CHAPTER 1. INCORPORATION; DISSOLUTION
IC 36-5
ARTICLE 5. GOVERNMENT OF TOWNS
IC 36-5-1
Chapter 1. Incorporation; Dissolution
IC 36-5-1-1
Application of chapter
Sec. 1. This chapter applies to all towns except an included town
(as defined in IC 36-3-1-7).
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.5-1989,
SEC.105.
IC 36-5-1-2
Proceedings to incorporate; petition; contents; signatures; number
of petitioners
Sec. 2. (a) Proceedings to incorporate a town may be instituted by
filing a petition in quadruplicate with the executive of each county
in which a part of the territory sought to be incorporated is located.
The petition must be signed by at least fifty (50) owners of land in
the territory and must state that:
(1) the territory is used or will, in the reasonably foreseeable
future, be used generally for commercial, industrial, residential,
or similar purposes;
(2) the territory is reasonably compact and contiguous;
(3) there is enough undeveloped land in the territory to permit
reasonable growth of the town; and
(4) incorporation is in the best interests of the citizens of the
territory.
(b) The signatures of the petitioners must be verified, and the
verification must include a statement that the petitioners are owners
of land in the territory sought to be incorporated.
(c) In determining the number of petitioners, not more than one
(1) person having an interest in a single parcel of land may be
counted, and a person owning more than one (1) parcel of land in the
area may be counted only once.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.195-1984,
SEC.1; P.L.86-1999, SEC.1.
IC 36-5-1-3
Items to accompany petition
Sec. 3. A petition for incorporation must be accompanied by the
following items, to be supplied at the expense of the petitioners:
(1) A survey, certified by a surveyor registered under
IC 25-21.5, showing the boundaries of and quantity of land
contained in the territory sought to be incorporated.
(2) An enumeration of the territory's residents and landowners
and their mailing addresses, completed not more than thirty (30)
days before the time of filing of the petition and verified by the
persons supplying it.
(3) A statement of the assessed valuation of all real property
within the territory, certified by the township assessor of the
township in which the territory is located, or the county
assessor if there is no township assessor for the township.
(4) A statement of the services to be provided to the residents
of the proposed town and the approximate times at which they
are to be established.
(5) A statement of the estimated cost of the services to be
provided and the proposed tax rate for the town.
(6) The name to be given to the proposed town.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.241-1999,
SEC.3; P.L.219-2007, SEC.115; P.L.146-2008, SEC.707.
IC 36-5-1-4
Filing of petition; requirements; forwarding of copies;
investigation; recommendations
Sec. 4. (a) On receipt of a petition for incorporation, the county
executive shall examine it to see that it meets the requirements of
sections 2 and 3 of this chapter. If the petition is in order, the
executive shall mark it with the date of filing and immediately
forward one (1) copy to the plan commission, if any, having
jurisdiction.
(b) The commission shall investigate the proposed incorporation
and report their recommendations of approval or disapproval to the
county executive at least ten (10) days before the hearing required by
section 5 of this chapter. In making their investigations, they may use
the services of any state or local government agency, and in making
their report and recommendations, they shall be guided by the
requirements for incorporation set out in section 8 of this chapter.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.24-1995,
SEC.25.
IC 36-5-1-5
Public hearing on petition; notice
Sec. 5. The county executive shall hold a public hearing on a
petition for incorporation not less than sixty (60) nor more than
ninety (90) days after the date of the filing of the petition, and shall
require the petitioners to send notice of the hearing by certified mail
to:
(1) the residents and landowners of the territory as listed in the
petition;
(2) the legislative body of each municipality having any
corporate boundary within three (3) miles of the perimeter of
the proposed new town;
(3) the executive of any other county in which a part of the
proposed new town is located; and
(4) the executive of a township in which all or a part of the
proposed new town is located.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-6
Parties entitled to be heard; remonstrance; dismissal of petition
Sec. 6. The recipients of the notice required by section 5 of this
chapter are parties to and are entitled to be heard at the public
hearing. The petition for incorporation shall be dismissed if at any
time during the incorporation proceedings, including an appeal, the
county executive or a court hearing an appeal is presented with a
verified remonstrance against incorporation, signed by at least:
(1) fifty-one percent (51%) of the owners of a fee simple
interest in real property in the affected territory; or
(2) the owners of seventy-five percent (75%), in assessed
valuation, of the real property in the affected territory.
The executive or court may determine the validity of the
remonstrance by submitting it to the county auditor for verification.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-7
Incorporating town within certain distance of city corporate
boundaries; consent by city ordinance; application; expiration
Sec. 7. (a) The county executive must obtain the consent by
ordinance of the legislative body of a consolidated city before
incorporating a town if any part of the proposed town is within four
(4) miles of the corporate boundaries of the city.
(b) The county executive must obtain the consent by ordinance of
the legislative body of a second or third class city before
incorporating a town if any part of the proposed town is within three
(3) miles of the corporate boundaries of the city.
(c) Subsection (b) does not apply to a county having a population
of more than four hundred thousand (400,000) but less than seven
hundred thousand (700,000).
As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1982,
P.L.1, SEC.58; P.L.195-1984, SEC.2; P.L.5-1988, SEC.212;
P.L.12-1992, SEC.161.
IC 36-5-1-7.1
County executive; population more than 45,000 but less than
47,000; exemption from consent requirements
Sec. 7.1. The executive of a county having a population of more
than fifty-five thousand (55,000) but less than sixty-five thousand
(65,000) is exempt from:
(1) the requirements of section 7(a) of this chapter; and
(2) the requirements of section 7(b) of this chapter if the second
or third class city is within a county containing a consolidated
city.
As added by Acts 1982, P.L.210, SEC.1. Amended by P.L.12-1992,
SEC.162; P.L.170-2002, SEC.145.
IC 36-5-1-8
Approval of petition; required findings
Sec. 8. The county executive may approve a petition for
incorporation only if it finds all of the following:
(1) That the proposed town is used or will, in the reasonably
foreseeable future, be used generally for commercial, industrial,
residential, or similar purposes.
(2) That the proposed town is reasonably compact and
contiguous.
(3) That the proposed town includes enough territory to allow
for reasonable growth in the foreseeable future.
(4) That a substantial majority of the property owners in the
proposed town have agreed that at least six (6) of the following
municipal services should be provided on an adequate basis:
(A) Police protection.
(B) Fire protection.
(C) Street construction, maintenance, and lighting.
(D) Sanitary sewers.
(E) Storm sewers.
(F) Health protection.
(G) Parks and recreation.
(H) Schools and education.
(I) Planning, zoning, and subdivision control.
(J) One (1) or more utility services.
(K) Stream pollution control or water conservation.
(5) That the proposed town could finance the proposed
municipal services with a reasonable tax rate, using the current
assessed valuation of properties as a basis for calculation.
(6) That incorporation is in the best interest of the territory
involved. This finding must include a consideration of:
(A) the expected growth and governmental needs of the area
surrounding the proposed town;
(B) the extent to which another unit can more adequately and
economically provide essential services and functions; and
(C) the extent to which the incorporators are willing to enter
into agreements under IC 36-1-7 with the largest neighboring
municipality, if that municipality has proposed such
agreements.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.195-1984,
SEC.3.
IC 36-5-1-9
Denied petition; resubmittal
Sec. 9. A petition for incorporation that is denied may not be
resubmitted within one (1) year after the date of final denial.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-10
Repealed
(Repealed by Acts 1980, P.L.2, SEC.20.)
IC 36-5-1-10.1
Adoption of ordinance incorporating town; required provisions to
conduct elections; territory not included in any district or in more
than one district; effective date of ordinance
Sec. 10.1. (a) Except as provided in subsection (g), if the county
executive makes the findings required by section 8 of this chapter, it
may adopt an ordinance incorporating the town. The ordinance must:
(1) provide that:
(A) all members of the town legislative body are to be
elected at large (if the town would have a population of less
than three thousand five hundred (3,500); or
(B) divide the town into not less than three (3) nor more than
seven (7) districts; and
(2) direct the county election board to conduct an election in the
town on the date of the next general or municipal election to be
held in any precincts in the county.
An election conducted under this section must comply with IC 3
concerning town elections. If, on the date that an ordinance was
adopted under this section, absentee ballots for a general or
municipal election have been delivered under IC 3-11-4-15 for voters
within a precinct in the town, the election must be conducted on the
date of the next general or municipal election held in any precincts
in the county after the election for which absentee balloting is being
conducted. However, a primary election may not be conducted before
an election conducted under this section, regardless of the population
of the town.
(b) Districts established by an ordinance adopted under this
section must comply with IC 3-11-1.5.
(c) If any territory in the town is not included in one (1) of the
districts established under this section, the territory is included in the
district that:
(1) is contiguous to that territory; and
(2) contains the least population of all districts contiguous to
that territory.
(d) If any territory in the town is included in more than one (1) of
the districts established under this section, the territory is included
in the district that:
(1) is one (1) of the districts in which the territory is described
in the ordinance adopted under this section;
(2) is contiguous to that territory; and
(3) contains the least population of all districts contiguous to
that territory.
(e) Except as provided in subsection (f), an ordinance adopted
under this section becomes effective when filed with:
(1) the office of the secretary of state; and
(2) the circuit court clerk of each county in which the town is
located.
(f) An ordinance incorporating a town under this section may not
take effect during the year preceding a year in which a federal
decennial census is conducted. An ordinance under this section that
would otherwise take effect during the year preceding a year in
which a federal decennial census is conducted takes effect January
1 of the year in which a federal decennial census is conducted.
(g) Proceedings to incorporate a town across county boundaries
must have the approval of the county executive of each county that
contains a part of the proposed town. Each county that contains a
part of the proposed town must adopt identical ordinances providing
for the incorporation of the town.
(h) Notwithstanding subsection (f) as that subsection existed on
December 31, 2009, an ordinance that took effect January 2, 2010,
because of the application of subsection (f), as that subsection
existed on December 31, 2009, is instead considered to take effect
January 1, 2010, without the adoption of an ordinance or an amended
ordinance or any other additional action being required.
As added by Acts 1980, P.L.2, SEC.16. Amended by P.L.5-1983,
SEC.12; P.L.5-1986, SEC.54; P.L.13-1988, SEC.19; P.L.5-1989,
SEC.106; P.L.7-1990, SEC.61; P.L.3-1993, SEC.268; P.L.3-1997,
SEC.457; P.L.86-1999, SEC.2; P.L.123-2000, SEC.5; P.L.113-2010,
SEC.123.
IC 36-5-1-11
Liability for existing indebtedness or other obligations; payment to
township
Sec. 11. (a) If the township in which a new town is incorporated
is indebted or has outstanding unpaid bonds or other obligations at
the time of the incorporation, the town is liable for and shall pay that
indebtedness in the same ratio as the assessed valuation of the
property in the town bears to the assessed valuation of all property
in the township, as shown by the most recent assessment for taxation
before the incorporation, unless the assessed property within the
town is already liable for the indebtedness.
(b) The town shall pay its indebtedness under this section to the
township executive. If the indebtedness consists of outstanding
unpaid bonds or notes of the township, the payments to the township
executive shall be made as the principal or interest on the bonds or
notes becomes due.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-11.5
Localities considered towns for all purposes
Sec. 11.5. A locality that:
(1) has elected town officers and has governed itself as a town
for at least ten (10) years preceding September 1, 1988; or
(2) has been incorporated under this chapter after August 31,
1988;
is a town for all purposes unless the town has been dissolved under
this chapter or IC 36-5-1.1.
As added by P.L.1-1989, SEC.69.
IC 36-5-1-12
Proceedings to dissolve or change name; petition, signatures, and
reasons; census
Sec. 12. (a) Proceedings to dissolve a town may be instituted
under either this section or IC 36-5-1.1.
(b) A proceeding under this section may be instituted to either
dissolve the town or change its name. The proceeding is instituted by
filing a petition with the town clerk. The petition must be signed by
at least the number of the voters of the town required to place a
candidate on the ballot under IC 3-8-6-3, must be verified by at least
one (1) of the petitioners, and must include the reasons for the
dissolution or change of name.
(c) A census of all the voters of the town, taken within ten (10)
days before the filing of the petition, must be filed with the petition.
The person who prepared the census must, by affidavit attached to
the census, verify that the census is correct.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.342-1987,
SEC.1; P.L.12-1995, SEC.129.
IC 36-5-1-13
Bond for costs and expenses
Sec. 13. A petition and census filed under section 12 of this
chapter must be accompanied by a bond for costs and expenses,
payable to and approved by the town legislative body. The
petitioners shall pay all costs and expenses incurred under this
chapter, including the expenses of an election, if their petition is not
successful.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-14
Notice of filing of petition, census, and day of hearing
Sec. 14. When a petition and census are filed under section 12 of
this chapter, the town clerk shall give notice of the filing and of the
day of a hearing on the petition and census, in the manner prescribed
by IC 5-3-1.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-15
Hearing; withdrawal of petitioner's name; decision
Sec. 15. (a) On the date named in the notice given under section
14 of this chapter, the town legislative body shall hear and consider:
(1) the petition and census; and
(2) all statements presented in favor of or in opposition to
granting the petition.
The legislative body shall then decide whether there is sufficient
cause to submit the question of dissolving the town or changing its
name to the voters of the town.
(b) A petitioner who wants to withdraw his name from the petition
must do so before the legislative body makes its decision. The
legislative body may not count names withdrawn from the petition
as part of the total required by section 12 of this chapter.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-16
Dissolution or change of name; date of election; notice
Sec. 16. If the town legislative body decides to submit the
question of dissolving the town or changing its name to the voters of
the town, it shall certify the question to the county election board.
The election board shall fix the date of an election for that purpose.
The town clerk shall give notice of the election in the manner
prescribed by IC 5-3-1.
As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1981,
P.L.45, SEC.15; P.L.3-1987, SEC.559.
IC 36-5-1-17
Election; ballots; clerk's statement of votes cast
Sec. 17. (a) An election under section 16 of this chapter shall be
held in the town. The voters shall, by ballot, vote on the question
submitted to them. The question shall be placed on the ballot in the
form prescribed by IC 3-10-9-4 and must state "Shall the town of
___________________ dissolve?" or "Shall the town of
_______________ change its name to ______________________?".
(b) Within four (4) days after the canvass of the vote by the
county election board, the town clerk shall prepare and attest a
statement of all the votes cast at the election, to be signed by the
members of the county election board and filed with:
(1) the clerk of the county in which the greatest percentage of
the population of the town is located; and
(2) the office of the secretary of state.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.3-1987,
SEC.560; P.L.5-1989, SEC.107; P.L.3-1997, SEC.458;
P.L.123-2000, SEC.6.
IC 36-5-1-18
Number of votes and voters required; effective dates of change of
name and dissolution; disposition of property; validity of contracts
Sec. 18. (a) If at least two-thirds (2/3) of the votes cast in an
election under section 16 of this chapter are affirmative, and at least
four-fifths (4/5) of all the voters listed in the census voted in the
election, the dissolution or change of name takes effect in the manner
prescribed by this section.
(b) A change of name takes effect thirty (30) days after the filing
of the statement required by section 17 of this chapter.
(c) Except as provided in subsection (d), a dissolution takes effect
six (6) months after the filing of the statement required by section 17
of this chapter. The property owned by the town after payment of
debts and liabilities shall be disposed of in the manner chosen by a
majority of the voters of the town at a special election for that
purpose. Dissolution of a town does not affect the validity of a
contract to which the town is a party.
(d) A dissolution under this chapter may not take effect during the
year preceding a year in which a federal decennial census is
conducted. A dissolution that would otherwise take effect during the
year preceding a year in which a federal decennial census is
conducted takes effect January 1 of the year in which a federal
decennial census is conducted.
(e) Notwithstanding subsection (d) as that subsection existed on
December 31, 2009, a dissolution that took effect January 2, 2010,
because of the application of subsection (d), as that subsection
existed on December 31, 2009, is instead considered to take effect
January 1, 2010, without any additional action being required.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.5-1989,
SEC.108; P.L.113-2010, SEC.124.
IC 36-5-1-19
Aggrieved persons; appeal; procedure
Sec. 19. (a) A person aggrieved by a decision made by the town
legislative body under section 15 of this chapter or by the result of an
election under section 16 of this chapter may, within thirty (30) days,
appeal that decision or result to the circuit court for the county in
which the town is located. The appeal is instituted by giving written
notice to the town legislative body and filing with the town clerk a
bond in the sum of five hundred dollars ($500), with surety approved
by the legislative body. The bond must provide that the appeal will
be duly prosecuted and that the appellants will pay all costs if the
appeal is decided against them.
(b) When an appeal is instituted, the town clerk shall file with the
clerk of the circuit court a transcript of all proceedings in the case,
together with all papers filed in the case. The town legislative body
may not take further action in the case until the appeal is heard and
determined.
(c) An appeal under this section shall be heard by the circuit court
without a jury. Change of venue from the judge may be granted, but
change of venue from the county may not be granted.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-1-20
Towns not functioning for ten years; hearing; findings; adoption
of ordinance or ordering dissolution
Sec. 20. (a) This section does not apply to a town described by
IC 36-5-1-11.5.
(b) A town subject to this chapter may be dissolved if the county
election board of the county in which the greatest percentage of
population of the town is located conducts a public hearing and finds
that the town has not elected town officers or had a functioning town
government during the preceding ten (10) years.
(c) The county election board shall certify the board's findings to
the county executive, who may adopt an ordinance or (in a county
subject to IC 36-2-3.5) issue an order to dissolve the town.
As added by P.L.3-1993, SEC.269.