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Chapter 1 INCORPORATION; DISSOLUTION Indiana code section 36-5-1-1





Indiana Code - Article 5: GOVERNMENT OF TOWNS
Chapter 1 INCORPORATION; DISSOLUTION
Chapter 1.1 DISSOLUTION OF SMALL TOWNS
Chapter 1.2 CHANGE OF NAME OF A SMALL TOWN
Chapter 2 TOWN LEGISLATIVE BODY AND EXECUTIVE
Chapter 3 TOWN BUDGET PROCEDURES AND COMPENSATION OF OFFICERS AND EMPLOYEES
Chapter 4 MISCELLANEOUS TOWN FISCAL AND ADMINISTRATIVE PROVISIONS
Chapter 5 TOWN MANAGER
Chapter 6 TOWN CLERK-TREASURER
Chapter 7 TOWN MARSHAL

This chapter applies to all towns except an included town (as defined in IC 36-3-1-7). As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.5-1989, SEC.105. (a) Proceedings to incorporate a town may be instituted by filing a petition in quadruplicate with the executive of each county in which a part of the territory sought to be incorporated is located. The petition must be signed by at least fifty (50) owners of land in the territory and must state that: (1) the territory is used or will, in the reasonably foreseeable future, be used generally for commercial, industrial, residential, or similar purposes; (2) the territory is reasonably compact and contiguous; (3) there is enough undeveloped land in the territory to permit reasonable growth of the town; and (4) incorporation is in the best interests of the citizens of the territory. (b) The signatures of the petitioners must be verified, and the verification must include a statement that the petitioners are owners of land in the territory sought to be incorporated. (c) In determining the number of petitioners, not more than one (1) person having an interest in a single parcel of land may be counted, and a person owning more than one (1) parcel of land in the area may be counted only once. As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.195-1984, SEC.1; P.L.86-1999, SEC.1. A petition for incorporation must be accompanied by the following items, to be supplied at the expense of the petitioners: (1) A survey, certified by a surveyor registered under IC 25-21.5, showing the boundaries of and quantity of land contained in the territory sought to be incorporated. (2) An enumeration of the territory's residents and landowners and their mailing addresses, completed not more than thirty (30) days before the time of filing of the petition and verified by the persons supplying it. (3) A statement of the assessed valuation of all real property within the territory, certified by the township assessor of the township in which the territory is located, or the county assessor if there is no township assessor for the township. (4) A statement of the services to be provided to the residents of the proposed town and the approximate times at which they are to be established. (5) A statement of the estimated cost of the services to be provided and the proposed tax rate for the town. (6) The name to be given to the proposed town. As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.241-1999, SEC.3; P.L.219-2007, SEC.115; P.L.146-2008, SEC.707. (a) On receipt of a petition for incorporation, the county executive shall examine it to see that it meets the requirements of sections 2 and 3 of this chapter. If the petition is in order, the executive shall mark it with the date of filing and immediately forward one (1) copy to the plan commission, if any, having jurisdiction. (b) The commission shall investigate the proposed incorporation and report their recommendations of approval or disapproval to the county executive at least ten (10) days before the hearing required by section 5 of this chapter. In making their investigations, they may use the services of any state or local government agency, and in making their report and recommendations, they shall be guided by the requirements for incorporation set out in section 8 of this chapter. As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.24-1995, SEC.25. The county executive shall hold a public hearing on a petition for incorporation not less than sixty (60) nor more than ninety (90) days after the date of the filing of the petition, and shall require the petitioners to send notice of the hearing by certified mail to: (1) the residents and landowners of the territory as listed in the petition; (2) the legislative body of each municipality having any corporate boundary within three (3) miles of the perimeter of the proposed new town; (3) the executive of any other county in which a part of the proposed new town is located; and (4) the executive of a township in which all or a part of the proposed new town is located. As added by Acts 1980, P.L.212, SEC.4. IC 36-5-1-6 Parties entitled to be heard; remonstrance; dismissal of petition Sec. 6. The recipients of the notice required by section 5 of this chapter are parties to and are entitled to be heard at the public hearing. The petition for incorporation shall be dismissed if at any time during the incorporation proceedings, including an appeal, the county executive or a court hearing an appeal is presented with a verified remonstrance against incorporation, signed by at least: (1) fifty-one percent (51%) of the owners of a fee simple interest in real property in the affected territory; or (2) the owners of seventy-five percent (75%), in assessed valuation, of the real property in the affected territory. The executive or court may determine the validity of the remonstrance by submitting it to the county auditor for verification. As added by Acts 1980, P.L.212, SEC.4. (a) The county executive must obtain the consent by ordinance of the legislative body of a consolidated city before incorporating a town if any part of the proposed town is within four (4) miles of the corporate boundaries of the city. (b) The county executive must obtain the consent by ordinance of the legislative body of a second or third class city before incorporating a town if any part of the proposed town is within three (3) miles of the corporate boundaries of the city. (c) Subsection (b) does not apply to a county having a population of more than four hundred thousand (400,000) but less than seven hundred thousand (700,000). As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1982, P.L.1, SEC.58; P.L.195-1984, SEC.2; P.L.5-1988, SEC.212; P.L.12-1992, SEC.161. 1. The executive of a county having a population of more than fifty-five thousand (55,000) but less than sixty-five thousand (65,000) is exempt from: (1) the requirements of section 7(a) of this chapter; and (2) the requirements of section 7(b) of this chapter if the second or third class city is within a county containing a consolidated city. As added by Acts 1982, P.L.210, SEC.1. Amended by P.L.12-1992, SEC.162; P.L.170-2002, SEC.145. The county executive may approve a petition for incorporation only if it finds all of the following: (1) That the proposed town is used or will, in the reasonably foreseeable future, be used generally for commercial, industrial, residential, or similar purposes. (2) That the proposed town is reasonably compact and contiguous. (3) That the proposed town includes enough territory to allow for reasonable growth in the foreseeable future. (4) That a substantial majority of the property owners in the proposed town have agreed that at least six (6) of the following municipal services should be provided on an adequate basis: (A) Police protection. (B) Fire protection. (C) Street construction, maintenance, and lighting. (D) Sanitary sewers. (E) Storm sewers. (F) Health protection. (G) Parks and recreation. (H) Schools and education. (I) Planning, zoning, and subdivision control. (J) One (1) or more utility services. (K) Stream pollution control or water conservation. (5) That the proposed town could finance the proposed municipal services with a reasonable tax rate, using the current assessed valuation of properties as a basis for calculation. (6) That incorporation is in the best interest of the territory involved. This finding must include a consideration of: (A) the expected growth and governmental needs of the area surrounding the proposed town; (B) the extent to which another unit can more adequately and economically provide essential services and functions; and (C) the extent to which the incorporators are willing to enter into agreements under IC 36-1-7 with the largest neighboring municipality, if that municipality has proposed such agreements. As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.195-1984, SEC.3. A petition for incorporation that is denied may not be resubmitted within one (1) year after the date of final denial. As added by Acts 1980, P.L.212, SEC.4. (Repealed by Acts 1980, P.L.2, SEC.20.) 1. (a) Except as provided in subsection (g), if the county executive makes the findings required by section 8 of this chapter, it may adopt an ordinance incorporating the town. The ordinance must: (1) provide that: (A) all members of the town legislative body are to be elected at large (if the town would have a population of less than three thousand five hundred (3,500); or (B) divide the town into not less than three (3) nor more than seven (7) districts; and (2) direct the county election board to conduct an election in the town on the date of the next general or municipal election to be held in any precincts in the county. An election conducted under this section must comply with IC 3 concerning town elections. If, on the date that an ordinance was adopted under this section, absentee ballots for a general or municipal election have been delivered under IC 3-11-4-15 for voters within a precinct in the town, the election must be conducted on the date of the next general or municipal election held in any precincts in the county after the election for which absentee balloting is being conducted. However, a primary election may not be conducted before an election conducted under this section, regardless of the population of the town. (b) Districts established by an ordinance adopted under this section must comply with IC 3-11-1.5. (c) If any territory in the town is not included in one (1) of the districts established under this section, the territory is included in the district that: (1) is contiguous to that territory; and (2) contains the least population of all districts contiguous to that territory. (d) If any territory in the town is included in more than one (1) of the districts established under this section, the territory is included in the district that: (1) is one (1) of the districts in which the territory is described in the ordinance adopted under this section; (2) is contiguous to that territory; and (3) contains the least population of all districts contiguous to that territory. (e) Except as provided in subsection (f), an ordinance adopted under this section becomes effective when filed with: (1) the office of the secretary of state; and (2) the circuit court clerk of each county in which the town is located. (f) An ordinance incorporating a town under this section may not take effect during the year preceding a year in which a federal decennial census is conducted. An ordinance under this section that would otherwise take effect during the year preceding a year in which a federal decennial census is conducted takes effect January 2 of the year in which a federal decennial census is conducted. (g) Proceedings to incorporate a town across county boundaries must have the approval of the county executive of each county that contains a part of the proposed town. Each county that contains a part of the proposed town must adopt identical ordinances providing for the incorporation of the town. As added by Acts 1980, P.L.2, SEC.16. Amended by P.L.5-1983, SEC.12; P.L.5-1986, SEC.54; P.L.13-1988, SEC.19; P.L.5-1989, SEC.106; P.L.7-1990, SEC.61; P.L.3-1993, SEC.268; P.L.3-1997, SEC.457; P.L.86-1999, SEC.2; P.L.123-2000, SEC.5. (a) If the township in which a new town is incorporated is indebted or has outstanding unpaid bonds or other obligations at the time of the incorporation, the town is liable for and shall pay that indebtedness in the same ratio as the assessed valuation of the property in the town bears to the assessed valuation of all property in the township, as shown by the most recent assessment for taxation before the incorporation, unless the assessed property within the town is already liable for the indebtedness. (b) The town shall pay its indebtedness under this section to the township executive. If the indebtedness consists of outstanding unpaid bonds or notes of the township, the payments to the township executive shall be made as the principal or interest on the bonds or notes becomes due. As added by Acts 1980, P.L.212, SEC.4. 5. A locality that: (1) has elected town officers and has governed itself as a town for at least ten (10) years preceding September 1, 1988; or (2) has been incorporated under this chapter after August 31, 1988; is a town for all purposes unless the town has been dissolved under this chapter or IC 36-5-1.1. As added by P.L.1-1989, SEC.69. (a) Proceedings to dissolve a town may be instituted under either this section or IC 36-5-1.1. (b) A proceeding under this section may be instituted to either dissolve the town or change its name. The proceeding is instituted by filing a petition with the town clerk. The petition must be signed by at least the number of the voters of the town required to place a candidate on the ballot under IC 3-8-6-3, must be verified by at least one (1) of the petitioners, and must include the reasons for the dissolution or change of name. (c) A census of all the voters of the town, taken within ten (10) days before the filing of the petition, must be filed with the petition. The person who prepared the census must, by affidavit attached to the census, verify that the census is correct. As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.342-1987, SEC.1; P.L.12-1995, SEC.129. A petition and census filed under section 12 of this chapter must be accompanied by a bond for costs and expenses, payable to and approved by the town legislative body. The petitioners shall pay all costs and expenses incurred under this chapter, including the expenses of an election, if their petition is not successful. As added by Acts 1980, P.L.212, SEC.4. When a petition and census are filed under section 12 of this chapter, the town clerk shall give notice of the filing and of the day of a hearing on the petition and census, in the manner prescribed by IC 5-3-1. As added by Acts 1980, P.L.212, SEC.4. (a) On the date named in the notice given under section 14 of this chapter, the town legislative body shall hear and consider: (1) the petition and census; and (2) all statements presented in favor of or in opposition to granting the petition. The legislative body shall then decide whether there is sufficient cause to submit the question of dissolving the town or changing its name to the voters of the town. (b) A petitioner who wants to withdraw his name from the petition must do so before the legislative body makes its decision. The legislative body may not count names withdrawn from the petition as part of the total required by section 12 of this chapter. As added by Acts 1980, P.L.212, SEC.4. If the town legislative body decides to submit the question of dissolving the town or changing its name to the voters of the town, it shall certify the question to the county election board. The election board shall fix the date of an election for that purpose. The town clerk shall give notice of the election in the manner prescribed by IC 5-3-1. As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1981, P.L.45, SEC.15; P.L.3-1987, SEC.559. (a) An election under section 16 of this chapter shall be held in the town. The voters shall, by ballot, vote on the question submitted to them. The question shall be placed on the ballot in the form prescribed by IC 3-10-9-4 and must state "Shall the town of ___________________ dissolve?" or "Shall the town of _______________ change its name to ______________________?". (b) Within four (4) days after the canvass of the vote by the county election board, the town clerk shall prepare and attest a statement of all the votes cast at the election, to be signed by the members of the county election board and filed with: (1) the clerk of the county in which the greatest percentage of the population of the town is located; and (2) the office of the secretary of state. As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.3-1987, SEC.560; P.L.5-1989, SEC.107; P.L.3-1997, SEC.458; P.L.123-2000, SEC.6. (a) If at least two-thirds (2/3) of the votes cast in an election under section 16 of this chapter are affirmative, and at least four-fifths (4/5) of all the voters listed in the census voted in the election, the dissolution or change of name takes effect in the manner prescribed by this section. (b) A change of name takes effect thirty (30) days after the filing of the statement required by section 17 of this chapter. (c) Except as provided in subsection (d), a dissolution takes effect six (6) months after the filing of the statement required by section 17 of this chapter. The property owned by the town after payment of debts and liabilities shall be disposed of in the manner chosen by a majority of the voters of the town at a special election for that purpose. Dissolution of a town does not affect the validity of a contract to which the town is a party. (d) A dissolution under this chapter may not take effect during the year preceding a year in which a federal decennial census is conducted. A dissolution that would otherwise take effect during the year preceding a year in which a federal decennial census is conducted takes effect January 2 of the year in which a federal decennial census is conducted. As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.5-1989, SEC.108. (a) A person aggrieved by a decision made by the town legislative body under section 15 of this chapter or by the result of an election under section 16 of this chapter may, within thirty (30) days, appeal that decision or result to the circuit court for the county in which the town is located. The appeal is instituted by giving written notice to the town legislative body and filing with the town clerk a bond in the sum of five hundred dollars ($500), with surety approved by the legislative body. The bond must provide that the appeal will be duly prosecuted and that the appellants will pay all costs if the appeal is decided against them. (b) When an appeal is instituted, the town clerk shall file with the clerk of the circuit court a transcript of all proceedings in the case, together with all papers filed in the case. The town legislative body may not take further action in the case until the appeal is heard and determined. (c) An appeal under this section shall be heard by the circuit court without a jury. Change of venue from the judge may be granted, but change of venue from the county may not be granted. As added by Acts 1980, P.L.212, SEC.4. (a) This section does not apply to a town described by IC 36-5-1-11.5. (b) A town subject to this chapter may be dissolved if the county election board of the county in which the greatest percentage of population of the town is located conducts a public hearing and finds that the town has not elected town officers or had a functioning town government during the preceding ten (10) years. (c) The county election board shall certify the board's findings to the county executive, who may adopt an ordinance or (in a county subject to IC 36-2-3.5) issue an order to dissolve the town. As added by P.L.3-1993, SEC.269.