§ 36-7-4-1015 — Commitments; enforcement

Indiana § 36-7-4-1015

• Jurisdiction: Indiana
• Title 36: LOCAL GOVERNMENT
• Art. 7: PLANNING AND DEVELOPMENT
• Ch. 4: Local Planning and Zoning

Text

(a) As a condition to the:
(1) adoption of a rezoning proposal;
(2) primary approval of a proposed subdivision plat or
development plan;
(3) approval of a vacation of all or part of the plat; or
(4) approval of an application for a:
(A) special exception;
(B) special use;
(C) contingent use;
(D) conditional use; or
(E) variance;
the owner of a parcel of real property may be required or allowed to
make a commitment concerning the use or development of that parcel.
(b) Commitments are subject to the following provisions:
(1) A commitment must be in writing.
(2) Unless the written commitment is modified or terminated in
accordance with this subsection, a written commitment is binding
on the owner of the parcel.
(3) A commitment shall be recorded in the office of the county
recorder. After a commitment is recorded, it is binding on a
subsequent owner or any other person who acquires an interest in
the parcel. However, a commitment is binding on the owner who
makes the commitment even if the commitment is unrecorded. An
unrecorded commitment is binding on a subsequent owner or
other person acquiring an interest in the parcel only if that
subsequent owner or other person has actual notice of the
commitment.
(4) A commitment may contain terms providing for its own
expiration. A commitment may also contain terms providing that
the commitment automatically terminates:
(A) if the zoning district or classification applicable to the
parcel is changed;
(B) if the land use to which the commitment relates is changed;
or
(C) otherwise in accordance with the rules of the plan
commission, board of zoning appeals, or legislative body to
which the commitment is made.
(5) Except for a commitment that expires or automatically
terminates under subdivision (4), or except as provided in
subdivision (10), a commitment may be modified or terminated:
(A) by a decision of the plan commission or board of zoning
appeals to which the commitment was made; or
(B) by the decision of the legislative body, if the commitment
is made as part of a rezoning proposal being considered by the
legislative body under the 600 or 1500 series of this chapter.
A decision by a plan commission or board of zoning appeals must
be made at a public hearing after notice of the hearing has been
provided under the rules of the plan commission or board of
zoning appeals, as the case may be.
(6) During the time a rezoning proposal is being considered by the
legislative body under the 600 or 1500 series of this chapter, the
owner may make a new commitment to the legislative body or
modify the terms of a commitment that was made when the
proposal was being considered by the plan commission. This
subdivision does not apply to a commitment to which subdivision
(10) applies.
(7) Except as provided in subdivision (8), no further action of the
plan commission is required for an action taken by the legislative
body under subdivision (6) to be effective.
(8) If a commitment is modified under subdivision (6) and the
effect of the modification is to make the commitment less
stringent, the modified commitment shall be referred to the plan
commission for further review. The plan commission shall, not
later than forty-five (45) days after referral of the modified
commitment:
(A) ratify the modified commitment; or
(B) certify a recommendation to the legislative body that the
commitment be further modified.
After considering the recommendation of the plan commission,
the legislative body shall then make the final decision on the
terms of the modified commitment.
(9) Requiring or allowing a commitment to be made does not
obligate the plan commission, board of zoning appeals, or
legislative body, as applicable, to adopt, approve, or favorably
recommend the proposal or application to which the commitment
relates.
(10) This subdivision applies only to a commitment that is made
before the parcel subject to the commitment is annexed by a
municipality and after the annexation, the parcel becomes subject
to the jurisdiction of a plan commission, board of zoning appeals,
or legislative body other than the plan commission, board of
zoning appeals, or legislative body to which the commitment was
made. A commitment may be modified or terminated only by a
decision of the legislative body of the annexing municipality. The
decision must be made by the legislative body of the annexing
municipality after considering the recommendation of the
municipal plan commission certified to the legislative body after
a public hearing held by the plan commission in accordance with
the commission's rules. The rules of the municipal plan
commission must include a provision requiring notice to be sent
by certified mail at least ten (10) days before the date of the
hearing to the following:
(A) The plan commission, board of zoning appeals, or
legislative body to which the commitment was made.
(B) Each owner of real property, as shown on the county
auditor's current tax list, whose real property is located within
three hundred (300) feet of the parcel subject to the
commitment.
(c) The plan commission or board of zoning appeals may adopt
rules:
(1) governing the creation, form, recording, effectiveness,
modification, and termination of commitments that are made
before the plan commission or board of zoning appeals; and
(2) designating which specially affected persons and classes of
specially affected persons are entitled to enforce commitments.
(d) An action to enforce a commitment may be brought in the circuit
or superior court of the county by:
(1) the plan commission, the board of zoning appeals, or the
legislative body before which the commitment was made;
(2) in the case of a commitment:
(A) modified under subsection (b)(10); or
(B) continued in effect upon annexation;
the legislative body of the municipality that annexed the real
property subject to the commitment, if the annexation is effective
after the date the commitment was made;
(3) any person who was entitled to enforce a commitment under
the rules of the plan commission or board of zoning appeals in
force at the time the commitment was made; or
(4) any other specially affected person who was designated in the
commitment.
(e) A person bringing an action to enforce a commitment may
request mandatory or prohibitory injunctive relief through the granting
of a temporary restraining order, preliminary injunction, or permanent
injunction. If an action to enforce a commitment is successful, the
respondent shall bear the costs of the action. A change of venue from
the county may not be granted in such an action.
(f) In an action to enforce a commitment, it is not a defense that:
(1) no consideration was given for the commitment;
(2) the commitment does not benefit any designated parcel of
property;
(3) the document setting forth the commitment lacks a seal;
(4) there is no privity of estate;
(5) there is not privity of contract; or
(6) there is no proof of damages.
(g) The following types of conditions, as authorized by this chapter,
are not considered commitments and are not subject to subsection (b):
(1) A condition imposed upon primary approval of a plat that
must be met before secondary approval of the plat may be granted
under the 700 series of this chapter.
(2) A condition imposed upon the approval of an exception, a use,
a variance, or a development plan that must be met before an
improvement location permit may be issued under the 800 series
of this chapter.
(3) A condition imposed upon an approval relative to any other
development requirement that must be met before any other
secondary approval may be granted or building permit may be
issued under this chapter.
(4) A condition that was imposed before July 1, 2011, on an
approval relative to any development requirement. However, this
subdivision applies only if a copy of the condition has been filed
and permanently maintained as a public record in the office of the
plan commission or board of zoning appeals that imposed the
condition.
(h) Covenants, easements, equitable servitudes, and other land use
restrictions created in accordance with law are not considered
commitments and are not subject to subsection (b).
(i) This subsection applies only to a commitment made as part of a
rezoning proposal being considered by the legislative body under the
600 or 1500 series of this chapter. A written commitment may not
abrogate the authority of a legislative body to modify or terminate a
commitment under this section.
[Pre-Local Government Recodification Citations:
18-7-2-84.1 part; 18-7-4-1015 part; 18-7-4-91; 18-7-5-95.]
As added by Acts 1981, P.L.309, SEC.23. Amended by
P.L.320-1995, SEC.20; P.L.126-2011, SEC.36; P.L.130-2014,
SEC.1.