§ 36-9-25-15 — Incorporation of territory by board; exemption from requirement to connect to district's sewer system and discontinue use of sewage disposal system on property; requirements; district receiving approval of sewer project by Indiana finance authority before January 1, 2022; exemption not applicable; notice

(a) The board, on its own initiative,
whenever any territory, by its contour and watershed, or because of the
extension of sewers by the municipality, is capable of draining sewage
into or connecting with the sanitary system, may incorporate any
territory, whether platted or unplatted, into the district by adopting a
resolution to that effect describing the reason it is to be included. A
certified copy of the resolution is conclusive evidence in any
proceeding that the territory described was properly incorporated and
constitutes a part of the district, subject to this chapter.
(b) Immediately after the passage of a resolution under subsection
(a), a notice stating the time and place for a public hearing on the
resolution shall be published in accordance with IC 5-3-1. By the date
and time of the hearing any affected person may file in the office of the
board a written remonstrance to having the person's lands included.
The board shall either confirm, modify, or rescind the resolution after
the hearing. An appeal may be taken from the decision by one (1) or
more persons considering themselves aggrieved or injuriously affected,
as long as those appealing have filed written remonstrances, as
provided in this subsection, by filing their complaint within thirty (30)
days after the final decision of the board. The appeal shall be governed
by IC 34-13-6.
(c) If the court is satisfied upon hearing an appeal under subsection
(b):
(1) that less than seventy-five percent (75%) of the persons
owning property in the territory sought to be incorporated in the
district have remonstrated; and
(2) that the incorporation of the territory into the district will be
for its interest and will cause no manifest injury to the persons
owning property in the territory;
the court shall so find and the incorporation shall be ordered. If the
court is satisfied that seventy-five percent (75%) or more of the persons
owning property in the territory sought to be incorporated have
remonstrated, then the incorporation may not be ordered unless the
court further finds from the evidence that unless it is incorporated, the
health and welfare of residents of the territory or of the adjoining lands
will be materially affected and that the safety and welfare of the
inhabitants and property of other persons and property will be
endangered.
(d) Pending an appeal under subsection (b) and during the time
within which the appeal may be taken, the territory sought to be
incorporated is not a part of the district. Upon the determination of the
appeal, the judgment must particularly describe the resolution upon
which the appeal is based. The clerk of the court shall deliver a
certified copy of the judgment to the secretary of the board, who shall
record it in the minute book of the board and make a cross-reference to
the page upon the margin where the original resolution was recorded.
If a decision is adverse to an incorporation, further proceedings may
not be taken by the board to incorporate that territory within the district
for a period of one (1) year after the rendition of the judgment.
(e) Except as provided in subsection (n) and subject to subsections
(f) through (m), a property owner whose property is incorporated into
a district under this section or section 14(b) of this chapter, regardless
of whether the property owner has filed a written remonstrance or an
appeal with respect to the incorporation, is exempt from a requirement
to connect to the district's sewer system and to discontinue use of a
sewage disposal system on the property owner's property if all of the
following conditions are met:
(1) The property owner's sewage disposal system is a septic tank
soil absorption system (as defined in IC 13-11-2-199.5) or
constructed wetland septic system (as defined in IC 36-9-23-30.1(a)) that:
(A) was new at the time of installation; and
(B) was approved in writing by the local health department, the
department's designee, or a qualified inspector.
(2) The property owner, at the property owner's own expense,
obtains a written determination from the local health department
or the department's designee that the property owner's sewage
disposal system is not failing. The local health department or the
department's designee shall provide the owner with a written
determination not later than sixty (60) days after receipt of the
owner's request. If the local health department or the department's
designee fails to provide a written determination within the time
set forth in this subdivision, the owner, at the owner's expense,
may obtain a written determination from a qualified inspector. If
the local health department or the department's designee
determines that the sewage disposal system is failing, the property
owner may appeal the determination to the board of the local
health department. The decision of the board of the local health
department is final and binding.
(3) The property owner provides the board with:
(A) a written notification of potential qualification for the
exemption, as described in subsection (h); and
(B) the written determination described in subdivision (2);
within the time limits set forth in subsection (h).
(f) If the property owner, within the time allowed under subsection
(h), notifies the board in writing of the property owner's potential
qualification for the exemption, the board shall, until the property
owner's eligibility for the exemption is determined, suspend the
requirement that the property owner discontinue use of the property
owner's sewage disposal system and connect to the district's sewer
system.
(g) A property owner who qualifies for the exemption provided
under this section may not be required to connect to the district's sewer
system for a period of ten (10) years beginning on the date of the
written determination of the local health department, the department's
designee, or a qualified inspector under subsection (e)(2) that the
property owner's sewage disposal system is not failing. A property
owner may apply for two (2) five (5) year extensions of the exemption
provided under this section by following the procedures set forth in this
section. If ownership of an exempt property is transferred during a
valid exemption period, including during an extension of an initial
exemption:
(1) the exemption applies to the subsequent owner of the property
for the remainder of the exemption period during which the
transfer occurred; and
(2) the subsequent owner may apply for any remaining
extensions.
However, the total period during which a property may be exempt from
the requirement to connect to a district's sewer system under this
section may not exceed twenty (20) years, regardless of ownership of
the property.
(h) To qualify for an exemption under this section, a property owner
must:
(1) not later than sixty (60) days after being notified of the
requirement to connect to the district's sewer system, notify the
board in writing that the property owner qualifies for an
exemption under this section; and
(2) not later than one hundred twenty (120) days after the board
receives the written notice provided under subdivision (1),
provide the board with the written determination required under
subsection (e)(2).
(i) When a property owner who qualifies for an exemption under
this section subsequently discontinues use of the property owner's
sewage disposal system and connects to the district's sewer system, the
property owner may be required to pay only the following to connect
to the sewer system:
(1) The connection fee the property owner would have paid if the
property owner connected to the sewer system on the first date the
property owner could have connected to the sewer system.
(2) Any additional costs:
(A) considered necessary by; and
(B) supported by documentary evidence provided by;
the board.
(j) A property owner who connects to a district's sewer system may
provide, at the owner's expense, labor, equipment, materials, or any
combination of labor, equipment, and materials from any source to
accomplish the connection to the sewer system, subject to inspection
and approval by the board or a designee of the board.
(k) This section does not affect the authority of the Indiana
department of health, a local health department, or a county health
officer with respect to a sewage disposal system.
(l) For purposes of this section, a sewage disposal system is "failing"
if one (1) or more of the following apply:
(1) The system refuses to accept sewage at the rate of design
application and interferes with the normal use of plumbing
fixtures.
(2) Effluent discharge exceeds the absorptive capacity of the soil
into which the system discharges, resulting in ponding, seepage,
or other discharge of the effluent to the ground surface or to
surface waters.
(3) Effluent discharged from the system contaminates a potable
water supply, ground water, or surface waters.
(m) As used in this section, "qualified inspector" means any of the
following:
(1) An employee of a local health department who is designated
by the local health department as having sufficient knowledge of
onsite sewage systems to determine if an onsite sewage system is
failing.
(2) An individual who is certified by the Indiana Onsite
Wastewater Professionals Association as an onsite sewage system
installer or inspector.
(3) An individual listed by the Indiana department of health or a
local health department with jurisdiction over the service area of
the property inspected as having sufficient knowledge of onsite
sewage systems to determine if an onsite sewage system is failing.
(n) Subsections (e) through (i) do not apply to a property owner
whose property is incorporated into a district under this section or
section 14(b) of this chapter if:
(1) the district has received approval from the Indiana finance
authority before January 1, 2022, of a preliminary engineering
report:
(A) for a project to construct the sewer line to which the
property owner's property is being required to connect; and
(B) in connection with funding from the wastewater or drinking
water revolving loan program under IC 5-1.2-10; and
(2) the timing and requirements for connection to the district's
sewer system are the same for all property owners being required
to connect to the district's sewer system under the terms of the
project.
(o) Immediately after the adoption of a resolution under subsection
(a), and following the completion of any appeals under subsections (b)
and (c), the board shall do the following:
(1) Notify any impacted property owners of the sewer project
within three hundred (300) feet of the property line.
(2) Give notice by certified mail to the property owner at the
address of the property at least ninety (90) days before the date
specified for mandatory connection in the notice.
(3) Give notice by certified mail to the property owner at the
address of the property of the applicable exemptions from
connecting to the sewer system available to the property owner
that are described in subsection (e) at least ninety (90) days before
the date specified for connection in the notice.
[Pre-Local Government Recodification Citation: 19-2-14-7
part.]
As added by Acts 1981, P.L.309, SEC.98. Amended by Acts
1981, P.L.45, SEC.67; P.L.1-1998, SEC.216; P.L.127-2017, SEC.319;
P.L.167-2022, SEC.15; P.L.56-2023, SEC.338; P.L.232-2023,
SEC.16.