SOURCE: Page 2, line 9; (02)CR110401.2. -->
Page 2, line 9, delete "IC 36-5-2-6.5(6);" and insert
" IC 36-5-2-6.5(4);".
Page 2, line 13, delete "IC 36-5-2-6.5(6)." and insert
" IC 36-5-2-6.5(4).".
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" IC 36-5-2-6.5(4);".
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" IC 36-5-2-6.5(4).".
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" IC 36-5-2-6.5(4),".
Page 3, line 29, delete "IC 36-5-2-6.5(6)." and insert
" IC 36-5-2-6.5(4).".
Page 3, line 34, delete "IC 36-5-2-6.5(6)" and insert
" IC 36-5-2-6.5(4)".
Page 3, line 42, delete "IC 36-5-2-6.5(6)." and insert
" IC 36-5-2-6.5(4).".
Page 4, line 3, delete "IC 36-5-2-6.5(6)," and insert
" IC 36-5-2-6.5(4),".
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Page 4, after line 36, begin a new paragraph and insert:
SOURCE: IC 36-7-11.4; (02)CR110401.6. -->
"SECTION 6.
IC 36-7-11.4
IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]:
Chapter 11.4. Lincoln Way East Preservation
Sec. 1. (a) The purpose of this chapter is to preserve:
(1) from deterioration;
(2) from improperly conceived or implemented change; and
(3) for the continued health, safety, enjoyment, and general
welfare of the citizens of Indiana;
a historic, scenic, aesthetically pleasing, and unique part of a street
lying within Mishawaka constituting the backbone of a unique
residential area.
(b) The general assembly intends, by passage of this chapter, to:
(1) encourage private efforts to maintain and preserve that
part of the street and other similar streets and areas in
Indiana;
(2) promote orderly and proper land usage; and
(3) preserve significant tourist attractions of historical and
economic value in Indiana;
by limiting and restricting unhealthful, unsafe, unaesthetic, or
other use of unique areas that would be inconsistent with their
character as tourist attractions and with the general welfare of the
public.
Sec. 2. As used in this chapter, "bordering property" means a
parcel of land any part of which lies within one hundred (100) feet
from any part of the right-of-way of Lincoln Way East.
Sec. 3. As used in this chapter, "commission" refers to the
Lincoln Way East preservation commission established by this
chapter.
Sec. 4. As used in this chapter, "department" refers to the
Mishawaka planning department.
Sec. 5. As used in this chapter, "interested party" means any of
the following:
(1) The governor.
(2) The Indiana department of transportation.
(3) The department of natural resources.
(4) The executive of Mishawaka.
(5) Each owner or occupant owning or occupying Lincoln
Way East or bordering property to a depth of two (2)
ownerships of the perimeter of the property.
(6) An owner, occupant, or other person having a legal or
equitable interest in a property on Lincoln Way East.
(7) The department.
Sec. 6. As used in this chapter, "Lincoln Way East" refers to
that part of an east-west street in the city of Mishawaka, St. Joseph
County, known as Lincoln Way East, that lies:
(1) east of South Brook Avenue; and
(2) west of Capital Avenue;
at the points where South Brook Avenue and Capital Avenue
intersect with Lincoln Way East.
Sec. 7. As used in this chapter, "notice" means written notice:
(1) served personally upon the person, official, or office
entitled to the notice; or
(2) served upon the person, official, or office by placing the
notice in the United States mail, first class postage prepaid,
properly addressed to the person, official, or office. Notice is
considered served if mailed in the manner prescribed by this
subdivision properly addressed to the following:
(A) The governor, both to the address of the governor's
official residence and to the governor's executive office in
Indianapolis.
(B) The Indiana department of transportation, to the
commissioner.
(C) The department of natural resources, both to the
director of the department and to the director of the
department's division of historic preservation and
archeology.
(D) An occupant, to:
(i) the person by name; or
(ii) if the name is unknown, to the "Occupant" at the
address of the Lincoln Way East or bordering property
occupied by the person.
(E) An owner, to the person by the name shown to be the
name of the owner, and at the person's address, as the
address appears in the records in the bound volumes of the
most recent real estate tax assessment records as the
records appear in the offices of the township assessors in
St. Joseph County.
(F) The department.
Sec. 8. As used in this chapter, "occupant" means a person:
(1) occupying:
(A) under a written lease; or
(B) as an owner; and
(2) using for residential purposes;
a residential dwelling located on Lincoln Way East or bordering
property.
Sec. 9. As used in this chapter, "owner" means a person who
owns a legal or an equitable interest in Lincoln Way East or
bordering property.
Sec. 10. As used in this chapter, "person" means an individual,
a corporation, a partnership, an association, a trust, a
governmental body or agency, or other entity, public or private,
capable of entering into an enforceable contract.
Sec. 11. (a) The Lincoln Way East preservation commission is
established.
(b) The commission consists of one (1) owner from each
property located on Lincoln Way East.
(c) Members of the commission serve without compensation.
(d) The members of the commission shall elect a chairperson,
vice chairperson, and treasurer from among the members of the
commission.
Sec. 12. (a) The commission shall prepare, adopt, and
promulgate the rules and regulations that are necessary, desirable,
or convenient to the orderly administration of commission affairs
and to the implementation of this chapter according to its intent
and purpose. The rules and regulations shall be made available in
writing or electronically to any person requesting a copy.
(b) Notices, petitions, requests, or other written materials to be
filed with the commission shall be filed with the department and
directed to the attention of the commission. The department shall:
(1) maintain; and
(2) make available for public inspection;
all records of the commission at the offices of the department.
(c) The city attorney for the city of Mishawaka, or a deputy city
attorney selected by the city attorney, is the attorney for the
commission. The commission may employ other legal counsel that
the commission considers necessary, convenient, or desirable.
(d) The rules and regulations of the commission must specify a
time for holding regular meetings to consider any matters properly
coming before the commission. The commission shall regularly
meet at the designated time if there is any matter requiring
consideration or determination as specified in this chapter.
Sec. 13. (a) A public officer or office entitled to receive notice
may designate in writing filed with the commission alternate or
additional persons to whom notice required to be served upon the
officer or office shall also be served. The commission shall
maintain a complete list of the persons and their addresses.
(b) A person, an official, or an office that is not served notice in
the manner prescribed by this chapter is not considered properly
notified unless the person has waived notice in writing.
Sec. 14. A person desiring the commission to consider or
determine any matter that is within the commission's jurisdiction
under this chapter must, at least thirty (30) days before a regular
meeting date of the commission upon which the person desires the
commission to determine or consider the matter, file with the
commission a petition that does the following:
(1) Specifies in detail the matter the petitioner desires the
commission to consider or determine.
(2) Requests that the matter be placed upon the commission's
docket for matters to be considered and determined at the
meeting.
Sec. 15. (a) The chairperson of the commission:
(1) may, in the chairperson's discretion; or
(2) shall, at the written request of at least two (2) members of
the commission;
call a special meeting of the commission to consider or determine
a matter for which a petition has been filed.
(b) The meeting shall be scheduled for a date:
(1) not less than thirty (30); and
(2) not more than forty-five (45);
days after the filing of the petition.
Sec. 16. (a) For good cause shown, the chairperson of the
commission may, at or before a regular or special meeting,
continue any matter docketed for consideration or determination
at the meeting until:
(1) the next regular meeting of the commission; or
(2) a special meeting set for a date not more than thirty (30)
days following the date of the meeting for which the matter
was previously docketed.
(b) The commission may, before a hearing on a petition filed
with the commission, require the person filing the petition, or a
person whose interests appear adverse to those of the petitioner, to
file with the commission before the hearing the following:
(1) Maps, plot plans, structural drawings and specifications,
landscaping plans, floor plans, elevations, cross-sectional
plans, architectural renderings, diagrams, or any other
technical or graphic materials.
(2) Additional information concerning the petitioner's or the
adverse person's intentions or interest with respect to Lincoln
Way East or bordering property.
(3) Any other additional information that the commission
considers relevant to the matters concerning the petition.
Sec. 17. (a) A quorum of the commission consists of a majority
of the commission. A quorum must be present for a public hearing
on and the determination of a matter coming before the
commission for which a public hearing is required under this
chapter.
(b) Except as otherwise provided in this chapter, a majority vote
of the members of the commission is required for the commission
to take action.
(c) A member of the commission may abstain from voting on a
matter if the member states the reasons in the record.
(d) If by virtue of the abstention of a member of the commission,
there is not present at a hearing upon a matter at least a majority
of the members of the commission able to vote on the matter, the
chairperson shall redocket the matter for a hearing or rehearing
at:
(1) the next regular meeting of the commission; or
(2) a special meeting set for a date not more than thirty (30)
days following the date of the meeting at which the matter
was or was to be heard.
Sec. 18. (a) Upon the conclusion of the hearing on a matter and
before the voting, the commission members shall, if requested by:
(1) the petitioner;
(2) an interested party; or
(3) a commission member;
deliberate in private before voting.
(b) The commission shall, before voting, consider conditions
proposed to the commission at the hearing by a person, including
a commission member, concerning the restrictions, limitations,
commitments, or undertakings that might be required by the
commission as the condition of a vote favorable to the petitioner.
(c) The commission may:
(1) on the commission's own motion; or
(2) at the request of a person;
before voting on a matter, continue the matter to a future meeting
so that the petitioner and a person appearing adverse to the
petitioner might privately agree upon the restrictions, limitations,
commitments, or undertakings to be proposed to the commission
as a condition to a vote by the commission favorable to the
petitioner.
Sec. 19. (a) Not later than thirty (30) days after a vote by the
commission finally determining a matter, the commission shall
enter a written final order stating the following:
(1) The names of the members present and voting.
(2) The total votes cast.
(3) The basic facts found by the members whose vote for or
against the petitioner determined the matter.
(b) If a tie vote occurs, the petition is considered to be
determined adversely to the petitioner, with the members casting
a vote adverse to the petitioner considered to be the majority.
Sec. 20. (a) If the commission determines affirmatively a matter
conditioned upon:
(1) the observance by a person of a restriction or limitation;
or
(2) the commitment made by or the undertaking of a person;
the commission shall, not later than ten (10) days after the vote
determining the matter conditionally, enter a temporary order
setting forth the restriction, limitation, commitment, or
undertaking.
(b) The commission shall enter a final order approving the
petition upon and after a hearing at which the petitioner must
satisfy the commission that the restriction, limitation, commitment,
or undertaking has been formalized so that an interested party
may enforce the restriction, limitation, commitment, or
undertaking in a private action.
Sec. 21. (a) Not later than five (5) days after the commission has
determined a matter by vote, a party who appeared at the hearing
shall, upon request of the commission, file with the commission a
proposed temporary or final order.
(b) A proposed final order must state in detail the basic facts
that could have been found by the commission based upon
substantial evidence of probative value actually introduced into
evidence before the commission at a hearing on the matter.
(c) A proposed temporary order must state the basic facts:
(1) that could have been found by the commission based upon
substantial evidence of probative value actually introduced
into evidence before the commission at a hearing on the
matter; and
(2) upon which the commission could properly have required
a restriction, a limitation, a commitment, or an undertaking
as a condition to a final affirmative determination of the
matter.
Sec. 22. (a) The commission shall keep complete minutes of
meetings. The minutes must reflect the following:
(1) Action taken by the commission.
(2) The reasons for the action.
(3) The factors considered by the commission in taking the
action.
(b) Copies of the minutes of a meeting shall be provided to a
person requesting a copy.
(c) An interested party who desires a transcript of a matter
heard by the commission may, at the interested party's expense,
have a transcript prepared.
Sec. 23. (a) The commission shall by rule set fees to be paid by
a person filing a petition with the commission. If the commission
has not set a fee by rule for a type of petition, the fee is twenty-five
dollars ($25).
(b) A person filing a petition with the commission shall pay the
fee required for the filing to the department. The department shall
pay the fee to the treasurer of the commission.
(c) The department has no duty regarding the fees collected
under this section except those imposed under subsection (b). Fees
collected under this section:
(1) do not belong to Mishawaka; and
(2) are not subject to any of the following:
(A)
IC 5-11-10.
(B)
IC 36-2-6.
(C) IC 36-3.
(D)
IC 36-4-8.
(d) The commission may accept money from any source for use
in administering this chapter.
Sec. 24. (a) A person may not construct on Lincoln Way East
property a structure or feature or reconstruct, alter, or demolish
Lincoln Way East property unless the following conditions have
been met:
(1) The person has previously filed with the commission an
application for a certificate of appropriateness in the form
and with the plans, specifications, and other materials that the
commission prescribes.
(2) A certificate of appropriateness has been issued by the
commission as provided in this section.
(b) After the filing of an application for a certificate of
appropriateness, the commission shall determine whether the
proposed construction, reconstruction, or alteration of the
structure in question:
(1) will be appropriate to the preservation of the area
comprised of Lincoln Way East and bordering property; and
(2) complies with the architectural and construction standards
then existing in the area.
(c) In determining appropriateness, the commission shall
consider, in addition to other factors that the commission considers
pertinent, the historical and architectural style, general design,
arrangement, size, texture, and materials of the proposed work and
the relation of the proposed work to the architectural factor of
other structures in the area. A permit for the construction,
reconstruction, alteration, or demolition of a structure on Lincoln
Way East is not valid unless the application for the permit is
accompanied by a certificate of appropriateness.
(d) The issuance of or refusal to issue a permit is a final
determination appealable under section 26 of this chapter. With
respect to a certificate of appropriateness, the commission may, by
rule or regulation, provide for:
(1) the public hearings;
(2) notice of the hearings; or
(3) the filing of the application for the certificate;
that the commission considers necessary.
Sec. 25. (a) Each owner:
(1) has a private right of action to:
(A) enforce; and
(B) prevent violation of;
this chapter; and
(2) may, with respect to Lincoln Way East or bordering
property:
(A) restrain or enjoin, temporarily or permanently, a
person from violating; and
(B) enforce by restraining order or injunction;
this chapter.
(b) The powers described in subsection (a) include the following:
(1) To enforce written commitments, agreements, or
covenants made in accordance with or under this chapter.
(2) To prevent and obtain full relief from a threatened or
existing violation of this chapter.
(3) To:
(A) prevent construction, reconstruction, alteration, or
demolition work upon; and
(B) obtain full relief from work previously done upon;
Lincoln Way East property for which a certificate of
appropriateness was required but was not issued by the
commission. A showing that issuance of certificates of
appropriateness for the work could not properly have been
denied by the commission if a proper application had been
made is a complete defense to an action under this
subdivision.
(4) To prevent further construction work upon and obtain full
relief from construction work previously done upon Lincoln
Way East property that fails in a substantial manner to
comply with all the terms and conditions:
(A) of a certificate of appropriateness issued by the
commission; or
(B) of the petition and documents filed with the
commission upon which the commission is presumed to
have based approval of the certificate.
(c) For purposes of obtaining relief sought under this section, it
is not necessary to allege or prove irreparable harm or injury to a
person or property. A person entitled to bring an action under this
section is not required to post a bond unless the court, after a
hearing, determines that a bond should be required in the interests
of justice. A person who brings an action under this section is not
liable to a person for any damages resulting from the bringing or
prosecuting of the action unless the action was not brought:
(1) in good faith; or
(2) in the reasonable belief that:
(A) this chapter; or
(B) a commitment, an agreement, or a covenant entered
into under this chapter;
had been or was about to be violated or breached.
(d) The person against whom an action is brought under
subsection (a) is liable to the interested party bringing the action
for reasonable attorney's fees and court costs if judgment is
entered by the court against the person.
(e) An action arising under this section must be brought in the
circuit or superior court of St. Joseph County, and a change of
venue from the county is not permitted.
(f) The remedy provided in this section is not exclusive but is
cumulative to any other remedies available.
Sec. 26. (a) A final determination by the commission is subject
to judicial review. An interested party aggrieved by a
determination may file with the circuit or superior court of St.
Joseph County a verified petition for writ of certiorari stating that
the determination is illegal in whole or part. The petition must be
filed not later than sixty (60) days after the date of the final
determination. A change of venue is not permitted in a cause of
action arising under this section.
(b) Upon the filing of a petition for writ of certiorari, the
petitioner shall have a copy of the petition served upon each
interested party in the manner provided in this chapter for service
of notice. Upon adequate showing by the petitioner that a copy of
the petition has been served, the circuit or superior court shall
enter an order directing the commission to show cause not later
than thirty (30) days after the entry of the order why a writ of
certiorari should not issue. If the commission or an interested
party appearing in support of the commission's determination fails
to show to the satisfaction of the court that a writ should not issue,
the court may allow a writ directed to the commission. The writ
must prescribe the time in which a return shall be made to the
court. The time:
(1) may not be less than twenty (20) days after the date of the
issuance of the writ; and
(2) may be extended by the court on application and on notice
to all parties.
(c) The return to the writ of certiorari by the commission must
contain copies of all filings, exhibits, and other matters presented
to or considered by the commission in connection with the matter
and the determination from which the appeal is taken, including a
verbatim transcript of the proceedings at each public hearing that
was held. The commission shall prepare the return at the expense
of the party that filed the petition for certiorari. The return to the
writ of certiorari must also show the grounds of the decision that
was appealed.
(d) The court may decide and determine the sufficiency of the
statements of illegality contained in the petition without further
pleadings and may make a determination and enter judgment with
reference to the legality of the decision of the commission on the
facts set out in the return to the writ of certiorari. If the court
determines that testimony is necessary for the proper disposition
of the matter, the court may take evidence to supplement the
evidence and facts disclosed by the return to the writ of certiorari.
However, a review may not be by a trial de novo, and the court
may not consider evidence that should properly or could have been
presented to the commission. In passing on the legality of the
determination by the commission, the court may:
(1) reverse;
(2) affirm, wholly or in part; or
(3) modify;
the determination of the commission brought up for review. Costs
may not be allowed against the commission.
(e) Upon the filing of a petition under this section, the final
determination of the commission with respect to which the petition
is filed is considered without force and effect pending a final
judgment by the court. If the final determination was made with
respect to a petition for approval of a proposed rezoning or zoning
variance, the approval by the commission is considered nonexistent
pending final judgment.
Sec. 27. An appeal may be taken to the Indiana court of appeals
from the final judgment of the court under section 26 of this
chapter reversing, affirming, or modifying the determination of the
commission in the same manner and upon the same terms,
conditions, and limitations as appeals in other civil actions.
Sec. 28. This chapter is cumulative to and does not supersede,
preempt, or invalidate a zoning, building, health, or other law,
ordinance, or code in effect as of June 30, 2002, except to the extent
the law, ordinance, or code is in irreconcilable conflict with this
chapter. If an irreconcilable conflict exists, only those parts of the
law, ordinance, or code that conflict with this chapter are
inapplicable as the parts pertain to the subject matter of this
chapter.".
(Reference is to HB 1104 as introduced.)
and when so amended that said bill do pass.
__________________________________
CR110401/DI 94 2002