Introduced Version






HOUSE BILL No. 1301

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 32-24-4-1; IC 36-9-23; IC 36-9-25-10.

Synopsis: Eminent domain for sewer services. Provides that the statute governing eminent domain procedures for public utilities and other corporations: (1) applies to sewer utilities; and (2) includes the authority to condemn less than a fee simple estate in land or real estate, including the authority to condemn or appropriate a new or an existing easement for a right-of-way. Provides that the authority of a municipally owned sewer utility to condemn or appropriate real property includes: (1) the authority to condemn or appropriate any real property that is needed to allow a mandatory connection to the municipality's sewer system by a property using a septic system or similar structure, regardless of whether the real property to be condemned or appropriated is the property that will be connected to the sewer system; and (2) the authority to condemn or appropriate less than a fee simple estate in real property, including the authority to condemn or appropriate a new or an existing easement for a right-of-way. Makes conforming amendments.

Effective: Upon passage.





DeLaney




    January 13, 2011, read first time and referred to Committee on Local Government.







Introduced

First Regular Session 117th General Assembly (2011)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2010 Regular Session of the General Assembly.

HOUSE BILL No. 1301



    A BILL FOR AN ACT to amend the Indiana Code concerning local government.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 32-24-4-1; (11)IN1301.1.1. -->     SECTION 1. IC 32-24-4-1, AS AMENDED BY P.L.163-2006, SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. (a) A person, firm, partnership, limited liability company, or corporation authorized to do business in Indiana and authorized to:
        (1) furnish, supply, transmit, transport or distribute electrical energy, gas, oil, petroleum, water, heat, steam, hydraulic power, or communications by telegraph or telephone to the public or to any town or city; or
         (2) collect, treat, purify, and dispose of in a sanitary manner liquid and solid waste, sewage, night soil, and industrial waste; or
        (2) (3) construct, maintain or operate turnpikes, toll bridges, canals, public landings, wharves, ferries, dams, aqueducts, street railways, or interurban railways for the use of the public or for the use of any town or city;
may take, acquire, condemn, and appropriate land, real estate, or any

interest in the land or real estate to accomplish the essential delivery of services described in subdivisions (1) and (2). through (3). The authority to condemn or appropriate an interest in land or real estate under this section includes the authority to condemn less than a fee simple estate in land or real estate, including the authority to condemn or appropriate a new or an existing easement for a right-of-way.
    (b) A person described in subsection (a) has all accommodations, rights, and privileges necessary to accomplish the use for which the property is taken. A person acting under subsection (a) may use acquired, condemned, or appropriated land to construct railroad siding, switch, or industrial tracks connecting its plant or facilities with the tracks of any common carrier.

SOURCE: IC 36-9-23-2; (11)IN1301.1.2. -->     SECTION 2. IC 36-9-23-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2. (a) A municipality may:
        (1) acquire, construct, improve, operate, and maintain sewage works under this chapter;
        (2) acquire, by gift, grant, purchase, condemnation, or otherwise, all lands, easements, rights-of-way, and other property that are necessary for the sewage works or the extension of sewers;
        (3) issue revenue bonds to pay the cost of acquiring, constructing, and improving the sewage works and property; and
        (4) lease sewage works from a person, an entity, a corporation, a public utility, or a unit for a term not to exceed fifty (50) years.
A sewage works leased under this section is subject to IC 5-16-7.
     (b) The authority of a municipality under subsection (a)(2) to condemn lands, easements, rights-of-way, and other property necessary for the sewage works or the extension of sewers includes:
        (1) the authority to condemn or appropriate any real property that is needed to allow a connection described in section 30 of this chapter, regardless of whether the real property to be condemned or appropriated is the property that will be connected to the municipality's sewer system under section 30 of this chapter; and
        (2) the authority to condemn or appropriate less than a fee simple estate in real property, including the authority to condemn or appropriate a new or an existing easement for a right-of-way.

SOURCE: IC 36-9-23-14; (11)IN1301.1.3. -->     SECTION 3. IC 36-9-23-14 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 14. (a) A municipality may, in the manner prescribed by IC 32-24, condemn:
        (1) sewage works; and
        (2) any land, easements, rights-of-way, franchises, and other property it considers necessary for the construction of sewage works, or for improvements to sewage works, or for the extension of sewers.
However, the municipality may pay for any property condemned or purchased only from money provided under this chapter.
     (b) The authority of a municipality under subsection (a)(2) to condemn land, easements, rights-of-way, franchises, and other property necessary for the construction of sewage works, for improvements to sewage works, or for the extension of sewers includes:
        (1) the authority to condemn or appropriate any real property that is needed to allow a connection described in section 30 of this chapter, regardless of whether the real property to be condemned or appropriated is the property that will be connected to the municipality's sewer system under section 30 of this chapter; and
        (2) the authority to condemn or appropriate less than a fee simple estate in real property, including the authority to condemn or appropriate a new or an existing easement for a right-of-way.

    (b) (c) In any proceedings to condemn, orders that are just to the municipality and to the owners of the property to be condemned may be made. An undertaking or other security securing the property owners against any loss or damage resulting from the failure of the municipality to accept and pay for the property may be required, but the undertaking or security imposes liability upon the municipality only in the amount that may be paid from money provided under this chapter.
    (c) (d) If the board wants to purchase sewage works, it may obtain and exercise an option for the purchase of the works, or may enter into a contract for the purchase in the manner and under the terms and conditions that it considers proper.
    (d) (e) If the board wants to purchase or condemn sewage works already constructed, it must, at or before the time of adoption of the ordinance authorizing the acquisition, determine what repairs, replacements, additions, and other actions are required to make the works effective for their purpose. An estimate of the cost of these actions shall be included in the estimate of cost made under section 11 of this chapter. These actions shall be taken upon the acquisition of the works, as a part of the cost of the acquisition.
SOURCE: IC 36-9-23-30; (11)IN1301.1.4. -->     SECTION 4. IC 36-9-23-30 IS AMENDED TO READ AS

FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 30. (a) Subject to subsection (b), a municipality that operates sewage works under this chapter or under any statute repealed by IC 19-2-5-30 (repealed September 1, 1981) may require:
        (1) connection to its sewer system of any property producing sewage or similar waste; and
        (2) discontinuance of the use of privies, cesspools, septic tanks, and similar structures.
    (b) A municipality may exercise the powers granted by subsection (a) only if:
        (1) there is an available sanitary sewer within three hundred (300) feet of the property line of the affected property; and
        (2) it has given notice by certified mail to the property owner at the address of the property, at least ninety (90) days before the date specified for connection in the notice.
    (c) A municipality may establish, enforce, and collect reasonable penalties for failure to make a connection under this section.
    (d) A municipality may apply to the circuit or superior court for the county in which it is located for an order to require a connection under this section. The court shall assess the cost of the action and reasonable attorney's fees of the municipality against the property owner in such an action.
     (e) A municipality may exercise the powers granted by sections 2(b) and 14(b) of this chapter to effect a connection under this section.

SOURCE: IC 36-9-25-10; (11)IN1301.1.5. -->     SECTION 5. IC 36-9-25-10, AS AMENDED BY P.L.175-2006, SECTION 22, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 10. In performing its duties the board may do the following:
        (1) If needed for sewage works or the extension of sewers, condemn, appropriate, lease, rent, purchase, and hold any real or personal property within the district or within five (5) miles outside the boundaries of the district. The authority of the board under this subdivision to condemn or appropriate real property within the district or within five (5) miles outside the boundaries of the district includes:
            (A) the authority to condemn or appropriate any real property that is needed to allow a connection described in IC 36-9-23-30, regardless of whether the real property to be condemned or appropriated is the property that will be connected to the sewer system under IC 36-9-23-30; and
            (B) the authority to condemn or appropriate less than a fee

simple estate in real property, including the authority to condemn or appropriate a new or an existing easement for a right-of-way.
        (2) Enter upon any lots or lands for the purpose of surveying or examining them to determine the location of any sewage works or other structures, roads, levees, or walls connected with or necessary for the use or operation of the facilities.
        (3) Design, order, contract for, construct, reconstruct, and maintain the sewage works.
        (4) Build or have built all roads, levees, walls, other structures, or lagoons that may be desirable in connection with sewage works and make improvements to the grounds and premises under its control, including the erection and operation of a plant for the removal of sand and gravel from the grounds.
        (5) Compel the owners, operators, or lessees of all factories, shops, works, plants, or other structures to treat, purify, or eliminate from the sewage and trade waste of the premises any ingredients that interfere with the successful operation of the sewage works. It may compel the owners, operators, or lessees of the premises located on a watercourse to direct an excessive flow of water into the watercourse.
        (6) Review and approve plans for privately constructed plants for the treatment or elimination of trade waste. This is to insure that an owner, operator, or lessee of a house, factory, shop, works, plant, or other structure that may be directly or indirectly connected with sewers emptying into the sewage works does not construct a purification plant, machine, or other device for eliminating or treating the trade waste from those places for the purpose of eliminating ingredients that would harm the sewage works until the plans have been submitted to and approved by the board. After plans have been submitted to the board, it may reject them in their entirety or order changes to be made that include its supervision and regulation of the operation. An appeal may be taken from the decision of the board rejecting the plans submitted or ordering changes by the owner, operator, or lessee of a proposed private plant, in the same manner as appeals from the works board as far as applicable.
        (7) Build or have built a plant or plants and all appurtenances for the treatment of sludge, pressing of sludge, or converting sludge into marketable fertilizer.
        (8) Sell any byproduct from the sewage works, or furnish any byproduct free for the use of the municipality or for other public

uses, with revenue derived from the sale above the amount needed for maintenance to be paid into the sanitary district bond fund, or if no bonds are outstanding, to revert to its general fund.
        (9) Compel the owners, lessees, or agents in possession of lots or land from which sewers discharge sewage or drainage and pollute a watercourse or body of water or constitute a menace to public health and welfare to connect the sewers with drains leading directly or indirectly into sewage works regulating the use and assessing reasonable charges.
        (10) Construct or have constructed regulating devices at the junction of combined sewers with intercepting sewers to regulate the discharge into the intercepting and connecting sewers to prevent the pollution of streams or bodies of water or a menace to the public health and welfare.
        (11) Construct, add to, reconstruct, or maintain an incinerating or reduction plant or other plants for the conversion, destruction, or disposal of garbage, filth, ashes, dirt, and rubbish. The board may operate the plant in connection with sewage works, and sell any byproducts derived from the garbage, filth, ashes, or rubbish, including sand and gravel taken from lands under the control of the board at prices that are determined by the board, or furnish it free to the municipality or for other public uses, with revenue derived above the amount needed for maintenance to be paid into the sanitary district bond fund, or if no bonds are outstanding, to revert to its general fund.
        (12) Take charge of all real property, belonging to the municipality and under the control of the works board, suitably located for sewage works if the board demands the works board, subject to contracts, to relinquish and transfer control of real and personal property used by the works board for the collection and removal of garbage and ashes. The transfer of personal property must be made by resolution adopted by the works board describing the property, with a copy of the resolution to be delivered to the board and made a matter of record in the minutes of the proceedings of the board.
        (13) Collect and remove, or contract for the collection and removal of, all garbage, ashes, dead animals, refuse, and wastes from domestic premises, and construct or have constructed stations, including barns, garages, sheds, blacksmith shops, dumps, incinerators, and all other useful or necessary improvements for this purpose. This includes the power to collect and remove soil and other sewage in areas not provided with

sewers, and then to discharge or dispose of it into sewage works.
        (14) Enter into contracts in the name of the municipality, with the approval of the executive as provided by law. However, in the case of a district described in section 3(b)(2) of this chapter, the board may enter into contracts in the name of:
            (A) a municipality in the district, with the approval of the executive of the municipality; or
            (B) the district, with the approval of the board.
        (15) Employ and pay for all engineering, architectural, legal, and other professional services needed in carrying out this chapter, including determining the number, prescribing the duties, and fixing the compensation for all its engineers, chemists, attorneys, bacteriologists, surveyors, inspectors, clerks, stenographers, laborers, supervisors, and other employees as provided by law for other executive departments of the municipality.
        (16) Adopt resolutions, rules, and bylaws that are necessary to carry out this chapter, including repealing or amending them consistent with this chapter.
        (17) Prepare a schedule of reasonable service fees and collect them from persons who own, lease, or possess or control as tenants or as agents lots or lands located outside the boundaries of the district if the lots or lands are benefited by connection into the sanitary sewer system of the district as described in this chapter, with the proceeds from sewage connections and treatment service credited to the general fund of the district for general use and maintenance purposes. The fees may be fixed, repealed, or amended, or the service discontinued, by the board at its discretion.
        (18) Sue or be sued in the name of the municipality, with payment for obligations and of a judgment against the municipality in an action to be made solely from funds of the department and its district that may be available for this purpose. In the case of a district described in section 3(b)(2) of this chapter, the board may sue or be sued in the name of any municipality in the district or in the name of the district. If a judgment is entered against a municipality in the district, payment of obligations and the judgment shall be made solely from available funds of the department or the district.
        (19) Pay for services rendered or for any other obligations incurred by the board while executing its powers, or pay any judgments, including interest and costs, by issuing and selling the bonds of the district, or obtaining temporary loans or levying

taxes as authorized by this or other statutes for any other purpose.
        (20) Lease, rent, purchase, and hold real or personal property more than five (5) miles outside the boundaries of the district if the property is needed:
            (A) to store sludge;
            (B) to convert sludge into marketable fertilizer; or
            (C) by the district to conduct activities that are related to activities described in clause (A) or (B).

SOURCE: ; (11)IN1301.1.6. -->     SECTION 6. An emergency is declared for this act.