Be it enacted by the General Assembly of the State of Indiana:
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.
SECTION 3. IC 23-14-75-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. This chapter
applies to 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.
SECTION 4. IC 23-14-75-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2. If land has not
been appropriated or set apart by the owners by platting for a public
cemetery and it is necessary to purchase real estate for the 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.
SECTION 5. IC 32-24-1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3. (a) Any person
that may exercise the power of eminent domain for any public use
under any statute may exercise the power only in the manner provided
in this article, except as otherwise provided by law.
(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.
SECTION 6. IC 32-24-1-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 5. (a) As a
condition precedent to filing a complaint in condemnation, and except
for an action brought under IC 8-1-13-19 (repealed), a condemnor may
enter upon the property as provided in this chapter and must, at least
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:
(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:
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, _____________
(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.
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:
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.
SECTION 10. IC 32-24-1-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 8. (a) A defendant
may object to the proceedings:
(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
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:
(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.
SECTION 11. IC 32-24-1-12 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 12. (a) Not later
than 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).
SECTION 12. IC 32-24-1-14 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 14. (a) Except as
provided in subsection (b), the plaintiff 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 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,
including reasonable attorney's fees, in an amount not to exceed two
thousand five hundred dollars ($2,500). the lesser of:
(1) twenty-five thousand dollars ($25,000); or
(2) the fair market value of the defendant's property or
easement as determined under this chapter.
SECTION 13. IC 32-24-1-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 15. (a) If the person
seeking to take property under this article fails:
(1) to pay the assessed damages and, if applicable, the attorney's
fees payable under 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, if applicable, attorney's fees
payable under 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, if applicable, attorney's fees
payable under 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, if applicable, attorney's fees
payable under 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
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.
SECTION 14. IC 32-24-2-17 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 17. If applicable, 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.
SECTION 15. IC 32-24-3-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 4. (a) After the
appraisers file their report, any of the defendants may, within a
reasonable time fixed by the court, file exceptions to the report,
alleging that the appraisement of the property, as made by the
appraisers, is not the true cash value of the property. If exceptions are
filed, a trial on the exceptions shall be held by the court or before a
jury, if asked by either party.
(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, if applicable, 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.
SECTION 16. IC 32-24-4-1 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) 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).
(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.
SECTION 17. IC 32-24-4.5 IS ADDED TO THE INDIANA CODE
AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]:
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 thirty (30) years after the
acquisition of the real property.
Sec. 2. As used in this chapter, "condemnor" means a person
authorized to exercise the power of eminent domain.
Sec. 3. As used in this chapter, "parcel of real property" means
real property that:
(1) is under common ownership; and
(2) a condemnor is seeking to acquire.
Sec. 4. As used in this chapter, "private person" means a person
other than a public agency.
Sec. 5. (a) 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.
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 mediation occurs as follows:
(A) The court shall appoint a mediator not later than ten (10)
days after the request for mediation is filed.
(B) The condemnor shall engage in good faith mediation with
the owner, including the consideration of a reasonable
alternative to the exercise of eminent domain.
(C) The mediation must be concluded not later than ninety
(90) days after the appointment of the mediator.
(D) The condemnor shall pay the costs of the mediator.
A determination concerning whether a condition described in this
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.
Sec. 8. 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 determined under
IC 32-24-1 and any 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 determined under
IC 32-24-1 and any 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 determined under
IC 32-24-1 and any 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.
Sec. 9. (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.
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 only if the county
fiscal body has determined that the nonprofit organization meets
the criteria established under subsection (f).
(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.
SECTION 22. An emergency is declared for this act.
Date: