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Indiana Code Title 36. Local Government § 36-4-3-5.2

Current as of January 02, 2024 | Updated by Findlaw Staff

Sec. 5.2. (a) As used in this section, “homeowners association” means a corporation that satisfies all of the following:

(1) The corporation is exempt from federal income taxation under 26 U.S.C. 528.

(2) The control and management of the corporation is vested in a board of directors.

(3) The corporation is organized and operated exclusively for the benefit of two (2) or more persons who each own:

(A) a dwelling in fee simple;  or

(B) a commercial building in fee simple;

within the residential development.

(4) The purpose of the corporation is to:

(A) own, maintain, and operate common areas and facilities;

(B) administer and enforce covenants and restrictions on property;  and

(C) collect and distribute assessments on property;

located within the residential development.

(5) The corporation acts in accordance with the articles, bylaws, or other documents governing the corporation to:

(A) adopt and enforce rules and regulations necessary for the enjoyment of common areas, recreation facilities, and other amenities located within the residential development;  and

(B) exercise the corporation's power to:

(i) levy assessments on property within the residential development;  and

(ii) collect assessments on property located within the residential development by enforcing the corporation's lien and foreclosure rights.

(b) As used in this section, “municipality” means:

(1) a third class city;  or

(2) a town having a population of more than thirty thousand (30,000) located in a county having a population of more than one hundred seventy-four thousand (174,000) and less than one hundred eighty thousand (180,000).

(c) As used in this section, “residential development” means a parcel of land that is subdivided or will be subdivided upon collection of the annexation into:

(1) lots, parcels, tracts, units, or interests that:

(A) include an existing Class 2 structure (as defined in IC 22-12-1-5);  or

(B) are designated for the construction of a Class 2 structure;

each of which is encumbered by substantively identical restrictive covenants concerning one (1) or more servient estates located within the boundaries of the original undivided parcel, or other governing document of record;

(2) lots, parcels, tracts, units, or interests that:

(A) include an existing Class 1 structure (as defined in IC 22-12-1-4);  or

(B) are designated for the construction of a Class 1 structure;  and

(3) a common area.

(d) In addition to annexing territory under section 3, 4, 5, or 5.1 of this chapter, a third class city may annex a residential development and a public highway right-of-way that connects the residential development to the corporate limits of the third class city.  A town described in subsection (b)(2) may annex a residential development.  An annexation by a third class city or a town under this section must satisfy the following:

(1) This subdivision applies only to an annexation by a municipality.  The residential development is governed by a homeowners association.

(2) The residential development has at least any combination of:

(A) three hundred (300) proposed or existing, or both, single family lots within the proposed or existing residential developments, in the case of an annexation by a third class city;  or

(B) five hundred (500) proposed or existing, or both, single family lots within the proposed or existing residential developments, in the case of an annexation by a town described in subsection (b)(2).

(3) This subdivision applies only to an annexation by a municipality.  The residential development is located in its entirety not more than four and five-tenths (4.5) miles outside the municipality's corporate boundaries.

(4) This subdivision applies only to an annexation by a third class city.  The residential development dwellings are or will be upon construction connected to the third class city's sewer or water service.

(5) This subdivision applies only to an annexation by a municipality.  The residential development includes a commercial area containing or proposed to contain buildings intended to be used and operated for commercial purposes.

(6) This subdivision applies only to an annexation by a third class city.  The residential development is adjacent to the public highway right-of-way.

(7) This subdivision applies only to an annexation by a third class city.  The public highway that connects the residential development to the corporate limits of the city is part of the state highway system (as defined in IC 8-23-1-40).

(8) This subdivision applies only to an annexation by a third class city.  The city's annexation territory includes only the public highway right-of-way and the residential development.

(9) The aggregate external boundary of the annexation territory that coincides with the boundary of the third class city is greater than zero (0).

(10) This subdivision applies only to an annexation by a town described in subsection (b)(2).  An existing sewer line extends from the residential development to the corporate limits of the town.  The residential development is or will be upon construction connected to the town's sewer and water service.

(11) This subdivision applies only to an annexation by a town described in subsection (b)(2).  The cost of construction of the residential development is at least five hundred million dollars ($500,000,000).

(12) The aggregate external boundary of the annexation territory that coincides with the boundary of the town described in subsection (b)(2) is zero (0).

(e) Unless the articles, bylaws, or other governing documents of the homeowners association expressly provide otherwise, the board of directors of the homeowners association may file a petition with the legislative body of the municipality requesting the municipality to annex all property within the residential development.  The annexation may proceed only if the municipality adopts a resolution approving the initiation of the annexation process not more than sixty (60) days after the petition is filed.  If the municipality does not adopt a resolution within the sixty (60) day period, the petition is void.

(f) If the legislative body of the municipality adopts a resolution approving initiation of the annexation, the municipality shall prepare a written preliminary fiscal plan that must be made available to the public at each of the outreach program meetings under section 1.7 of this chapter.

(g) Upon completion of the outreach program meetings and before mailing the notification to landowners under section 2.2 of this chapter, the legislative body of the municipality shall adopt a written fiscal plan by resolution that incorporates any revisions to the preliminary fiscal plan.

(h) The municipality shall hold a public hearing not earlier than thirty (30) days after the date the annexation ordinance is introduced.  All interested parties must have the opportunity to testify as to the proposed annexation.  Notice of the hearing shall be:

(1) published in accordance with IC 5-3-1 except that the notice shall be published at least thirty (30) days before the hearing;  and

(2) mailed as set forth in section 2.2 of this chapter.

A municipality may adopt an ordinance not earlier than thirty (30) days or not later than sixty (60) days after the legislative body of the municipality has held the public hearing under this subsection.

(i) A landowner may file a remonstrance against the annexation as provided in section 11 of this chapter.

(j) Territory annexed under this section may not be considered a part of the third class city for purposes of annexing additional territory under section 3 or 4 of this chapter.  However, territory annexed under this chapter shall be considered a part of the third class city for purposes of annexing additional territory under section 5 or 5.1 of this chapter.

(k) For purposes of an annexation by a third class city under this section:

(1) section 1.5 of this chapter does not apply;  and

(2) the landowner of the public highway right-of-way that is part of the state highway system (as defined in IC 8-23-1-40) is considered to be the state of Indiana.

(l) The redevelopment commission of a town described in subsection (b)(2) may only enact a housing tax increment financing district in Liberty Township in Hendricks County if the housing tax increment financing district is approved by a resolution passed by the Mill Creek School Corporation.

(m) The following apply only to an annexation by a town described in subsection (b)(2):

(1) Any territory that is annexed under this section may not be considered a part of the town for purposes of annexing additional territory under section 3 or 4 of this chapter.  However, any part of the unincorporated area (including any property occupied by the sewer line under subsection (d)(10)) that:

(A) adjoins the boundaries of the annexation territory;  and

(B) extends one-half ( 1/2 ) mile from the boundaries of the annexation territory;

may only be annexed by the town if the annexation is under section 5.1 of this chapter.

(2) Any part of the unincorporated area (including any property occupied by the sewer line under subsection (d)(10)) that extends:

(A) outside the one-half ( 1/2 ) mile area described in subdivision (1);  and

(B) to the corporate limits of the town;

is not a part of the annexation territory or the town for purposes of annexing additional territory under this chapter.

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Cite this article: FindLaw.com - Indiana Code Title 36. Local Government § 36-4-3-5.2 - last updated January 02, 2024 | https://codes.findlaw.com/in/title-36-local-government/in-code-sect-36-4-3-5-2/

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