February 10, 2009
SENATE BILL No. 299
DIGEST OF SB 299
(Updated February 5, 2009 2:11 pm - DI 103)
Citations Affected: IC 8-1; IC 8-1.5; IC 32-24.
Synopsis: Condemnation of public utility property. Specifies the
procedures by which a municipality may exercise the power of eminent
domain to acquire the property of a public utility.
Effective: July 1, 2009.
January 7, 2009, read first time and referred to Committee on Utilities & Technology.
February 9, 2009, amended, reported favorably _ Do Pass.
February 10, 2009
First Regular Session 116th General Assembly (2009)
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SENATE BILL No. 299
A BILL FOR AN ACT to amend the Indiana Code concerning
utilities and transportation.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 8-1-2-92; (09)SB0299.1.1. -->
SECTION 1. IC 8-1-2-92 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2009]: Sec. 92. (a)
Every license, permit, or
franchise granted after April 30, 1913, to any public utility shall have
the effect of an indeterminate permit subject to the provisions of this
chapter, and subject to the provisions that:
the license, franchise, or permit may be revoked by the
commission for cause; or
the municipality may purchase or condemn
such public utility,
as provided in
this section. IC 8-1.5-2.
Any such municipality is authorized to purchase such property and
every such public utility is required to sell such property at the value
and according to the terms and conditions as provided in
If this chapter should be repealed or annulled, then all such
indeterminate franchises, permits, or grants shall cease and become
inoperative, and in place thereof such utility shall be reinstated in the
possession and enjoyment of the license, permit, or franchise
surrendered by such utility at the time of the issue of the indeterminate
franchise, permit, or grant; but in no event shall such reinstated license,
permit, or franchise be terminated within a less period than five (5)
years from the date of the repeal or annulment of this chapter.
SOURCE: IC 8-1-2-93; (09)SB0299.1.2. -->
SECTION 2. IC 8-1-2-93 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2009]: Sec. 93. Any public utility accepting or
operating under any indeterminate license, permit, or franchise granted
after April 30, 1913, shall by acceptance of any such indeterminate
license, permit, or franchise be deemed to have consented to a future
purchase or condemnation of its property including property located
in contiguous territory within six (6) miles of the corporate limits of
such municipality by the municipality in which such utility is located,
at the value and under the terms and conditions as provided in
chapter, IC 8-1.5-2, and shall thereby be deemed to have waived the
right of requiring the necessity of such taking to be established by the
judgment of a court, and to have waived all other remedies and rights
relative to condemnation, except such rights and remedies as are
provided in this chapter IC 8-1.5-2 and shall have been deemed to have
consented to the revocation of its license, permit, or franchise by the
commission for cause.
SOURCE: IC 8-1.5-2-7; (09)SB0299.1.3. -->
SECTION 3. IC 8-1.5-2-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 7. (a) A certificate of
public convenience and necessity is not required as a condition
precedent to the owning, leasing, acquisition, construction, or operation
of a utility by a municipality, even if there is a public utility engaged in
a similar service. The acquisition of electric utility property and
assignment of a municipal electric utility's service area are, however,
subject to the provisions of IC 8-1-2.3 and IC 8-1-2-95.1.
(b) A municipality that wants to own and operate, including by
purchase or condemnation under IC 8-1-2-92, IC 8-1-2-93, or
a utility where there is a public utility engaged in a
(1) under a franchise granted by the municipality; or
(2) under an indeterminate permit as defined in IC 8-1-2-1;
after a hearing
as provided by under
section 10 of this
chapter and an election as
by section 16 of this
chapter, declare by ordinance that public convenience and necessity
require the establishment, including by purchase or condemnation
under IC 8-1-2-92, IC 8-1-2-93, or otherwise,
of a municipally
owned utility. However, an election under section 16 of this chapter
is not required if the municipality and the public utility enter into
a mutually acceptable agreement for the municipality's acquisition
of the property of the public utility, including the compensation
paid by the municipality to the public utility. An ordinance adopted
under this subsection is final.
SOURCE: IC 8-1.5-2-11; (09)SB0299.1.4. -->
SECTION 4. IC 8-1.5-2-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 11. (a) If the municipal
legislative body adopts an ordinance under section 7 of this chapter
for the construction or acquisition of a utility, or under section 15 of
this chapter for the condemnation of the property of a public
utility, not more than thirty (30) days after the adoption of the
ordinance a public utility engaged in rendering the same kind of utility
service in the municipality, or in the contiguous area in which the
municipality proposes to operate, may bring an action against the
municipality in the circuit court or superior court of the county in
which the municipality is located for the purpose of securing a judicial
review and determination of the question of public convenience and
(b) Pending such a determination, further action may not be taken
by the municipality for the construction or acquisition of the utility.
(c) The cause shall be heard without delay and determined by the
court without a jury, and at the hearing, either party may introduce
(d) The cause may be appealed to the court of appeals following
(e) This section does not apply to the acquisition of a subject
utility company under IC 8-1-30-5.
SOURCE: IC 8-1.5-2-15; (09)SB0299.1.5. -->
SECTION 5. IC 8-1.5-2-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 15. (a) Before a
municipality may exercise the power of eminent domain under
IC 8-1-2-92, IC 8-1-2-93, or otherwise, to acquire the property of
a public utility, the municipality shall make a good faith offer to
purchase the property of the public utility.
If the municipality and the owners of
public utility are
unable to agree upon a price to be paid for the property of the public
utility, the municipality may:
by ordinance declare that a public necessity exists for the
condemnation of the utility property; exercise the power of
(2) bring an action in the circuit or superior court of the county
where the municipality is located against the utility for the
condemnation of the property.
(b) An ordinance adopted under subsection (a) is final.
For the purpose of acquiring the property of a public utility under
subdivision (2), the municipality
(1) may shall exercise the power of
eminent domain in accordance with IC 32-24; and (2) is required only
to establish the necessity of taking as this chapter requires. under
(d) (c) The provisions of this section do not apply to the acquisition
(1) electric utility property or the assignment of service areas
covered by IC 8-1-2.3 and IC 8-1-2-95.1; or
(2) a subject utility company under IC 8-1-30-5.
SOURCE: IC 8-1.5-2-17; (09)SB0299.1.6. -->
SECTION 6. IC 8-1.5-2-17 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 17. (a) A municipality,
by exercising the power of eminent domain in accordance with
IC 32-24 or other applicable law, may acquire property rights inside or
outside its corporate boundaries within the territory described in
section 3(b) of this chapter as necessary for the business of a
municipally owned utility.
(b) The municipal legislative body may provide for utility lines to
be laid through the municipality as the municipally owned utility
requires. The municipality may use any property or property rights
necessary for constructing, acquiring, operating, or protecting from
injury or pollution the municipally owned utility services.
(c) For the purpose of preserving and protecting from injury or
pollution the municipal water services, the municipality may exercise
its powers in areas within twenty-five (25) miles outside its corporate
(d) All attachments made to the utility fixtures, whether intended for
public or private use, are subject to the supervision and rules of the
utility for protection against abuse or destruction or the inordinate use
or waste of utility services.
SOURCE: IC 32-24-2-5; (09)SB0299.1.7. -->
SECTION 7. IC 32-24-2-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 5. (a) Except as
provided in subsection (b), if:
(1) a municipality has the power to acquire property under this
(2) another statute provides for proceedings by a municipality for
acquiring property under this chapter;
the board exercising those powers may proceed under IC 32-24-1
instead of this chapter.
(b) If a municipality acquires property under IC 8-1.5-2, the
municipality shall proceed under IC 32-24-1 instead of this
SOURCE: IC 32-24-2-6; (09)SB0299.1.8. -->
SECTION 8. IC 32-24-2-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 6. (a) This chapter
applies if the works board of a municipality wants to acquire property
for the use of the municipality or to open, change, lay out, or vacate a
street, an alley, or a public place in the municipality, including a
proposed street or alley crossings of railways or other rights-of-way.
However, this chapter does not apply if a municipality wants to
acquire the property of a public utility (as defined in IC 8-1-2-1).
(b) The works board must adopt a resolution that the municipality
wants to acquire the property. The resolution must describe the
property that may be injuriously or beneficially affected. The board
shall have notice of the resolution published in a newspaper of general
circulation published in the municipality once each week for two (2)
consecutive weeks. The notice must name a date, at least ten (10) days
after the last publication, at which time the board will receive or hear
remonstrances from persons interested in or affected by the proceeding.
(c) The works board shall consider the remonstrances, if any, and
then take final action, confirming, modifying, or rescinding its original
resolution. This action is conclusive as to all persons.