§ 36-9-25-18 — Findings; preparation of general plans in connection with project; declaratory resolutions; adoption; remonstrance; hearings and appeals

Indiana § 36-9-25-18

• Jurisdiction: Indiana
• Title 36: LOCAL GOVERNMENT
• Art. 9: TRANSPORTATION AND PUBLIC WORKS
• Ch. 25: Sanitation Department in Certain Cities

Text

(a) If upon investigation it is found by the
board of a municipality located on or near a watercourse that:
(1) the watercourse is being polluted by the discharge of sewage,
drainage, or other harmful matter from the sewage or drainage
systems of the municipality;
(2) a system of sewage disposal is necessary for the public health
and welfare; and
(3) the construction of a system for the disposal of the sewage and
drainage of the territory will be of public utility and benefit;
the board shall have prepared general plans for the entire project,
including a plat showing the general scope of it and the location and
bounds of all real property then considered necessary to be acquired or
removed, or that would be injuriously affected, in connection with the
project. It shall also have prepared separate descriptions of all real
property and of all personal property affected, and shall determine the
estimated cost of all the work, including the estimated damages to be
awarded to the owners of the real and personal property. The adoption
or filing of any specifications covering all or parts of the project and
details of other matters is optional with the board, and it may also
receive and file alternate plans and specifications, submitted by any
person for all or any part of the project. The board may, at the final
hearing, adopt all or any of these materials in place of the board's plans
and specifications.
(b) When general plans under subsection (a) have been prepared by
the board, it shall adopt a resolution declaring that, upon investigation,
it has been found:
(1) that the watercourse particularly described in the resolution is
being polluted by the discharge of sewage, drainage, or other
harmful matter accumulating within the boundaries of the district;
and
(2) that it is necessary for the public health and welfare and will
be of public utility and benefit to construct and maintain sewage
works to prevent the pollution of the watercourse, and, for that
purpose, to appropriate the property described.
The board shall adopt all general plans and estimates in the resolution,
which must be open to inspection by all persons interested in or
affected by the appropriation of property or the construction of the
work.
(c) Upon the adoption of the resolution, the board shall, in
accordance with IC 5-3-1, publish notice of:
(1) the adoption; and
(2) the fact that general plans and estimates have been prepared
and can be inspected.
The notice must name a date 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 utility and benefit of
the project. A similar notice shall be mailed to each owner of land to
be appropriated under the resolution. If a nonresident owner's residence
is unknown to the board, then the nonresident owner is considered to
have been notified of the pendency of the proceedings by the
publication of notice. All persons affected in any manner by the
proceeding, including all taxpayers in the district, are considered to be
notified of the pendency of the proceedings and of all subsequent acts,
hearings, adjournments, and orders of the board by the original notice
by publication.
(d) In the resolution and notice, separate descriptions of each piece
or parcel of land are not required, but it is a sufficient description of the
property purchased, to be purchased, or to be appropriated or damaged
to give a description of the entire tract by metes and bounds whether
the property is composed of one (1) or more lots or parcels and whether
it is owned by one (1) or more persons. If the land or a part of it is to be
acquired by purchase, the resolution must also state the maximum
proposed cost.
(e) The board may, at any time before the adoption of the resolution,
obtain from the owner or owners of the land an option for its purchase
or may enter into a contract for its purchase upon terms and conditions
that the board considers best. The option or contract is subject to the
final action of the board confirming, modifying, or rescinding the
resolution and to the condition that the land may be paid for only out
of the special fund resulting from the sale of sanitary district bonds as
provided in this chapter.
(f) The title to any land, rights-of-way, or other property acquired
under the resolution, whether by purchase or by appropriation, does not
vest in the municipality until it is paid for out of the special fund
created by the sale of bonds. Neither an indebtedness nor an obligation
of any kind is incurred by the municipality in its corporate capacity
because of the acquisition of land, rights-of-way, or other property. All
land, rights-of-way, or other property acquired shall be held by the
municipality in trust for sanitary purposes for the use and benefit of the
district and for the general public.
(g) At or before the time fixed for the hearing, an owner of land,
rights-of-way, or other property to be appropriated under the resolution
or injuriously affected, including any person owning real or personal
property located within the boundaries of the district, may file a written
remonstrance with the board. At the hearing, which may be adjourned
from time to time, the board shall hear all persons interested in the
proceedings and all remonstrances that have been filed. After
considering them, the board shall take final action determining the
public utility and benefit of the proposed proceedings and confirm,
modify and confirm, or rescind the resolution. The final action shall be
recorded, and is final and conclusive upon all persons. However, a
person who has remonstrated in writing as provided in this subsection
and who is aggrieved by the decision of the board, may, within ten (10)
days, take an appeal to the superior court of the county in which the
district is located.
(h) The remonstrator shall file in the office of the clerk of the court
a copy of the order of the board and the remonstrator's remonstrance,
together with the remonstrator's bond conditioned to pay the costs of
the appeal if the appeal is determined against the remonstrator. The
only ground of remonstrance that the court has jurisdiction to hear on
appeal is whether it will be of public utility and benefit to establish and
construct the proposed sewage works described in the resolution. The
burden of proof is on the remonstrator. The cause shall be summarily
tried by the court without a jury as other civil cases are tried. All of the
judges of the court shall sit in the trial. All remonstrances upon which
an appeal is taken shall be consolidated and heard as one (1) cause of
action by the court. The cause shall be heard and determined by the
court within thirty (30) days after the time of the filing of the appeal.
Upon the date fixed for hearing, the court shall hear evidence upon the
remonstrances and shall either confirm the final action of the board or
sustain the remonstrance. The judgment of the court is final and
conclusive upon all persons, and an appeal may not be taken from the
judgment of the court.
[Pre-Local Government Recodification Citations:
subsections (a), (b), (c), (d), (e), (f), (g) formerly 19-2-20-7;
subsection (h) formerly 19-2-14-10.]
As added by Acts 1981, P.L.309, SEC.98. Amended by Acts
1981, P.L.45, SEC.68; P.L.38-1984, SEC.4; P.L.17-1985, SEC.26;
P.L.127-2017, SEC.321.