incur a particular benefit by reason of their proximity in addition to
the benefits received by them in common with all other property
located in the district, those lots and parcels of land which lie within
the corporate limits of the city shall be subject to a special
assessment for the benefits.
(c) The special assessment shall be determined in accordance with
this chapter, but the total amount of the additional benefits assessed
shall not in any case exceed forty percent (40%) of the city's share of
the total cost of the improvement; and the total amount of the
additional benefits assessed and finally confirmed or adjudged
against lots and parcels of land exclusive of improvements lying
within two thousand (2,000) feet shall be deducted from the city's
share of the total cost and the balance of the city's share of the total
cost, is the amount of the benefits resulting to all property in the
special taxing district, and the special tax shall be levied only for this
balance. Any lot or parcel of land owned and used or occupied for
railroad purposes at the time of the adoption of any resolution by any
railroad company whose tracks are affected by the resolution, or any
lot or parcel of land devoted to railroad purposes in connection with
and because of the improvement, is not subject to any special
assessment for the particular benefits. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-22 Roll of owners of property sought to be taken
Sec. 22. When the resolution is finally confirmed by the board,
the board shall require the preparation of a roll of all the owners or
holders of property sought to be taken, or who have incurred
damages, and also of all of the owners or holders of lots or parcels of
land lying within two thousand (2,000) feet of any grade crossing
eliminated or altered by the improvement or within two thousand
(2,000) feet of any lands or rights-of-way abandoned in whole or in
part for railroad use or from which railroad facilities are to be
removed, which will incur a particular benefit, as provided in section
21 of this chapter, from the grade separation or alteration and
railroad relocation as provided for in the resolution. In addition to the
list of names, the roll should show with reasonable certainty a
description of the property to be appropriated, or affected either
injuriously or beneficially, belonging to that person, and no greater
certainty in names and description is necessary to the validity of any
award or assessment than is required in the assessment of taxes. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-23 Determination of damages; publication of notice of land
appropriated, character of improvement, and preliminary awards;
remonstrances; irregularities in proceedings
Sec. 23. (a) Upon the completion of the roll, the board shall
consider, determine and award the amount of damages sustained by
the owners of the several parcels of land required to be appropriated,
if any, as provided for in the resolution, or which will incur damages,
and, then the board shall consider, determine and assess the amount
of particular benefits which will accrue to the several lots or parcels
of land, exclusive of improvements, lying within two thousand
(2,000) feet of any grade crossing eliminated or altered by the
improvement, or within two thousand (2,000) feet of any lands or
rights-of-way abandoned in whole or in part for railroad use or from
which railroad facilities are to be removed, as provided for in the
resolution, by reason of their proximity, in addition to the benefits
received by the lots or parcels of land in common with all property,
real and personal, located in the district. The total amount of the
particular benefits assessed against the lots and parcels of land,
exclusive of improvements, located within the two thousand (2,000)
feet, may not in any case exceed forty percent (40%) of the city's
share of the total cost of the grade separation improvement.
(b) When the roll is completed, the board shall publish, in
accordance with IC 5-3-1, a notice describing the location of the land
appropriated and the general character of the improvement, and
stating whether assessments have been made against lands within the
two thousand (2,000) foot distance. The notice shall also state that
the assessment roll, with the names of the owners in favor of whom
damages have been awarded and against whom assessments have
been made, and descriptions of property affected, with the amounts
of preliminary awards or assessments as to each piece or parcel of
property affected, is on file and can be seen in the office of the
board. The board shall also send by United States mail a notice to the
place of residence, if known, of persons owning lands to be taken, or
incurring damages, or against which special assessments have been
made, showing each item of the determination as to those persons. In
case any person affected is a nonresident, or his residence is
unknown, he is considered to have been notified by the publication.
The notices shall name a day not earlier than ten (10) days after the
last date of publication, or after the date of mailing, as above
provided, on which the board will receive and hear remonstrances
from persons with regard to the amount of their respective awards or
assessments. Persons not included in the roll of awards or damages
and claiming to be entitled to the same are considered to have been
notified of the pendency of the proceedings by the original notice of
the resolution of the board and by the publication required by this
section.
(c) If there are defects or irregularities of any kind in the
proceedings with respect to one (1) or more interested persons, they
do not affect the proceedings, except so far as they may affect the
interest or property of the person or persons, and do not avail any
other person. In case of any defect, supplementary proceedings of the
same general character as those otherwise prescribed by this chapter
may be instituted in order to correct the defect. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-24 Interests of mentally incompetent persons or infants; guardianship
Sec. 24. If any person having an interest in land affected by the
proceedings is mentally incompetent or under the age of eighteen
(18) years, the board shall certify that fact to its attorney. The
attorney shall apply to the proper court and secure the appointment
of a guardian for the person under eighteen (18) years of age or
mentally incompetent person. The board shall give notice to the
guardian, who shall appear and protect the interest of the protected
person. If the person under eighteen (18) years of age or mentally
incompetent person already has a guardian, the notice shall be served
upon the guardian. The requisites of notice to the guardian shall be
the same as for other notices. As added by Acts 1980, P.L.8, SEC.70. Amended by P.L.33-1989,
SEC.8.
IC 8-6-2.1-25 Appearance by remonstrators; appeals
Sec. 25. Any person notified or considered to be notified under
this chapter may appear before the board on the day fixed for hearing
the remonstrances with regard to awards and assessments, and
remonstrate in writing against them. All persons appearing before the
board having an interest in the proceedings shall be given a hearing.
After the remonstrances have been received and the hearings had, the
board shall either sustain or modify, by increasing or decreasing, the
awards or assessments. Any person remonstrating in writing who is
aggrieved by the decision of the board may, within ten (10) days
after the decision is made, take an appeal to the circuit court of the
county in which the city is located. The appeal affects only the
amount of the assessment or award of the person appealing. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-26 Procedure on appeal
Sec. 26. (a) The appeal shall be taken by filing an original
complaint in the circuit court of the county in which the city is
located against the board within the time named, setting forth the
action of the board in respect to the assessment or award, and stating
the facts relied upon as showing an error of the board. The court
shall rehear the matter of the assessment or award de novo, and
confirm, lower or increase the amount. The cause shall be summarily
tried by the court without the intervention of a jury, as in other civil
cases. A change of venue from the county may not be taken.
(b) All remonstrances upon which an appeal is taken may be
consolidated and heard as one (1) cause of action, and all the appeals
shall be heard and determined by the court within thirty (30) days
after the time of filing of the appeal. If the court reduces the amount
of benefit assessed against the land of the property owner by ten
percent (10%) or more of the assessment by the board, or increases
the amount of the damages awarded in his favor by ten percent (10%)
or more of the amount awarded by the board, the plaintiff in the
appeal shall recover costs, otherwise not.
(c) The amount of the judgment in the court shall be final, and no
appeal may be taken. However, any party in interest may take an
appeal from the judgment to the supreme court of Indiana, upon the
sole ground that the property in question has or has not incurred
damages recoverable under law. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-27 Assessment liens; payment; tax exemption
Sec. 27. (a) The assessment roll, upon final confirmation by the
board, shall be delivered to the controller or clerk-treasurer, and from
that time the respective amounts of benefits assessed shall severally
be liens, superior to all other liens except taxes, against the
respective lots or parcels of land upon which they are assessed. The
duties of the controller or clerk-treasurer are those prescribed by
statute in cities with regard to assessments for street improvements.
(b) The assessments of benefits are due and payable to the
controller or clerk-treasurer from the time of the delivery of the
assessment roll to him. If not paid within thirty (30) days, the board's
attorney shall proceed to foreclose the liens in a court as mortgages
are foreclosed with similar rights of redemption, and have them sold
to pay the assessments. The board shall recover costs with reasonable
attorney's fees and interest at the rate of six percent (6%) per annum.
(c) In all cases where the party against whom the assessment is
made is a resident of the city, a notice of the assessment and demand
for payment shall be delivered to him personally or mailed to his last
usual place of residence. All persons assessed for local benefits may,
within thirty (30) days after the confirmation of the assessments,
avail themselves of the right to pay the assessment installments in the
same manner as provided for the payment of assessments for street
improvements in cities, except that the board may provide that the
installments may be extended over a period of twenty (20) years,
which privilege shall also be stated in the notice.
(d) Statutes relating to the payment of street improvement
assessments by installments, the issuance of bonds and coupons to
anticipate assessments, and the rights of bondholders and
landowners, when not inconsistent with this chapter, shall apply and
be extended to assessments made under this chapter. When
assessment bonds are issued, the city controller or clerk-treasurer
shall sell the bonds promptly in the same manner and upon the same
notice conditions as grade separation district bonds are authorized to
be sold as provided in section 29 of this chapter, and the proceeds
shall be kept in a separate fund as provided for in section 30 of this
chapter. The assessment bonds shall be exempt from taxation for all
purposes. All interest and penalties on delinquencies shall go into the
special fund. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-28 Payment of damages
Sec. 28. (a) The board, upon the completion of the award of
damages, if any, or upon the determination of the appeals taken, shall
make out certificates for the proper amounts and in favor of the
proper persons. Presentation of the certificates to the city controller
or clerk-treasurer of the city entitles those persons to a warrant drawn
on the city treasury. The controller or clerk-treasurer shall pay the
persons named the amounts due them respectively, as shown by the
certificates, out of the separate and specific funds derived from the
sale of bonds and from benefit assessments provided for in section
30 of this chapter, or out of funds coming from equitable settlements
between the parties, and these payments may not be made from any
other source or funds.
(b) The certificates or vouchers shall, whenever practical, be
tendered actually to the person entitled to them, but where this is
impractical, they shall be kept for the persons in the office of the
board, and the making and filing of the certificates, in all cases, is
considered to be valid tender to the person entitled to them at the
time or as soon as there are sufficient funds to pay them. They shall
be delivered to the person on request. In case of dispute or doubt as
to which of various persons the money shall be paid, the board shall
make out the certificates in favor of the attorney appointed by the
board for the use of the persons entitled to them, and the attorney
shall draw the money and pay it into court, requiring the various
claimants to interplead and have their respective rights determined.
(c) If an injunction is obtained because damages have not been
paid or tendered, the board shall tender the amount of damages with
interest from the time of the entry of the property, if any has been
made, and all accrued costs. If there are sufficient funds to pay the
certificate, the injunction shall be removed. The pendency of an
appeal to the circuit court of a county does not affect the validity of
a tender made under this section, but the board may proceed with its
appropriation of the property in question. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-29 Bonds
Sec. 29. (a) In order to raise money to pay the city's portion of the
total cost of an improvement and in anticipation of the special benefit
tax to be levied, the board shall issue, in the name of the city, at one
(1) time, or from time to time as the proceeds are needed, the bonds
of the grade separation or railroad relocation and reconstruction
district not to exceed in aggregate amount the balance of the city's
portion of the total cost after deducting from the city's portion the
total amount of benefits, if any, which have been assessed by the
board and finally confirmed or adjudged against lots and parcels of
land exclusive of improvements lying within two thousand (2,000)
feet of any grade crossing eliminated or altered by the improvement,
or within two thousand (2,000) feet of any lands or rights-of-way
abandoned in whole or in part for railroad use or from which railroad
facilities are to be removed.
(b) The bonds may be issued in any denomination not exceeding
one thousand dollars ($1,000) each in not less than forty (40) nor
more than sixty (60) equal series, as the board determines, and shall
be payable one (1) series each six (6) months beginning on the first
day of July of the first year following the date of their issue. If the
bond issue is ordered in any calendar year after the date of the annual
tax levy, then the first series shall mature on the first day of July of
the second year and the balance of the bonds at the designated
regular intervals. The bonds shall be negotiable as inland bills of
exchange and shall bear interest payable on the first days of January
and July of each year, the first interest to be payable on the first
maturity date of the bonds.
(c) Upon adoption of a resolution ordering bonds, the board shall
certify a copy of the resolution to the controller or clerk-treasurer of
the city in which the grade separation district is located; that officer
shall prepare the bonds, and the mayor of the city shall execute the
bonds and the city controller or clerk-treasurer shall attest the
execution. The bonds shall be exempt from taxation for all purposes.
All bonds issued by the board shall be sold by the city controller or
clerk-treasurer to the highest bidder, but not at less than par and
accrued interest to date of delivery, after giving notice of sale of the
bonds by publication in accordance with IC 5-3-1. The publication
shall be made not less than fifteen (15) days prior to the date fixed
for the sale of the bonds.
(d) The bonds are not a corporate obligation or indebtedness of
the city, but constitute an indebtedness of the district as a special
taxing district, and the bonds and interest shall be payable only out
of a special tax levied upon all property of the special taxing district,
as in this chapter provided, and the bonds shall recite the terms upon
their face, together with the purposes for which they are issued.
(e) No suit to question the validity of the bonds issued for the
special taxing district, or to prevent their issue, may be maintained
after the date set for the sale of the bonds, and all bonds after that
date are incontestable for any cause. As added by Acts 1980, P.L.8, SEC.70. Amended by Acts 1980,
P.L.73, SEC.1.
IC 8-6-2.1-30 Proceeds from sale of bonds
Sec. 30. All proceeds from the sale of bonds issued under section
29 of this chapter, together with all money collected from benefit
assessments, or from the sale of assessment bonds, shall be kept as
a separate and specific fund, entitled grade separation or railroad
relocation and reconstruction fund, to pay the city's portion of the
total cost of the grade separation improvement, and no part of the
fund may be used for any other purpose. The fund shall be deposited
with the depository or depositories of other public funds of the city.
Any surplus remaining in the fund, after all the city's portion of the
total cost is fully paid, shall be paid into and become a part of the
grade separation or railroad relocation and reconstruction bond fund
as referred to in section 31 of this chapter.
As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-31 Special tax levy
Sec. 31. (a) In order to raise money to pay all bonds issued under
section 29 of this chapter, including interest, the common council of
the city shall levy each year a special tax upon all of the taxable
property, both real and personal, located within the territorial limits
of the special taxing district, in such manner as to pay the principal
of the bonds as they severally mature, together with all accruing
interest.
(b) The tax levied shall be collected by the county treasurer in the
same manner as other taxes are collected. As the tax is distributed to
the controller or clerk-treasurer it shall be deposited in a separate
fund, to be known as the grade separation or railroad relocation and
reconstruction bond fund, and shall be applied to the payment of the
special taxing district bonds and interest as they severally mature,
and to no other purposes. All accumulation of the fund prior to its
use for the payment of the bonds and interest shall be deposited in
the depository or depositories of other public funds in the city. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-32 Payment for lands acquired by purchase, contract, or eminent
domain; title to lands
Sec. 32. If the lands acquired for the improvement or any part of
it are secured by purchase or contract, the payment shall be made
according to the terms of the contract. If lands are taken by
condemnation, the amount of damages assessed shall be paid or
tendered within ninety (90) days after the final determination of the
condemnation proceedings, or as soon thereafter as the funds arising
from the bonds and the assessment of benefits are available. The title
to the lands, or that portion paid for or otherwise acquired for these
purposes, then vests in the city. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-33 Filing of description of acquired lands
Sec. 33. Within sixty (60) days after any land or right in it is paid
for and acquired under this chapter, the board shall file and have
recorded in the recorder's office in the county in which the land is
situated a description of it sufficiently accurate for its identification,
with a statement of the purpose for which it is acquired or taken. The
description shall be signed by a majority of the board. The board may
transfer to any railroad company or companies any property acquired
in connection with the improvement, but intended for the permanent
occupation or use of the railroad or railroads, after proper adjustment
in the equitable settlements between the parties. As added by Acts 1980, P.L.8, SEC.70. IC 8-6-2.1-34 Limitations upon expenditures and appropriations
Sec. 34. No part of any of the funds raised by the city or received
by the city under this chapter may be expended, except upon
warrants drawn by the city controller or clerk-treasurer upon
vouchers of the board. No appropriation in any form is necessary, but
all funds arising under this chapter are appropriated to the respective
purposes named in this chapter, and are under the control of the
board, and the board may expend the funds for the purposes stated in
this chapter. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-35 Application of IC 8-6-3 to maintenance costs
Sec. 35. Maintenance costs requirements are governed, to the
extent applicable, by IC 8-6-3. As added by Acts 1980, P.L.8, SEC.70.
IC 8-6-2.1-36 Jurisdiction and authority of board of each city
Sec. 36. (a) The jurisdiction and authority of the board of each
city are complete in relation to all matters provided for in this
chapter, except in the levying of taxes. In carrying out this chapter it
is not necessary to comply with any other statute, except as
specifically provided.
(b) If no procedure is provided for by this chapter for doing
anything authorized or contemplated by it, the procedure provided by
other statutes in similar cases may be followed. As added by Acts 1980, P.L.8, SEC.70.
