CHAPTER 4. PARKS DEPARTMENT IN CERTAIN CITIES
IC 36-10-4
Chapter 4. Parks Department in Certain Cities
IC 36-10-4-1
Application of chapter
Sec. 1. (a) This chapter applies to each second class city in which
the legislative body has adopted all or part of this chapter by
ordinance.
(b) This chapter applies to each third class city in which the
legislative body has adopted all or part of this chapter by ordinance.
(c) In addition, in a consolidated city sections 9(a) and 12 through
40 of this chapter apply to the department of parks and recreation and
the board of parks and recreation, subject to IC 36-3-4-23.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.320, SEC.10; Acts 1982, P.L.33, SEC.48.
IC 36-10-4-2
Definitions
Sec. 2. As used in this chapter:
"Board" refers to a board of park commissioners, or board of
parks and recreation of a consolidated city.
"Department" refers to a department of public parks, or
department of parks and recreation of a consolidated city.
"District" means the area within the jurisdiction of a department.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-3
Department of public parks; establishment; membership;
compensation; oath
Sec. 3. (a) A department of public parks is established as an
executive department of the city.
(b) The department is under the control of a board of park
commissioners. The board consists of four (4) commissioners
appointed by the city executive. Each commissioner must be a
freeholder residing in the city, and no more than two (2)
commissioners may have the same political affiliation.
(c) A second class city may pay each commissioner an annual
salary in an amount fixed by the fiscal body. The commissioners
shall be paid their actual expenses upon approval by the city
executive.
(d) Before beginning his duties each commissioner shall take and
subscribe the usual oath of office. The oath shall be indorsed upon
the certificate of appointment and filed with the city clerk. If a
commissioner has not filed his oath:
(1) within thirty (30) days after the beginning of his term; or
(2) by the date of his appointment if he was appointed after the
beginning of the term;
he is considered to have refused to serve and the office becomes
vacant.
As added by Acts 1981, P.L.309, SEC.111. Amended by
P.L.176-2002, SEC.10.
IC 36-10-4-4
Commissioner; appointment; removal
Sec. 4. (a) By February 1 each year, the executive shall appoint a
commissioner to fill the vacancy caused by the expiration of a term.
Each commissioner appointed holds office for a term of four (4)
years, beginning with January 1 in the year of appointment. If a
vacancy occurs on the board, the executive shall appoint a
commissioner for the remainder of the term.
(b) A commissioner may not be removed from office except upon
charges preferred in writing before the executive, with a hearing held
on them. If the executive is bringing the charges, the fiscal body shall
appoint a hearing officer. The only permissible reasons for removal
are as follows:
(1) Inefficiency.
(2) Neglect of duty.
(3) Malfeasance in office.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.320, SEC.11.
IC 36-10-4-5
Second class city; resolution to extend boundaries; remonstrance;
referendum; election; effective date of extension; operation of
parks
Sec. 5. (a) In a second class city, the board may adopt a resolution
to extend the boundaries of the district to the county boundaries
unless the county has already established a park district under
IC 36-10-3. The board must file a certified copy of the resolution
with the county auditor and county treasurer. Notice of the adoption
of the resolution shall be given by publication once each week for
two (2) weeks in accordance with IC 5-3-1.
(b) Whenever the board has adopted a resolution under subsection
(a), remonstrances may be filed by the affected voters within ninety
(90) days after the last publication under subsection (a).
Remonstrances must be signed in ink by the voter in person and state
the address of each signer and that the signer is a registered voter. A
person who signs a remonstrance when he is not a registered voter
commits a Class D felony. More than one (1) voter may sign the
same remonstrance.
(c) A vote on the public question shall be held if at least the
number of the registered voters of the county required under
IC 3-8-6-3 to place a candidate on the ballot file remonstrances under
subsection (b) with the county clerk protesting the extension of the
district.
(d) The county clerk shall certify to the county election board in
accordance with IC 3-10-9-3 whether or not the required number of
registered voters of the county have filed remonstrances. If sufficient
remonstrances have been filed, the county election board shall
publish a notice of the election once a week for two (2) consecutive
weeks in accordance with IC 5-3-1-4, the first publication to be at
least thirty (30) days before the date of the election. The question
presented to the voters at the election shall be placed on the ballot in
the form prescribed by IC 3-10-9-4 and must state "Shall the county
park district be established?".
The election is governed by IC 3 whenever not in conflict with this
chapter. The county election board shall make a return of the votes
cast at the referendum.
(e) If a majority of the votes cast are against the extension of the
district, the district is not extended. If sufficient remonstrances are
not filed or if a majority of the votes cast support the extension of the
district, the district is extended.
(f) The extension of the district is effective on January 1 of the
year following the adoption of the resolution or, if an election is
held, on January 1 of the year following the date of the election.
(g) A municipality that becomes part of a district by reason of the
extension of the district under this section may continue to establish,
maintain, and operate parks and other recreational facilities under
any other law. The parks and other recreational facilities shall be
operated by the municipality separate from the parks and other
recreational facilities under the jurisdiction of the board in the same
manner as they would be operated by the municipality if it was not
within the district.
(h) The operation of separate parks or recreational facilities by a
municipality does not affect the obligation of property owners within
the municipality to pay all taxes imposed on property within the
district.
(i) The legislative body of a municipality may elect that the
separate parks or other recreational facilities of the municipality be
maintained or operated as a part of the district by adopting a
resolution or an ordinance to that effect. The separate park or other
recreational facility comes under the jurisdiction of the board at the
time specified in the resolution or ordinance.
As added by Acts 1981, P.L.309, SEC.111. Amended by
P.L.358-1987, SEC.3; P.L.3-1987, SEC.569; P.L.12-1995, SEC.133.
IC 36-10-4-6
Extended districts in certain counties; board of park
commissioners; term; vacancy
Sec. 6. (a) This section applies whenever a district is extended
under section 5 of this chapter and such district is not located in a
county having a population of more than one hundred seventy
thousand (170,000) but less than one hundred eighty thousand
(180,000).
(b) After the district is extended under section 5 of this chapter,
the board consists of five (5) commissioners. Two (2) commissioners
shall be appointed by the city executive, two (2) commissioners shall
be appointed by the county executive of the county in which the city
is located, and one (1) commissioner shall be appointed by a majority
vote of the presidents of the school boards of the school corporations
in the county in which the city is located. The commissioners
appointed by the county executive must be residents of the area of
the district outside the corporate boundaries of the city. The
commissioners appointed by the county executive may not be
members of the same political party, and the commissioners
appointed by the city executive may not be of the same political
party.
(c) A commissioner of an extended district may hold office for an
unlimited number of terms.
(d) After the initial terms have expired, all of the commissioners
after the extension of the district shall be appointed for terms of four
(4) years, beginning on January 1. The terms of office of the three (3)
commissioners in office at the time of the extension terminate
January 1, and the terms of office of the new commissioners begin
January 1. The city executive shall appoint one (1) commissioner for
an initial term of two (2) years and one (1) for an initial term of four
(4) years. The county executive shall appoint two (2) commissioners,
one (1) commissioner for an initial term of two (2) years and the
other commissioner for an initial term of four (4) years. The
presidents of the school boards shall appoint one (1) commissioner
for an initial term of four (4) years.
(e) A vacancy in the office of a commissioner shall be filled for
the remainder of the term by the appointing authority.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.320, SEC.12; P.L.358-1987, SEC.4; P.L.12-1992, SEC.191;
P.L.170-2002, SEC.172.
IC 36-10-4-6.1
Extended districts in other counties; board of park commissioners;
term; vacancy
Sec. 6.1. (a) This section applies whenever a district is extended
under section 5 of this chapter and such district is located in a county
having a population of more than one hundred seventy thousand
(170,000) but less than one hundred eighty thousand (180,000).
(b) After the district is extended under section 5 of this chapter,
the board consists of five (5) commissioners. Three (3)
commissioners shall be appointed by the city executive, and two (2)
commissioners shall be appointed by the county executive of the
county in which the city is located. The commissioners appointed by
the county executive must be residents of the areas of the district
outside the corporate boundaries of the city. No more than two (2) of
the three (3) commissioners appointed by the city executive may be
members of the same political party, and the commissioners
appointed by the county executive may not be of the same political
party.
(c) A commissioner of an extended district may hold office for an
unlimited number of terms.
(d) All commissioners after the extension of the district shall be
appointed for terms of four (4) years, beginning on January 1. The
three (3) commissioners whose terms of office have not expired
continue in office and are considered appointees of the city executive
until the expiration of the four (4) year terms for which they each
were originally appointed. The county executive shall appoint two
(2) commissioners, one for a term of two (2) years and the other for
a term of four (4) years. As the term of each commissioner expires,
a new commissioner shall be appointed for a term of four (4) years
so that at all times the board consists of three (3) commissioners
appointed by the city executive and two (2) commissioners appointed
by the county executive.
(e) A vacancy in the office of a commissioner shall be filled for
the remainder of the term by the appointing authority.
As added by P.L.358-1987, SEC.5. Amended by P.L.12-1992,
SEC.192; P.L.170-2002, SEC.173.
IC 36-10-4-7
Board of park commissioners; election of officers; quorum; regular
meetings; office; report; disposition of money received
Sec. 7. (a) The board shall elect at its first regular meeting in
February each year one (1) of the commissioners president and
another vice president. The vice president shall perform the duties of
the president during the absence or disability of the president.
(b) A majority of the commissioners constitutes a quorum. Action
of the board is not binding unless authorized by a majority of the
commissioners at a regular or duly called special meeting of the
board. If there is a tie vote on any question, the city executive shall
cast the deciding vote.
(c) The board shall fix a time for holding regular meetings.
Special meetings of the board may be called at any time by its
president, or by any two (2) of the commissioners, upon a written
request to the secretary. If a special meeting is called, the secretary
shall notify the commissioners by mailing written notices of the time
of the meeting at least one (1) day before the meeting. All meetings
are open to the public.
(d) The proper authorities of the city shall provide a suitable
office for the board where its maps, plans, documents, records, and
accounts shall be kept, subject to public inspection at all reasonable
times.
(e) By February 1 of each year the board shall make a report to the
city executive of:
(1) its proceedings, including a full statement of its receipts and
disbursements for the preceding calendar year;
(2) the acquisition of lands by the board;
(3) improvements made by the board; and
(4) general character of the work of the board during the
preceding year.
(f) Money received by the board shall immediately be paid into
the city treasury and credited to the department. All expenditures
relating to the parks, parkways, public grounds, public ways, and
other places of the city under the control of the department shall be
provided for by a special levy of taxes. The money shall be paid from
the city treasury when ordered by the board.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-8
Taxing district for levying special benefit taxes
Sec. 8. All of the area:
(1) within the corporate boundaries of a city; and
(2) in unincorporated areas of the county to which the district
has been extended;
constitutes a taxing district for levying special benefit taxes for park
purposes as provided in this chapter. Area added to the district under
section 5 of this chapter is considered to have received a special
benefit from the park facilities of the district equal to or greater than
the special taxes imposed on the area by this chapter in order to pay
all or a part of the cost of the facilities.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-9
Control of property within district; public ways passing through
park property; powers of board
Sec. 9. (a) The board has, subject to statute and to the right given
by section 5 of this chapter to other municipalities within the district
to operate separate parks and recreational facilities, exclusive control
of all property within the district used for park purposes.
(b) In addition, the part of all public ways that pass through park
property is considered to be a part of this property and is also under
the control of the board.
(c) The board may do the following:
(1) Acquire, lay out, and improve land for park purposes in the
district and may equip, operate, maintain, and regulate the
public use of that property.
(2) Appoint a secretary, and, in his absence a secretary pro
tempore, landscape architects, engineers, surveyors, attorneys,
clerks, guards, laborers, playground directors, and other
employees, prescribe their duties and authority, and fix their
compensation. If a superintendent of the department is
appointed, he shall be appointed under IC 36-4-9-2.
(3) Make rules not in conflict with statutes or the ordinances of
the city for the management of the property under its control.
(4) Require the department of public safety of the city to detail
police officers to execute the orders and enforce the rules made
by the board and to be subject to the board, with the city
executive deciding any disagreement between the two (2)
departments as to the number and duration of the details of
police officers.
(5) Locate, erect, and maintain fountains in parks, as well as in
the public ways that form the boundaries of parks, or intersect
with them.
(6) Erect and maintain suitable fences around parks.
(7) Seize and impound animals found running at large in any of
the parks, including establishing suitable places for the
impounding.
(8) Lease or sell any buildings, grounds, materials, equipment,
or any parts of them owned by the city that are under the control
of the department and that the board determines are not required
for park purposes, permitting any other department of the city
or the school city to occupy or use the property upon terms that
are approved by the executive. All sums realized from the lease,
sale, or other disposition of property shall be deposited in the
city treasury to the credit of the department and expended for
park purposes. All buildings and structures erected upon land
under the control of the board are under the control of the
board, and the board may not permit the erection of any
building or structure upon land unless it becomes the property
of the city. A lease or sale of minerals, mineral rights, or
royalties for minerals for more than one (1) year from land
owned by a second class city or a lease for more than one (1)
year in a city that adopted this chapter by ordinance under
IC 19-7-9 (before its repeal on September 1, 1981) may be
made only to the highest and best bidder after notice of the sale
or lease has been given by publication in accordance with
IC 5-3-1.
(d) The board may also do the following:
(1) Vacate public ways, or parts of them, on land under the
control of the board in the same manner as the city works board
may vacate them.
(2) Take over and control public ways, or parts of them, within
the city and convert them into boulevards or pleasure driveways
if they connect with or run into or through a park, parkway, or
boulevard or are necessary for the establishment of a park or
boulevard system in the city, including grading, improving, and
beautifying them and relinquishing to other departments of the
city the control of a public way or parkway in streets taken over
that are not necessary or desirable for maintenance as part of
the park system of the city.
(3) Petition the proper board of the city to construct any
necessary drainage or sanitary sewers and connections in a
public way or parkway bordering park property and require a
public service corporation to lay, install, and connect water and
gas mains and electric light conduits in and along a boulevard
or park drive when reasonably necessary.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.45, SEC.97; Acts 1981, P.L.320, SEC.13; P.L.3-1990, SEC.139.
IC 36-10-4-10
Powers of board extended five miles outside corporate city
boundaries
Sec. 10. In a city that adopted this chapter by ordinance under
IC 19-7-9 (before its repeal on September 1, 1981), the powers
granted the board by section 9(a) extend five (5) miles outside the
corporate boundaries of the city.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.320, SEC.14; P.L.3-1990, SEC.140.
IC 36-10-4-11
Shade trees and lawns along public ways; resolution assessing cost;
hearing; assessments; playgrounds; public school grounds or
buildings
Sec. 11. (a) The board has exclusive control over the planting,
trimming, and maintenance of shade trees along the public ways of
the city. The board may:
(1) take over and control the improvement, maintenance, and
embellishment of all lawns and street centers in and along the
public ways of the city; or
(2) compel the owners of lots and parcels of land bordering on
the public ways to plant, trim, protect, and maintain shade trees
and to sod, plant, and maintain lawns and centers after first
adopting a resolution showing the public necessity and
assessing the cost against the abutting lots and parcels of land.
(b) After adopting a resolution under subsection (a), the board
shall give notice and provide a hearing, with right of remonstrance,
in the same manner as is provided for street and sidewalk
improvements by the works board of the city. However, instead of
letting a contract to the highest and best bidder, the board may carry
out the improvement with its own employees and charge the actual
cost in the same manner as if a contract was let. The cost may
include a reasonable guaranty, but may not, however, exceed the
estimate to be made and placed on file at the time of the adoption of
the resolution.
(c) All assessments levied for the improvements are payable in
one (1) payment, without notice, at the next regular taxpaying time
after the completion of the improvement. The assessments are liens
against the separate lots and parcels of land abutting the
improvement. If they are not paid when due, they may be enforced
by foreclosure, after giving notice, in the same manner as
assessments for street and sidewalk improvements.
(d) The board has exclusive control over the establishment and
maintenance of public playgrounds, public playfields, public
swimming pools, public baths, community centers, and recreation
centers in the city. The board shall select directors, assistants, and
employees to manage and control the facilities and shall prescribe
their duties and fix their compensation. The board may expend the
sums from the general park fund for recreation purposes that it
considers advantageous to the city.
(e) The governing body of the school corporation of the city may
permit the use of public school grounds or buildings under its control
that are required or adaptable for recreation purposes when that use
will not interfere with use for school purposes.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-12
Open spaces for park, recreational, or civic purposes
Sec. 12. The board may develop open spaces for park,
recreational, or civic purposes in cities where areas have become
blighted or require redevelopment for the public welfare in
cooperation with the redevelopment commission and the plan
commission for the city, providing out of park funds, by bond issue,
from other available funds, or by the receipt of grants or donations
for such purposes the money necessary for the redevelopment
commission to acquire the areas for the department and paying the
money to the redevelopment commission for the project.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-13
Law governing adoption of plans, giving of notice, and receiving of
bids in letting of contract
Sec. 13. The board is subject to IC 36-1-12 governing similar
action by the works board when adopting plans, giving notice, and
receiving bids in the letting of a contract for public improvements or
repairs.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.57, SEC.43.
IC 36-10-4-14
Actions to recover damages for breach of agreement, penalties for
violation of ordinance, damages for injury to property, and
possession of property
Sec. 14. The board may bring an action in the name of the city to
recover:
(1) damages for the breach of an agreement, expressed or
implied, relating to or growing out of the establishment,
management, or improvement of the parks, public ways, and
other property used for park purposes under its control;
(2) penalties for the violation of an ordinance;
(3) damages for injury to the personal or real property relating
to the parks, public ways, and other property used for park
purposes; or
(4) possession of property.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-15
Publication of rules adopted by board
Sec. 15. All rules that the board adopts under this chapter shall be
published in accordance with IC 5-3-1.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.45, SEC.98.
IC 36-10-4-16
Taxes; disbursements; borrowing; general park fund; special
funds; fees; deposits; withdrawals
Sec. 16. (a) A tax on the taxable property in the district, as it
appears on the tax duplicate, shall be levied annually by the city
legislative body for park purposes.
(b) The tax shall be collected the same as other city taxes are
collected, and the city fiscal officer shall, between the first and fifth
days of each month, notify the board of the amount of taxes collected
for park purposes during the preceding month. At the date of
notification, the city fiscal officer shall credit the park fund with the
amount.
(c) The board may expend on behalf of the city all sums of money
collected from:
(1) taxes;
(2) the sale of privileges in the parks of the city;
(3) the sale of bonds of the city for park purposes; and
(4) any other source.
All gifts, donations, or payments that are given or paid to the city for
park purposes belong to the general park fund, the special
nonreverting operating fund, or the special nonreverting capital fund
to be used by the board as provided by this chapter. Warrants for
expenditures shall be drawn by the city fiscal officer upon a voucher
of the board signed by the president or vice president and secretary.
(d) The city legislative body may borrow money for the use of the
department and may issue the bonds of the city to pay back the
borrowed money in the manner provided by statute for the issue of
bonds for the general purposes of the city. However, the board may
not contract debts beyond the amount of its annual income and the
amount available from the sale of bonds or other sources.
(e) All money remaining in the treasury to the credit of the board
at the end of the calendar year belongs to the general park fund, the
special nonreverting operating fund, or the special nonreverting
capital fund for use by the board for park purposes.
(f) Park and recreation facilities and programs shall be made
available to the public free of charge as far as possible. However, if
it is necessary in order to provide a particular activity, the board may
charge a reasonable fee.
(g) The city legislative body may establish by ordinance upon
request of the board:
(1) a special nonreverting operating fund for park purposes
from which expenditures may be made as provided by
ordinance, either by appropriation by the board or by the city
legislative body; or
(2) a special nonreverting capital fund for the purpose of
acquiring land or making specific capital improvements from
which expenditures may be made by appropriation by the city
legislative body.
The city legislative body shall designate the fund or funds into which
the city fiscal officer shall deposit fees from golf courses, swimming
pools, skating rinks, or other major facilities requiring major
expenditures for management and maintenance. Money received
from fees other than from major facilities or received from the sale
of surplus property shall be deposited by the city fiscal officer either
in the special nonreverting operating fund or in the nonreverting
capital fund, as directed by the board. However, if neither fund has
been established, money received from fees or from the sale of
surplus property shall be deposited in the general park fund. Money
from either special fund may be disbursed only on approved claims
allowed and signed by the president and secretary of the board.
(h) Money placed in the special nonreverting capital fund may not
be withdrawn except for the purposes for which the fund was
created, unless the fiscal body repeals the ordinance establishing the
fund. The fiscal body may not repeal the ordinance under suspension
of the rules.
(i) Money procured from fees or received from the sale of surplus
property shall be deposited at least once each month with the city
fiscal officer.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.320, SEC.15; P.L.372-1983, SEC.2; P.L.173-2003, SEC.40.
IC 36-10-4-17
Granting of public utility franchise
Sec. 17. A franchise may not be granted by the city for the
construction or maintenance of railways or telephone, telegraph,
pipe, or conduit lines upon, across, over, or through a park, parkway,
park boulevard, boulevard, or driveway under the control of the
board without the consent of the board.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-18
Ordinance authorizing sale of park lands; disposition of proceeds
Sec. 18. If a board decides to sell a part of the park lands owned
by the city, it shall prepare an ordinance authorizing the sale and
submit it to the city legislative body. If the legislative body passes
the ordinance, the land shall be sold as other land of the city is sold
and the proceeds of the sale credited to the department. The proceeds
shall be expended for the improvement of the remaining park land or
for the purchase of other land for park purposes, as the board
considers best for the city.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-19
Building lines; establishment by resolution; nature of rights in land
between building line and park property; procedure; regulation of
use of property; conflict of interest
Sec. 19. (a) The board may, by resolution, establish a building line
determining the distance at which all structures erected upon any
premises fronting a park, parkway, or boulevard may be erected.
Upon the adoption of the resolution, the board shall acquire, in the
name of the city, by donation, condemnation, or purchase, the land
between the building line and the park, parkway, or boulevard, or an
interest in the land that will secure to the board the right to prevent
the erection of or to require the removal of all structures outside of
the line, or both. After the adoption of the resolution, a permit may
not be issued by a department or officer of the city authorizing the
erection of a structure outside of the established line unless approved
by the board.
(b) The establishment of a building line outside of a park,
parkway, or boulevard in connection with the donation,
condemnation, or purchase of land or an interest in it is a perpetual
annihilation of all rights of the owners of property over and across
which the building line runs to erect a structure or a part of one
between the building line and the park, parkway, or boulevard.
However, the perpetual and irrevocable free license to use and
occupy the land between a building line and the park property is
reserved to the property owner for purposes other than the erection
of structures.
(c) If the board decides to establish a building line, the board has
the same powers and shall proceed in the same manner in the
condemnation, assessment, and collection of benefits, awards of
damages, remonstrances, hearings, appeals, rehearings, and other
matters as it does in the acquisition of real property. Benefits may
not be assessed against property other than that abutting on the park,
parkway, or boulevard along which the building line is established
and within the limits of the building line. However, the total amount
of benefits assessed against lots and parcels of land fronting on the
park, parkway, or boulevard and located within the limits of the
building line must equal the total cost of the establishment of the
building line.
(d) A subdivision of lots or parcels of land lying within five
hundred (500) feet of park, parkway, or boulevard may not be
accepted for record and is not valid without the approval of the
board. If the board considers it necessary, in order to promote public
health, safety, morals, or general welfare, the board may, by general
order or resolution, regulate:
(1) horse racing; and
(2) the location of trades, industries, commercial enterprises,
buildings, or devices designed for uses that, in the order or
resolution, are specified as injurious to the public health, safety,
morals, or general welfare;
within five hundred (500) feet of a park, parkway, or boulevard. The
right to regulate the use of this property for these purposes is
considered to be included in a gift, donation, acquisition, or
condemnation under this chapter. However, a lawful business being
conducted upon adjacent property when jurisdiction is acquired over
the property may not be prohibited or abated without a fair valuation
and due compensation.
(e) Commissioners, and clerks, assistants, appointees, or
employees of the board may not hold an interest, either directly or
indirectly, in any kind of enterprise conducted for profit within one
thousand (1,000) feet of a park, parkway, or boulevard under the
jurisdiction of the board. The possession or ownership of an interest
operates to vacate the officer or position held by the person and
makes him ineligible to hold an office or position under the board
while the interest is, either directly or indirectly, possessed or
retained by him.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-20
Acquisition of property for various purposes; holding property in
trust; establishment of museums; contracts for management and
maintenance of facilities
Sec. 20. (a) Real and personal property may be granted, devised,
leased, bequeathed, or conveyed to a city for park purposes or for the
establishment, improvement, maintenance, or ornamentation of a
park, playground, boulevard, pleasureway, parkway, wheelway,
garden for horticulture and floriculture, museum, zoological garden,
collection of natural history, observatory, library, fountain,
monument, work of art, art gallery, or other public ground.
(b) The city may take and hold the property in trust or upon
conditions that are approved by the board. The property and the
rents, issues, and profits from it are subject to the exclusive control
of the board.
(c) The board shall also provide accommodations and take the
steps that the money at its disposal will justify for securing and
preserving collections of natural history and the establishment of
museums in the parks of the city.
(d) The property may be improved, added to, and changed at the
board's discretion and shall be protected, preserved, and arranged by
the board for the public use and enjoyment under the rules that the
board prescribes.
(e) The public may use and enjoy the facilities, although the board
may impose an admission charge for entrance into the gardens,
museums, and other collections.
(f) The board may also contract for the management and
maintenance of gardens, museums, art galleries, or other institutions
with a society incorporated under statute, as long as the public has
the right to use and enjoy the facilities. The board may also impose
an admission charge for entrance into these facilities, which remain
subject to the control of the board.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-21
Eminent domain; damages; prior public use
Sec. 21. (a) The board may exercise the power of eminent domain:
(1) within the corporate boundaries of the city; and
(2) outside of the city within ten (10) miles, or five (5) miles if
the city adopted this chapter by ordinance under IC 19-7-9
(before its repeal on September 1, 1981), of the corporate
boundaries of the city and within the county in which the city
is located;
for the purposes of this chapter. The board may award damages to
landowners for real property and property rights appropriated or
injuriously affected and assess benefits to property beneficially
affected. If the board cannot agree with the owners, lessees, or
occupants of any real property selected by the board for the purposes
of this chapter, the board may condemn the property as provided in
this chapter, and, when not inconsistent with this chapter, may
proceed under statutes governing the condemnation of land and
rights-of-way for other public purposes.
(b) If the land or surface of the ground on, over, or across which
it is necessary or advisable to establish, construct, or improve a
boulevard, parkway, or pleasure driveway is already in use for
another public purpose or has been condemned or appropriated for
a use authorized by statute and is being used for that purpose by the
entity appropriating it, the public use or prior condemnation does not
bar the board from condemning the use of the ground for park
purposes. However, the use by the board does not permanently
prevent the use of the land or the surface of the ground for the prior
public use or by the entity condemning or appropriating it. In a
proceeding prosecuted by the board to condemn the use of land or
the surface of the ground for purposes permitted by this chapter, the
board must show that its proposed use will not permanently or
seriously interfere with the continued use of the land or the surface
of the ground.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.320, SEC.16; P.L.3-1990, SEC.141.
IC 36-10-4-22
Authority concerning rivers, streams, and waterways
Sec. 22. (a) This section applies only to the parts of rivers,
streams, and waterways that are within or bordering park land and
boulevards under the control of the board.
(b) The board may:
(1) keep open rivers, streams, and waterways and prevent the
deposit of unsightly or obnoxious materials in or along them;
(2) take over, improve, control, and provide for the protection
of the banks of rivers, streams, and waterways, including
building levees and taking over levees already built;
(3) control the flow of water;
(4) make rules and regulations concerning rivers, streams, and
waterways and their banks as is necessary for these purposes;
(5) dam or change the course of a river, stream, or waterway to
provide water for sprinkling, boating, or other purposes;
(6) provide pools or artificial lakes in parks; and
(7) construct bridges and viaducts over or tunnels under rivers,
watercourses, or railroads.
(c) The board may also require the owners of real property
abutting along and upon rivers, streams, and waterways to remove
unsightly or obnoxious materials, filth, and unhealthy and unsanitary
substances in or along them. Five (5) days' written notice shall be
given to the owners that states the materials, filth, or substances to be
removed. If a property owner fails to comply with the notice the
board may remove the materials, filth, or substances. The expense of
removal shall be certified by the board to the county treasurer and
shall be collected by the treasurer in the same manner as assessments
by the board for the improvement of boulevards are collected under
this chapter and other statutes, including the sale of the property by
the treasurer to pay delinquent expenses.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-23
Improvement of parkway, pleasure driveway, or boulevard;
orders; assessment of costs; remonstrance; changing and fixing
grade
Sec. 23. (a) The board may, in a proceeding separate from the
acquisition of land by purchase or appropriation, order the
improvement of a parkway, pleasure driveway, or boulevard, or part
of any of these, under the control of the board by surface grading,
paving, curbing, or constructing sidewalks in the same manner as the
works board of the city may improve a public way or sidewalk within
the city. The powers, rights, and duties of the board in carrying out
this work are the same as the powers, rights, and duties of the works
board in the performance of similar work under general procedures.
In addition, the board may determine the kind of pavement to be
used. The powers, rights, and duties of the persons to be assessed are
the same as those provided under general procedures for doing
similar work by the works board, with the cost of improvements
assessed to the same extent as property is assessed.
(b) When costs are assessed, they become a lien upon the property
to the same extent, are enforceable in the same manner, and have the
same rights to payment by installments and appeal as are provided
for street and sidewalk improvements ordered by the works board.
(c) If a majority of the resident freeholders affected by the
proposed improvement remonstrate in writing against the
improvement, the board may, after giving ten (10) days' notice to the
remonstrators, petition the circuit court to specifically order the
improvement. If at the hearing on the petition the board establishes
the public necessity of the proposed improvement and demonstrates
that the benefits will equal the assessments against the separate lots
or parcels of land, the order shall be made.
(d) If land along one (1) side of a parkway, pleasure driveway, or
boulevard is owned by the city or used by it for park purposes,
one-half (1/2) of the cost of the improvements under this section, as
well as any part of the other one-half (1/2) of the cost of the
improvements that cannot be met by special assessments against
abutting property, is considered to be benefits accruing to all of the
property, real and personal, not exempt from taxation under this
chapter and located within the boundaries of the district. The cost
shall be paid out of the proceeds of the bonds of the taxing district
that are issued and sold for those purposes. Payment shall be made
as provided in sections 35 and 37 of this chapter.
(e) The board may provide for the rough grading of a parkway,
pleasure driveway, or boulevard at the same time as the acquisition
of the property or after the property, or a necessary part of it, has
already been secured under section 21 of this chapter.
(f) The board may change and fix the grade of a boulevard, park
boulevard, public driveway, or public ground under its control to the
same extent as the works board of the city may change and fix the
grade of a public way or public place within the city.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-24
Appropriation of property; purposes
Sec. 24. The board may appropriate property for:
(1) establishing a park, parkway, pleasure driveway, or
boulevard;
(2) widening or extending a park, parkway, pleasure driveway,
or boulevard;
(3) opening, widening, or extending a route or right-of-way for
a sewer or channel of a watercourse connected with or
necessary for the protection of a park, parkway, pleasure
driveway, or boulevard;
(4) constructing an embankment or levee along a watercourse
for the protection of a park, parkway, pleasure driveway, or
boulevard;
(5) constructing a bridge or viaduct upon or connected with a
park, parkway, pleasure driveway, or boulevard; or
(6) converting a public way connecting a park, parkway, or
boulevard in the city into a boulevard or pleasure driveway.
The board may also, in the same proceeding, provide for the
construction of improvements to the property for the purposes for
which the property is appropriated. In addition, the board may
provide for the construction of any of the improvements when the
property or a part of it has been secured by contract or other means.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-25
Resolution to acquire property; adoption; contents; notice of
adoption; appraisal; title; hearing; remonstrance, final action
Sec. 25. (a) This section applies only to:
(1) the acquisition of real property; or
(2) a work of improvement;
that will be financed by the issuance of bonds.
(b) If a board decides to:
(1) acquire land for any of the purposes of this chapter, either
by purchase or appropriation, and to proceed with an
improvement authorized by this chapter, other than surface
grading and paving under section 23 of this chapter; or
(2) acquire property without proceeding at that time with an
improvement; or
(3) proceed with an improvement when the property has been
already secured by purchase or otherwise;
it shall adopt a resolution under subsection (c).
(c) The resolution must:
(1) declare the purpose;
(2) describe the land to be acquired, the manner of acquisition,
and, in case of appropriation, other land that may be injuriously
affected; or describe the land already acquired and intended to
be used for the proposed improvement; and
(3) if the improvement is provided for in the resolution, require
that preliminary plans and specifications and an estimate of the
cost of the proposed improvement be prepared by the engineer
selected to do the work.
The resolution must be open to inspection by all persons interested
in or affected by the appropriation of the land or the construction of
the work.
(d) Upon the adoption of the resolution, the board shall have
notice of the adoption and content of it published in accordance with
IC 5-3-1. 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 determine the public utility and benefit of the
proposed project.
(e) Notice shall be sent by certified mail to each owner of land to
be appropriated under the resolution, using the owner's address as
shown on the tax duplicates. In addition, notice of the land to be
appropriated shall be published in accordance with IC 5-3-1. All
persons affected in any manner by the proceedings, 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.
(f) 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. It does not matter if the property is composed of one (1) or
more lots or parcels or owned by one (1) or more persons.
(g) If the land or a part of it is to be acquired by purchase, the
resolution must also state the maximum proposed cost. The board
may, at any time before the adoption of the resolution:
(1) obtain from the owner or owners of the land an option for its
purchase; or
(2) enter into a contract for its purchase upon the 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 shall be paid for only out of the special fund
resulting from the sale of district bonds and from local assessments,
as provided in this chapter.
(h) If the board decides to acquire any lots or parcels of land by
purchase, the board shall appoint three (3) qualified appraisers to
appraise the land. The appraisers may not be interested, directly or
indirectly, in any land to be acquired under the resolution or that may
be injured or incur local benefits. The appraisers shall take an oath
that they have no interest in the matter and that they will honestly
and impartially make the valuation. They shall then immediately
view the land and determine the true market value of it at that time.
They shall report the appraisal in writing, which shall be filed with
and becomes a part of the record of the proceeding. The board may
not take an option on the land or enter into a contract to purchase it
at a higher price than the value named in the report.
(i) The title to any land to be acquired under the resolution,
whether by purchase or appropriation, does not vest in the city until
it is paid for out of the special fund created by the sale of bonds and
from local assessments of special benefits as provided in this chapter.
Any indebtedness or obligation incurred by the board due to the
acquisition of land or to construction of a work shall be paid out of
the funds under the control of the board and is not an indebtedness
or obligation of the city.
(j) At or before the time fixed for the hearing, an owner of land to
be appropriated or injuriously affected under the resolution, or a
person owning real or personal property located within the corporate
boundaries of the city, may file a written remonstrance with the
secretary of 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 this evidence, the board shall take final action
determining the public utility and benefit of the proposed project by
either confirming, modifying, or rescinding the resolution. The action
shall be recorded and is final and conclusive upon all persons.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.320, SEC.17.
IC 36-10-4-26
Letting of contract for construction; bidder's deposit; payment;
limitation of cost; validity of contract
Sec. 26. (a) If the board orders acquisition and construction and
has advertised for bids for the construction after final adoption of the
resolution, it shall require each bidder to deposit with his bid a
certified check for an amount not less than two and one-half percent
(2 1/2%) of the engineer's estimate of the cost of the improvement to
insure the execution of the contract for which the bid is made.
(b) The contract must state that payments for all work under the
contract shall be made only from the special fund derived from the
proceeds of bonds and special assessments. A contract may not be let
for a higher amount than the estimated cost of the work, and the
board may let parts of the proposed work under different contracts.
The board may, at any time before the execution of a contract for the
work, rescind any acts or orders in relation to the proposed work or
take the supplementary proceedings that the board considers
necessary.
(c) The validity of a contract may not be subsequently questioned
by any person except in an action to enjoin the performance of the
contract instituted within fifteen (15) days after the execution of the
contract. After that fifteen (15) day period, all proceedings and
orders of the board preliminary to the contract are valid, conclusive,
and binding upon all persons and are not subject to attack. The
amount of the benefits resulting to all property in the city and the
special tax shall be levied only for the balance.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-27
Properties subject to special tax; lands subject to special
assessment for benefits; determination of benefits to all property
in city
Sec. 27. (a) After final action of the board confirming the
resolution in its original form, all property located within the
corporate boundaries of the city is subject to a special tax to provide
money to pay the total cost of acquiring land, of an improvement, or
of both, including all necessary incidental expenses. The special tax
constitutes the amount of benefits resulting to the property from the
proceedings and shall be levied as provided in this chapter.
(b) If the board determines that any lots or parcels of land,
exclusive of improvements, lying within two thousand (2,000) feet
of either side of property to be acquired for a work of construction
will incur a particular benefit because of proximity to the property to
be acquired or the work of construction, the lots and parcels of land
are subject to a special assessment for benefits in addition to the
benefits received by them in common with all other property located
in the city. The special assessment shall be determined in accordance
with this chapter, but the total amount of the additional benefits
assessed may not exceed twenty-five percent (25%) of the total cost
of acquiring land, of the improvement, or of both.
(c) The total amount of 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 total cost of acquiring new park land, of the
improvement, or of both. The balance of the total cost constitutes the
amount of the benefits resulting to all property in the city, with the
special tax levied only for the balance.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-28
Lists of property sought to be taken, certain property incurring
particular benefit, and persons affected injuriously or beneficially
Sec. 28. (a) When the resolution has been finally confirmed by the
board, the board shall have prepared a list of all the owners or
holders or property sought to be taken or that will be injuriously
affected either by the appropriation of the land or the improvement.
The board shall also have prepared a list of all of the owners or
holders of lots or parcels of land lying within two thousand (2,000)
feet on either side of the land to be acquired for park or boulevard
purposes, for an improvement, or for both that will incur a particular
benefit as provided in section 27 of this chapter by the acquisition,
location, establishment, construction, or improvement of a park,
playground, parkway, pleasure driveway, boulevard, improvement,
or structure provided in the resolution.
(b) In addition to the names, the list must show with reasonable
certainty a description of the property belonging to each person that
will be appropriated or affected either injuriously or beneficially. A
greater certainty in names and description is not necessary for the
validity of an award or assessment than is required in the assessment
of taxes.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-29
Exempt personal and real property; exception
Sec. 29. All real and personal property that is exempt from taxes
by statute is exempt from all taxes and assessments under this
chapter, except assessments against abutting property for
improvements constructed by the board under section 23 of this
chapter.
As added by Acts 1981, P.L.309, SEC.111.
IC 36-10-4-30
Awards; determination; notice describing location of land
appropriated or acquired
Sec. 30. (a) After completion of the list, the board shall proceed
to determine and award:
(1) the amount of damages sustained by the owners of the
parcels of land required to be appropriated, if any, as provided
in the resolution or that will be injuriously affected; and
(2) the amount of particular benefits that will accrue to the lots
or parcels of land, exclusive of improvements, lying within two
thousand (2,000) feet on either side of the property to be
acquired, of the improvement, or of both because of proximity
to the land to be acquired and the establishment or construction
of a project for park purposes as provided in the resolution and
in addition to the benefits received by the lots or parcels of land
in common with all property located in the city.
However, the total amount of benefits assessed against the lots and
parcels of land, exclusive of improvements, located within two
thousand (2,000) feet may not exceed twenty-five percent (25%) of
the total cost of land acquisition or of the improvement.
(b) When the list has been completed, the board shall have
published in accordance with IC 5-3-1 a notice describing the
location of the land appropriated or acquired by the purchase or the
land on which the improvement is to be made. The notice must also
state:
(1) the general character of the improvement;
(2) what assessments have been made against land within two
thousand (2,000) feet of park property; and
(3) that the assessment list, with the names of the owners to
whom damages have been awarded and against whom
assessments have been made, a description of property affected,
and the amounts of preliminary awards or assessments for each
parcel of property affected is on file and can be seen in the
board's office.
(c) In addition, the board shall have a written notice served upon
the owner of each parcel of land taken or injuriously affected, by
leaving a copy at his last and usual place of residence in the city or
by delivering a copy to the owner personally. The notice must show
separately each item of the determination regarding property owned
by him.
(d) The board shall also have mailed a notice to the residence, if
known, of persons owning land or parts of land against which special
assessments have been made, showing each item of the determination
as it affects those persons. If a person is a nonresident or his
residence is not known, then he is considered to have been notified
by the publication. The notice must name a day, not earlier than ten
(10) days after service of the notice, the last day of publication, or
the date of mailing, on which the board will receive and hear
remonstrances from persons regarding the amount of their respective
awards or assessments. Persons not included in the lists, assessments,
or awards who claim to be entitled to an assessment or award 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 as provided in this section.
As added by Acts 1981, P.L.309, SEC.111. Amended by Acts 1981,
P.L.45, SEC.99.
IC 36-10-4-31
Notice to mentally incompetent persons or minors; defects or
irregularities in proceedings
Sec. 31. (a) If a person having an interest in land affected by the
proceedings is mentally incompetent or under eighteen (18) years of
age, the board shall certify this fact to its attorney. The attorney shall
then apply to the court and secure the appointment of a guardian for
the person. The board shall give notice to the guardian, who shall
appear and protect the interest of the protected person. However, if
the protected person already has a guardian, the notice may be served
upon that guardian. The requisites of notice to the guardian are the
same as for other notices.
(b) 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 as to any other person. In case of a
defect, supplementary proceedings of the same general character as
those already prescribed may be had in order to cure it.
As added by Acts 1981, P.L.309, SEC.111. Amended by P.L.33-1989,
SEC.129.
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