January 5, 2006, read first time and referred to Committee on Judiciary.
other persons to initiate eminent domain proceedings not more than six
years after the department, utility, or other person submits a written
acquisition offer to the property owner. Requires two of the three
appraisers appointed under the eminent domain law to be: (1) licensed
under the law concerning real estate brokers and salespersons; and (2)
residents of Indiana. Extends certain deadlines under the eminent
domain law. Provides that if a condemnor fails to: (1) take possession
of property the condemnor acquired though the use of eminent domain;
and (2) adapt the property for the purpose for which it was acquired;
not later than six years after the payment of the award or judgment for
damages occurs, the condemnor forfeits all rights in the property as if
the procedure to take the property had not begun. Establishes
procedures for using eminent domain to transfer ownership or control
of real property between private persons for uses that are not public
uses, including: (1) limiting the use of eminent domain only to certain
types of property; (2) requiring mediation; (3) requiring that the
acquisition of the property will accomplish more than only increasing
the property tax base of a government entity; (4) requiring the payment
of a premium to acquire certain types of property; (5) requiring the
condemnor to pay the attorney's fees of certain owners; and (6)
requiring the payment of certain other damages, if applicable, including
business losses. Prohibits a state agency or political subdivision from
requiring that a lawfully erected sign be removed or altered as a
condition of issuing a permit, license, variance, or other order
concerning land use development unless the sign owner is compensated
or has waived compensation in writing. Provides that the land owner
may receive litigation expenses and reasonable attorney's fees not to
exceed: (1) $25,000 in a public eminent domain proceeding; or (2)
25% of the cost of the acquisition in a private to private eminent
domain proceeding; if the land owner receives greater compensation at
trial than was offered in the most recent settlement offer. Provides that
the landowner is entitled to reasonable attorney's fees if a proposed
private to private eminent domain proceeding does not meet certain
eligibility requirements. Specifies that certain persons authorized to
exercise eminent domain may only do so to accomplish the essential
delivery of services. Prohibits libraries from exercising eminent
domain unless a specified legislative body in the library district adopts
a resolution specifically approving the use of eminent domain for a
particular purpose. Prohibits a privately owned cemetery from
exercising eminent domain. Establishes a study committee to study
eminent domain issues. Makes other changes and conforming
amendments.
A BILL FOR AN ACT to amend the Indiana Code concerning
property.
thirty (30) days before filing a complaint, make an offer to purchase the
property in the form prescribed in subsection (c). The offer must be
served personally or by certified mail upon:
to be taken; the legal description may be made on a separate sheet and
attached to this document if additional space is required)
(condemnor) is legally entitled to immediate possession of the
(property) (easement). You may, subject to the approval of the
court, make withdrawals from the amount deposited with the court.
Your withdrawal will in no way affect the proceedings of your case
in court, except that, if the final judgment awarded you is less than
the withdrawal you have made from the amount deposited, you will
be required to pay back to the court the amount of the withdrawal
in excess of the amount of the final judgment.
owner(s) of the above described property or interest in property,
hereby accept the offer of $ _______ made by _________
(condemnor) on this _____ day of _______, 20___.
__________________________________
________________________________________________
years after the date the person submitted the written acquisition
offer to the owner.
substantially similar project for at least three (3) years after the
date the six (6) year period described in subsection (b) expires.
the proceedings a copy of the notice, if the post office address of the
owner or owners can be ascertained by inquiry at the office of the
treasurer of the county.
interlocutory order overruling the objections and appointing appraisers
in the manner that appeals are taken from final judgments in civil
actions upon filing with the circuit court clerk a bond:
provided in subsection (b), the plaintiff shall pay the costs of the
proceedings.
brought by any person having an interest in the property sought to be
acquired, or the question of the forfeiture may be raised and determined
by direct allegation in any subsequent proceedings, by any other person
to acquire the property for a public use. In the subsequent proceedings
the person seeking the previous acquisition or the person's proper
representatives, successors, or assigns shall be made parties.
railways, or interurban railways for the use of the public or for the
use of any town or city;
authorized to exercise the power of eminent domain.
section has been met is subject to judicial review in an eminent
domain proceeding concerning the parcel of real property. If a
court determines that an eminent domain proceeding brought
under this chapter is unauthorized because the condemnor did not
meet the conditions described in this section, the court shall order
the condemnor to reimburse the owner for the owner's reasonable
attorney's fees that the court finds were necessary to defend the
action.
that is attributable to the exercise of eminent domain; and
properties in the community.
only if the county fiscal body has determined that the nonprofit
organization meets the criteria established under subsection (f).
Effective: Upon passage; July 1, 2006.
(SENATE SPONSORS _ BRAY, DROZDA, SIPES, LEWIS, LONG)
January 10, 2006, amended, reported _ Do Pass.
January 24, 2006, read second time, amended.
January 25, 2006, reread second time; made special order of business; amended, ordered
engrossed.
January 26, 2006, engrossed. Read third time, passed. Yeas 97, nays 0.
February 1, 2006, read first time and referred to Committee on Corrections, Criminal, and
Civil Matters.
February 16, 2006, amended, reported favorably _ Do Pass.
February 27, 2006, read second time, amended, ordered engrossed.
Digest Continued
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 2005 Regular Session of the General Assembly.
(1) a permit;
(2) a license;
(3) a variance; or
(4) any other order concerning land use or development;
unless the owner of the sign is compensated in accordance with
IC 32-24 or has waived the right to and receipt of damages in
writing.
(1) any number of persons have:
(A) acted together as an association or corporation;
(B) acquired, as an association or corporation, land for
cemetery purposes;
(C) sold and granted to persons the right to bury the dead in
lots located on the land; and
(D) actually managed and controlled the land as a cemetery for
at least thirty (30) years; but
(2) the organization that the persons attempted to establish as a
corporation or cemetery association is defective and incomplete
because of a failure to comply with the formalities required by
law in force at some time since the original parties first assumed
to act as an association or corporation;
the owners of the right to bury the dead on lots in the cemetery and
those who may acquire the right become and continue to be a cemetery
association or corporation from March 14, 1913.
(b) The owners of the right to bury the dead on lots in a cemetery
referred to in subsection (a) have all the rights and powers of a
cemetery association or corporation organized under this article,
IC 23-1, or IC 23-17. including the power of eminent domain under
IC 32-24-1.
the following:
(1) A:
(A) city;
(B) town;
(C) township;
(D) corporation or association; or
(E) another owner;
that owns or controls a public cemetery that has been in existence
for at least thirty (30) years.
(2) A:
(A) city, town, or township; or
(B) corporation or association a city, town or township that:
(1) owns a cemetery that has been in existence for at least thirty
(30) years; or
that (2) desires to own a public cemetery.
(1) the legislative body of the city or town; or
(2) the executive of the township;
(3) the trustees or directors of the corporation or association; or
(4) the other owners;
have has the power of eminent domain to condemn and appropriate the
land for cemetery purposes under proceedings provided by statute.
(b) Before proceeding to condemn, the person:
(1) may enter upon any land to examine and survey the property
sought to be acquired; and
(2) must make an effort to purchase for the use intended the land,
right-of-way, easement, or other interest, in the property.
(c) The effort to purchase under subsection (b)(2) must include
the following:
(1) Establishing a proposed purchase price for the property.
(2) Providing the owner of the property with an appraisal or
other evidence used to establish the proposed purchase price.
(3) Conducting good faith negotiations with the owner of the
property.
(c) (d) If the land or interest in the land, or property or right is
owned by a person who is an incapacitated person (as defined in
IC 29-3-1-7.5) or less than eighteen (18) years of age, the person
seeking to acquire the property may purchase the property from the
guardian of the incapacitated person or person less than eighteen (18)
years of age. If the purchase is approved by the court appointing the
guardian and the approval is written upon the face of the deed, the
conveyance of the property purchased and the deed made and approved
by the court are valid and binding upon the incapacitated person or
persons less than eighteen (18) years of age.
(d) (e) The deed given, when executed instead of condemnation,
conveys only the interest stated in the deed.
(e) (f) If property is taken by proceedings under this article, the
entire fee simple title may be taken and acquired. if the property is
taken for any purpose other than a right-of-way.
(1) the owner of the property sought to be acquired; or
(2) the owner's designated representative.
(b) If the offer cannot be served personally or by certified mail, or
if the owner or the owner's designated representative cannot be found,
notice of the offer shall be given by publication in a newspaper of
general circulation in the county in which the property is located or in
the county where the owner was last known to reside. The notice must
be in the following form:
TO: _________________, _____________________ (owner(s)),
__________________________ (condemnor) needs your property for
a _____________________________________________ (description
of project), and will need to acquire the following from you:
________________________________________________ (general
description of the property to be acquired). We have made you a formal
offer for this property that is now on file in the Clerk's Office in the
________ County Court House. Please pick up the offer. If you do not
respond to this notice or accept the offer by ____ (a date 30 days from
1st date of publication) 20___, we shall file a suit to condemn the
property.
The condemnor must file the offer with the clerk of the circuit court
with a supporting affidavit that diligent search has been made and that
the owner cannot be found. The notice shall be published twice as
follows:
(1) One (1) notice immediately.
(2) A subsequent publication at least seven (7) days and not more
than twenty-one (21) days after the publication under subdivision
(1).
(c) The offer to purchase must be in the following form:
____________ (condemnor) is authorized by Indiana law to obtain
your property or an easement across your property for certain public
purposes. _____________ (condemnor) needs (your property) (an
easement across your property) for a ___________________________
(brief description of the project) and needs to take
__________________ (legal description of the property or easement
It is our opinion that the fair market value of the (property) (easement)
we want to acquire from you is $ ____, and, therefore, _____________
(condemnor) offers you $ _______ for the above described (property)
(easement). You have twenty-five (25) thirty (30) days from this date
to accept or reject this offer. If you accept this offer, you may expect
payment in full within ninety (90) days after signing the documents
accepting this offer and executing the easement, and provided there are
no difficulties in clearing liens or other problems with title to land.
Possession will be required thirty (30) days after you have received
your payment in full.
HERE IS A BRIEF SUMMARY OF YOUR OPTIONS AND
LEGALLY PROTECTED RIGHTS:
1. By law, _____________ (condemnor) is required to make a
good faith effort to purchase (your property) (an easement across
your property).
2. You do not have to accept this offer and __________
(condemnor) is not required to agree to your demands.
3. However, if you do not accept this offer, and we cannot come to
an agreement on the acquisition of (your property) (an easement),
_____________ (condemnor) has the right to file suit to condemn
and acquire the (property) (easement) in the county in which the
property is located.
4. You have the right to seek advice of an attorney, real estate
appraiser, or any other person of your choice on this matter.
5. You may object to the public purpose and necessity of this
project.
6. If _____________ (condemnor) files a suit to condemn and
acquire (your property) (an easement) and the court grants its
request to condemn, the court will then appoint three appraisers
who will make an independent appraisal of the (property)
(easement) to be acquired.
7. If we both agree with the court appraisers' report, then the matter
is settled. However, if either of us disagrees with the appraisers'
report to the court, either of us has the right to ask for a trial to
decide what should be paid to you for the (property) (easement)
condemned.
8. If the court appraisers' report is not accepted by either of us, then
______________ (condemnor) has the legal option of depositing
the amount of the court appraisers' evaluation with the court. And
if such a deposit is made with the court, _____________
9. The trial will decide the full amount of damages you are to
receive. Both of us will be entitled to present legal evidence
supporting our opinions of the fair market value of the property or
easement. The court's decision may be more or less than this offer.
You may employ, at your cost, appraisers and attorneys to
represent you at this time or at any time during the course of the
proceeding described in this notice. (The condemnor may insert
here any other information pertinent to this offer or required by
circumstances or law).
10. If you have any questions concerning this matter you may
contact us at:
____________________________________________________
____________________________________________________
(full name, mailing and street address, and phone of the
condemnor)
This offer was made to the owner(s):
______________ of ________________,
______________ of ________________,
______________ of ________________,
______________ of ________________,
on the _____ day of ______ 20___,
BY:
_________________________
(signature)
_____________________
(printed name and title)
Agent of: ___________________
(condemnor)
If you decide to accept the offer of $ _____ made by
_____________ (condemnor) sign your name below and mail
this form to the address indicated above. An additional copy of
this offer has been provided for your file.
I (We), ______________, ______________, ___________,
STATE OF _____________ )
)SS:
COUNTY OF ___________ )
Subscribed and sworn to before me this ____ day of
__________, 20___.
My Commission Expires: __________
(Signature)
(Printed) NOTARY PUBLIC
(d) If the condemnor has a compelling need to enter upon property
to restore utility or transportation services interrupted by disaster or
unforeseeable events, the provisions of subsections (a), (b), and (c) do
not apply for the purpose of restoration of utility or transportation
services interrupted by the disaster or unforeseeable events. However,
the condemnor shall be responsible to the property owner for all
damages occasioned by the entry, and the condemnor shall immediately
vacate the property entered upon as soon as utility or transportation
services interrupted by the disaster or unforeseeable event have been
restored.
(b) If:
(1) a person that may exercise the power of eminent domain
submits a written acquisition offer to the owner of a parcel of
real estate under section 5 of this chapter; and
(2) the owner rejects the offer;
the person shall file a complaint under this article to acquire the
parcel by the exercise of eminent domain not more than two (2)
(c) If a person that may exercise the power of eminent domain
fails to meet the requirements described in subsection (b)
concerning a parcel of real estate, the person may not initiate an
action under this article to acquire the parcel through the power
of eminent domain for the same project or a substantially similar
project for at least three (3) years after the date the two (2) year
period described in subsection (b) expires.
(1) the Indiana department of transportation when the
department seeks to acquire a parcel of land or a property
right for the construction, reconstruction, improvement,
maintenance, or repair of a:
(A) state highway; or
(B) toll road project or toll bridge; and
(2) any other person that may exercise the power of eminent
domain when the person seeks to acquire a parcel of land or
a property right for the construction, reconstruction,
improvement, maintenance, or repair of a feeder road for an
Indiana department of transportation project described in
subdivision (1) if the construction, reconstruction,
improvement, maintenance, or repair of the feeder road
begins not later than five (5) years from the conclusion of the
project.
(b) If:
(1) the Indiana department of transportation or other person
described in subsection (a)(2) submits a written acquisition
offer to the owner of a parcel of real estate under section 5 of
this chapter; and
(2) the owner rejects the offer;
the department or other person shall file a complaint under this
article to acquire the parcel by the exercise of eminent domain not
more than six (6) years after the date the department or other
person submitted the written acquisition offer to the owner.
(c) If the Indiana department of transportation or other person
fails to meet the requirements described in subsection (b)
concerning a parcel of real estate, the department or other person
may not initiate an action under this article to acquire the parcel
through the power of eminent domain for the same or a
(b) This section applies only to a public utility or pipeline
company.
(c) If:
(1) a public utility or pipeline company submits a written
acquisition offer to the owner of a parcel of real estate under
section 5 of this chapter; and
(2) the owner rejects the offer in writing;
the public utility or pipeline company, to acquire the parcel by the
exercise of eminent domain, must file a complaint under this
article, not more than six (6) years after the date on which the
public utility or pipeline company submitted the written
acquisition offer to the owner.
(d) If a public utility or pipeline company fails to meet the
requirements set forth in subsection (c) concerning a parcel of real
estate, the public utility or pipeline company may not initiate an
action under this article to acquire the parcel through the power
of eminent domain for the same project or a substantially similar
project for at least two (2) years after the date on which the six (6)
year period described in subsection (c) expires.
(1) service for ten (10) days; or
(2) proof of publication for three (3) successive weeks in a weekly
newspaper of general circulation printed and published in the
English language in the county in which the property sought to be
acquired is located.
The last publication of the notice must be five (5) days before the day
set for the hearing.
(b) The clerk of the court in which the proceedings are pending,
upon the first publication of the notice, shall send to the post office
address of each nonresident owner whose property will be affected by
(c) The court, being satisfied of the regularity of the proceedings
and the right of the plaintiff to exercise the power of eminent domain
for the use sought, shall appoint: three (3)
(1) one (1) disinterested freeholders freeholder of the county;
and
(2) two (2) appraisers licensed under IC 25-34.1 who are
residents of Indiana;
to assess the damages, or the benefits and damages, as the case may be,
that the owner or owners severally may sustain, or be entitled to, by
reason of the acquisition. One (1) of the appraisers appointed under
subdivision (2) must reside not more than fifty (50) miles from the
property.
(1) because the court does not have jurisdiction either of the
subject matter or of the person;
(2) because the plaintiff does not have the right to exercise the
power of eminent domain for the use sought; or
(3) for any other reason disclosed in the complaint or set up in the
objections.
(b) Objections under subsection (a) must be:
(1) in writing;
(2) separately stated and numbered; and
(3) filed not later than the first appearance of thirty (30) days
after the date the notice required in section 6 of this chapter
is served on the defendant. However, the court may extend the
period for filing objections by not more than thirty (30) days
upon written motion of the defendant.
(c) The court may not allow pleadings in the cause other than the
complaint, any objections, and the written exceptions provided for in
section 11 of this chapter. However, the court may permit amendments
to the pleadings.
(d) If an objection is sustained, the plaintiff may amend the
complaint or may appeal from the decision in the manner that appeals
are taken from final judgments in civil actions. All the parties shall take
notice and are bound by the judgment in an appeal.
(e) If the objections are overruled, the court shall appoint appraisers
as provided for in this chapter. Any defendant may appeal the
(1) with the penalty that the court fixes;
(2) with sufficient surety;
(3) payable to the plaintiff; and
(4) conditioned for the diligent prosecution of the appeal and for
the payment of the judgment and costs that may be affirmed and
adjudged against the appellants.
The appeal bond must be filed not later than ten (10) days after the
appointment of the appraisers.
(f) All the parties shall take notice of and be bound by the judgment
in the appeal.
(g) The transcript must be filed in the office of the clerk of the
supreme court not later than thirty (30) days after the filing of the
appeal bond. The appeal does not stay proceedings in the cause.
ten (10) forty-five (45) days before a trial involving the issue of
damages, the plaintiff shall, and a defendant may, file and serve on the
other party an offer of settlement. Not more than five (5) days after the
date offer of settlement is served, the party served may respond by
filing and serving upon the other party an acceptance or a counter offer
of settlement. The offer must state that it is made under this section and
specify the amount, exclusive of interest and costs, that the party
serving the offer is willing to accept as just compensation and damages
for the property sought to be acquired. The offer or counter offer
supersedes any other offer previously made under this chapter by the
party.
(b) An offer of settlement is considered rejected unless an
acceptance in writing is filed and served on the party making the offer
before the trial on the issue of the amount of damages begins.
(c) If the offer is rejected, it may not be referred to for any purpose
at the trial but may be considered solely for the purpose of awarding
costs and litigation expenses under section 14 of this chapter.
(d) This section does not limit or restrict the right of a defendant to
payment of any amounts authorized by law in addition to damages for
the property taken from the defendant.
(e) This section does not apply to an action brought under
IC 8-1-13-19 (repealed).
(b) If there is a trial, the additional costs caused by the trial shall be
paid as ordered by the court. However, if there is a trial and the amount
of damages awarded to the defendant by the judgment, exclusive of
interest and costs, is greater than the amount specified in the last offer
of settlement made by the plaintiff under section 12 of this chapter, the
court shall allow the defendant the defendant's litigation expenses in an
amount not to exceed twenty-five thousand dollars ($25,000). two
thousand five hundred dollars ($2,500).
(1) to pay the assessed damages and attorney's fees payable in
accordance with section 14 of this chapter not later than one (1)
year after the appraisers' report is filed, if exceptions are not filed
to the report;
(2) to pay:
(A) the damages assessed and attorney's fees payable in
accordance with section 14 of this chapter if exceptions are
filed to the appraisers' report and the exceptions are not
sustained; or
(B) the damages assessed and attorney's fees payable in
accordance with section 14 of this chapter and costs if
exceptions are filed to the appraisers' report and the exceptions
are sustained;
not later than one (1) year after the entry of the judgment, if an
appeal is not taken from the judgment;
(3) to pay the damages assessed and attorney's fees payable in
accordance with section 14 of this chapter or the judgment
rendered in the trial court not later than one (1) year after final
judgment is entered in the appeal if an appeal is taken from the
judgment of the trial court; or
(4) to take possession of the property and adapt the property for
the purpose for which it was acquired not later than five (5) six
(6) years after the payment of the award or judgment for damages,
except where a fee simple interest in the property is authorized to
be acquired and is acquired;
the person seeking to acquire the property forfeits all rights in the
property as fully and completely as if the procedure to take the property
had not begun.
(b) An action to declare a forfeiture under this section may be
(b) The circuit court clerk shall give notice of filing of the
appraisers' report to all known parties to the action and their attorneys
of record by certified mail.
(c) Upon the trial of the exceptions, the court may revise, correct,
amend, or confirm the appraisement in accordance with the finding of
the court or verdict of the jury.
(d) The court shall apportion the costs accruing in the proceedings
as justice may require. However, a landowner who incurs attorney's
fees through the exercise of eminent domain under this chapter is
entitled to reasonable attorney's fees in accordance with
IC 32-24-1-14.
(e) Changes of venue may be had as in other cases.
(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) construct, maintain or operate turnpikes, toll bridges, canals,
public landings, wharves, ferries, dams, aqueducts, street
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).
(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.
Chapter 4.5. Procedures for Transferring Ownership or Control
of Real Property Between Private Persons
Sec. 1. (a) As used in this section, "public use" means the:
(1) possession, occupation, and enjoyment of a parcel of real
property by the general public or a public agency for the
purpose of providing the general public with fundamental
services, including the construction, maintenance, and
reconstruction of highways, bridges, airports, ports, certified
technology parks, intermodal facilities, and parks;
(2) leasing of a highway, bridge, airport, port, certified
technology park, intermodal facility, or park by a public
agency that retains ownership of the parcel by written lease
with right of forfeiture; or
(3) use of a parcel of real property to create or operate a
public utility, an energy utility (as defined in IC 8-1-2.5-2), or
a pipeline company.
The term does not include the public benefit of economic
development, including an increase in a tax base, tax revenues,
employment, or general economic health.
(b) This chapter applies to a condemnor that exercises the
power of eminent domain to acquire a parcel of real property:
(1) from a private person;
(2) with the intent of ultimately transferring ownership or
control to another private person; and
(3) for a use that is not a public use.
(c) This chapter does not apply twenty (20) years after the
acquisition of the real property.
Sec. 2. As used in this chapter, "condemnor" means a person
Sec. 3. As used in this chapter, "parcel" means the real property
that is under common ownership and that the condemning
authority is seeking to acquire.
Sec. 4. As used in this chapter, "private person" means a person
other than a public agency.
Sec. 5. As used in this chapter, "project area" means the area
designated by the condemnor and the legislative body for the
condemnor for economic development.
Sec. 6. As used in this chapter, "public agency" means:
(1) a state agency (as defined in IC 4-13-1-1);
(2) a unit (as defined in IC 36-1-2-23);
(3) a body corporate and politic created by state statute;
(4) a school corporation (as defined in IC 20-26-2-4); or
(5) another governmental unit or district with eminent
domain powers.
The term does not include a state educational institution (as
defined in IC 20-12-0.5-1).
Sec. 7. As used in this chapter, "relocation costs" mean
relocation expenses payable in accordance with the federal
Uniform Relocation Assistance Act (42 U.S.C. 4601 through 42
U.S.C. 4655).
Sec. 8. Subject to section 11 of this chapter, a condemnor may
acquire a parcel of real property by the exercise of eminent domain
under this chapter only if all the following conditions are met:
(1) At least one (1) of the following conditions exists on the
parcel of real property:
(A) The parcel contains a structure that, because of:
(i) physical condition;
(ii) use; or
(iii) occupancy;
constitutes a public nuisance.
(B) The parcel contains a structure that is unfit for human
habitation or use because the structure:
(i) is dilapidated;
(ii) is unsanitary;
(iii) is unsafe;
(iv) is vermin infested; or
(v) does not contain the facilities or equipment required
by applicable building codes or housing codes.
(C) The parcel contains a structure that is:
(i) a fire hazard; or
(ii) otherwise dangerous to the safety of persons or
property.
(D) The parcel contains a structure that is not fit for its
intended use because:
(i) the utilities;
(ii) the sewerage;
(iii) the plumbing;
(iv) the heating; or
(v) any other similar services or facilities;
have been disconnected, destroyed, removed, or rendered
ineffective.
(E) The parcel:
(i) is located in a substantially developed neighborhood;
(ii) is vacant or unimproved; and
(iii) because of neglect or lack of maintenance, has
become a place for the accumulation of trash, garbage,
or other debris or become infested by rodents or other
vermin, and the neglect or lack of maintenance has not
been corrected by the owner of the parcel within a
reasonable time after the owner receives notice of the
accumulation or infestation.
(F) The parcel and any improvements on the parcel are the
subject of tax delinquencies that exceed the assessed value
of the parcel and its improvements.
(G) The parcel poses a threat to public health or safety
because the parcel contains environmental contamination.
(H) The parcel has been abandoned.
(2) The acquisition of the parcel of real property through the
exercise of eminent domain is expected to accomplish more
than only increasing the property tax base of a government
entity.
(3) If the owner files a request for mediation at the time the
owner files an objection or exception to an eminent domain
proceeding, the court shall appoint a mediator not later than
ten (10) days after the request for mediation is filed.
Mediation must be concluded not later than ninety (90) days
after the appointment of the mediator. A condemnor shall
engage in good faith mediation with the owner, including the
consideration of a reasonable alternative to the exercise of
eminent domain. The condemnor shall pay the costs of the
mediator.
A determination concerning whether a condition described in this
Sec. 9. Notwithstanding IC 32-24-1, a condemnor that acquires
a parcel of real property through the exercise of eminent domain
under this chapter shall compensate the owner of the parcel as
follows:
(1) For agricultural land:
(A) either:
(i) payment to the owner equal to one hundred
twenty-five percent (125%) of the fair market value of
the parcel as determined under IC 32-24-1; or
(ii) upon the request of the owner and if the owner and
condemnor both agree, transfer to the owner of an
ownership interest in agricultural land that is equal in
acreage to the parcel acquired through the exercise of
eminent domain;
(B) payment of any other damages as determined under
IC 32-24-1, including a loss incurred in a trade or business
that is attributable to the exercise of eminent domain; and
(C) payment of the owner's relocation costs, if any.
(2) For a parcel of real property occupied by the owner as a
residence:
(A) payment to the owner equal to one hundred fifty
percent (150%) of the fair market value of the parcel as
determined under IC 32-24-1;
(B) payment of any other damages as determined under
IC 32-24-1, including a loss incurred in a trade or business
that is attributable to the exercise of eminent domain; and
(C) payment of the owner's relocation costs, if any.
(3) For a parcel of real property not described in subdivision
(1) or (2):
(A) payment to the owner equal to one hundred percent
(100%) of the fair market value of the parcel as
determined under IC 32-24-1;
(B) payment of any other damages as determined under
IC 32-24-1, including a loss incurred in a trade or business
(C) payment of the owner's relocation costs, if any.
Sec. 10. (a) Not later than forty-five (45) days before a trial
involving the issue of compensation, the condemnor shall, and an
owner may, file and serve on the other party an offer of settlement.
Not more than five (5) days after the date the offer of settlement is
served, the party served may respond by filing and serving upon
the other party an acceptance or a counter offer of settlement. The
offer must state that it is made under this section and specify the
amount, exclusive of interest and costs, that the party serving the
offer is willing to accept as just compensation and damages for the
property sought to be acquired. The offer or counter offer
supersedes any other offer previously made under this chapter by
the party.
(b) An offer of settlement is considered rejected unless an
acceptance in writing is filed and served on the party making the
offer before the trial on the issue of the amount of damages begins.
(c) If the offer is rejected, it may not be referred to for any
purpose at the trial but may be considered solely for the purpose
of awarding costs and litigation expenses under section 10 of this
chapter.
(d) This section does not limit or restrict the right of an owner
to payment of any amounts authorized by law in addition to
damages for the property taken from the owner.
Sec. 10. (a) Except as provided in subsection (b), the condemnor
shall pay the costs of the proceedings.
(b) If there is a trial, the additional costs caused by the trial shall
be paid as ordered by the court. However, if there is a trial and the
amount of damages awarded to the owner by the judgment,
exclusive of interest and costs, is greater than the amount specified
in the last offer of settlement made by the condemnor under section
9 of this chapter, the court shall require the condemnor to pay the
owner's litigation expenses, including reasonable attorney's fees, in
an amount that does not exceed twenty-five percent (25%) of the
cost of the acquisition.
Sec. 11. (a) Notwithstanding the provisions of section 8, a
condemnor may acquire a parcel of real property by the exercise
of eminent domain under this chapter only if all of the following
conditions are met:
(1) the project area is at least ten (10) acres in size and located
in one (1) county;
(2) the parcel is not occupied by the owner as a residence;
(3) the condemnor or its agents has acquired clear title to
ninety percent (90%) of the project area; and
(4) the legislative body for the condemnor must adopt a
resolution by a two-thirds (2/3) vote authorizing the condemnor to
exercise eminent domain over a particular parcel of land.
(b) A condemnor that acquires a parcel of real property through
the exercise of eminent domain under this section shall compensate
the owner of the parcel as follows:
(1) payment to the owner equal to one hundred twenty five
percent (125%) of the fair market value of the parcel as
determined under I.C. 32-24-1;
(2) payment of any other damages as determined under I.C.
32-24-1, including a loss incurred in a trade or business that is
attributable to the exercise of eminent domain; and
(3) payment of the owner's relocation costs, if any.
(c) The condemnor may not acquire a parcel of real property
through the exercise of eminent domain under this section if the
owner can demonstrate by clear and convincing evidence that the
present location of the parcel of real property is essential to the
viability of the owner's commercial activity and that the payment
or damages and relocation costs cannot adequately compensate the
owner of real property.
(d) The court shall award the payment of reasonable attorney
fees to the owner in accordance with this chapter.
Chapter 7. Procedure for Libraries
Sec. 1. This chapter applies to the exercise of eminent domain by
a library board (as defined in IC 36-12-1-3). Notwithstanding any
other law, a library board may exercise eminent domain only if it
complies with this chapter.
Sec. 2. A library board may exercise eminent domain only if one
(1) of the following legislative bodies adopts a resolution
specifically authorizing the library board to exercise eminent
domain over a particular parcel of land for a specific purpose:
(1) If the library district is located entirely within the
corporate boundaries of a municipality, the legislative body of
the municipality.
(2) If the library district:
(A) is not described by subdivision (1); and
(B) is located entirely within the boundaries of a township;
the legislative body of the township.
(3) If the library district is not described by subdivision (1) or
(2), the legislative body of each county in which the library
district is located.
Sec. 3. The resolution described in section 2 of this chapter must
specifically describe:
(1) the parcel of land that the library board seeks to acquire
by exercising eminent domain;
(2) the purpose for which the parcel of land is to be acquired;
and
(3) why the exercise of eminent domain is necessary to
accomplish the library board's purpose.
(1) a permit;
(2) a license;
(3) a variance; or
(4) any other order concerning land use or development;
unless the owner of the sign is compensated in accordance with
IC 32-24 or has waived the right to and receipt of damages in
writing.
(1) The real property is an unsafe building (as defined in
IC 36-7-9-4) and is subject to an order issued under IC 36-7-9-5.
(2) The owner of the real property has not complied with the order
issued under IC 36-7-9-5.
(3) The real property is not being used as a residence or for a
business enterprise.
meets at least one (1) of the conditions described in
IC 32-24-4.5-7(1).
(4) (2) The real property is capable of being developed or
rehabilitated to provide affordable housing for low or moderate
income families or to provide other development that will benefit
or serve low or moderate income families.
(5) (3) The unsafe condition of the real property has a negative
impact on the use or value of the neighboring properties or other
(b) The commission or the commission's designated hearing
examiner shall conduct a public meeting to determine whether a parcel
of real property has the characteristics set forth in subsection (a). Each
person holding a fee or life estate interest of record in the property must
be given notice by first class mail of the time and date of the hearing at
least ten (10) days before the hearing and is entitled to present evidence
and make arguments at the hearing.
(c) If the commission considers it necessary to acquire real property
under this section, the commission shall adopt a resolution setting out
the commission's determination to exercise that power and directing the
commission's attorney to file a petition in the name of the city on behalf
of the department in the circuit or superior court with jurisdiction in the
county.
(d) Eminent domain proceedings under this section are governed by
IC 32-24.
(e) The commission shall use real property acquired under this
section for one (1) of the following purposes:
(1) Sale in an urban homestead program under IC 36-7-17.
(2) Sale to a family whose income is at or below the county's
median income for families.
(3) Sale or grant to a neighborhood development corporation with
a condition in the granting clause of the deed requiring the
nonprofit development corporation to lease or sell the property to
a family whose income is at or below the county's median income
for families or to cause development that will serve or benefit
families whose income is at or below the unit's median income for
families.
(4) Any other purpose appropriate under this chapter so long as
it will serve or benefit families whose income is at or below the
unit's median income for families.
(f) A neighborhood development corporation or nonprofit
corporation that receives property under this section must agree to
rehabilitate or otherwise develop the property in a manner that is
similar to and consistent with the use of the other properties in the area
served by the corporation.
(1) The real property is an unsafe premises (as defined in
IC 36-7-9) and is subject to an order issued under IC 36-7-9 or a
notice of violation issued by the county's health and hospital
corporation under its powers under IC 16-22-8.
(2) The real property is not being used as a residence or for a
business enterprise.
meets at least one (1) of the conditions described in
IC 32-24-4.5-7(1).
(3) (2) The real property is capable of being developed or
rehabilitated to provide affordable housing for low or moderate
income families or to provide other development that will benefit
or serve low or moderate income families.
(4) (3) The real property suffers from one (1) or more of the
conditions listed in IC 36-7-1-3, resulting in a negative impact on
the use or value of the neighboring properties or other properties
in the community.
(b) The commission or its designated hearing examiner shall
conduct a public meeting to determine whether the conditions set forth
in subsection (a) exist relative to a parcel of real property. Each person
holding a fee or life estate interest of record in the property must be
given notice by first class mail of the time and date of the hearing at
least ten (10) days before the hearing, and is entitled to present
evidence and make arguments at the hearing.
(c) If the commission considers it necessary to acquire real property
under this section, it shall adopt a resolution setting out its
determination to exercise that power and directing its attorney to file
a petition in the name of the city on behalf of the department in the
circuit or superior court in the county.
(d) Eminent domain proceedings under this section are governed by
IC 32-24.
(e) The commission shall use real property acquired under this
section for one (1) of the following purposes:
(1) Sale in an urban homestead program under IC 36-7-17.
(2) Sale to a family whose income is at or below the county's
median income for families.
(3) Sale or grant to a neighborhood development corporation or
other nonprofit corporation, with a condition in the granting
clause of the deed requiring the nonprofit organization to lease or
sell the property to a family whose income is at or below the
county's median income for families or to cause development that
will serve or benefit families whose income is at or below the
county's median income for families. However, a nonprofit
organization is eligible for a sale or grant under this subdivision
(4) Any other purpose appropriate under this chapter so long as
it will serve or benefit families whose income is at or below the
county's median income for families.
(f) The county fiscal body shall establish criteria for determining the
eligibility of neighborhood development corporations and other
nonprofit corporations for sales and grants of real property under
subsection (e)(3). A neighborhood development corporation or other
nonprofit corporation may apply to the county fiscal body for a
determination concerning the corporation's compliance with the criteria
established under this subsection.
(g) A neighborhood development corporation or nonprofit
corporation that receives property under this section must agree to
rehabilitate or otherwise develop the property in a manner that is
similar to and consistent with the use of the other properties in the area
served by the corporation.
(b) There is established the interim study committee on eminent
domain. The committee shall study issues related to the exercise of
eminent domain.
(c) The committee may meet as often as necessary to carry out
its duties under this SECTION.
(d) The committee shall submit a final report of the results of its
study to the legislative council before November 1, 2007.
(e) The affirmative votes of a majority of the voting members
appointed to the committee are required for the committee to take
action on any measure, including final reports.
(f) Except as otherwise specifically provided by this act, the
committee shall operate under the rules of the legislative council.
All funds necessary to carry out this act shall be paid from
appropriations to the legislative council and legislative services
agency.
(g) This SECTION expires November 2, 2007.