FISCAL STUDIES: LEGAL BASIS John R. Molitor Attorney

FISCAL FISCAL STUDIES: STUDIES: LEGAL BASISLEGAL BASIS

John R. MolitorJohn R. MolitorAttorneyAttorney

22

Statutory Statutory AuthorityAuthorityGeneral Powers General Powers

A unit may plan for and A unit may plan for and regulate the use, regulate the use, improvement, and improvement, and maintenance of real maintenance of real property…. property…. IC 36-7-2-2.IC 36-7-2-2.

33

Statutory Statutory AuthorityAuthorityRulemaking Power Rulemaking Power

Each plan commission shall Each plan commission shall … make rules for … the … make rules for … the administration of the affairs of the administration of the affairs of the commission [or] planning commission [or] planning department …. department …. IC 36-7-4-401(a)IC 36-7-4-401(a)(1).(1).

44

Statutory Statutory AuthorityAuthorityFee-Assessment Power Fee-Assessment Power

The plan commission may The plan commission may establish a schedule of reasonable establish a schedule of reasonable fees to defray the administrative fees to defray the administrative costs connected with processing costs connected with processing and hearing … appeals and and hearing … appeals and petitions … and other official petitions … and other official actions …. actions …. IC 36-7-4-411.IC 36-7-4-411.

55

Statutory Statutory AuthorityAuthorityFee-Assessment PowerFee-Assessment Power

The plan commission shall The plan commission shall establish a uniform schedule of establish a uniform schedule of fees proportioned to the cost of fees proportioned to the cost of checking and verifying the checking and verifying the proposed plats. proposed plats. IC 36-7-4-704.IC 36-7-4-704.

66

Statutory Statutory AuthorityAuthorityHome Rule Principle Home Rule Principle

A unit … has all other A unit … has all other powers necessary or desirable powers necessary or desirable in the conduct of its affairs.in the conduct of its affairs. IC IC 36-1-3-4(b)(2).36-1-3-4(b)(2).

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Statutory Statutory AuthorityAuthorityHome Rule Principle Home Rule Principle

[A] unit may exercise any [A] unit may exercise any power … to the extent … not power … to the extent … not expressly denied by the expressly denied by the Indiana Constitution or another Indiana Constitution or another statute….statute…. IC 36-1-3-5(a)(1). IC 36-1-3-5(a)(1).

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Statutory Statutory AuthorityAuthorityHow to Exercise How to Exercise

If there is no constitutional If there is no constitutional or statutory provision requiring or statutory provision requiring a specific manner for exercising a specific manner for exercising a power, [a unit may] adopt an a power, [a unit may] adopt an ordinance prescribing a specific ordinance prescribing a specific manner…. manner…. IC 36-1-3-6(b)(1).IC 36-1-3-6(b)(1).

99

Statutory Statutory AuthorityAuthorityLimit re License Fees Limit re License Fees

[A] unit does not have … [A] unit does not have … power to impose a license fee power to impose a license fee greater than that reasonably greater than that reasonably related to the administrative related to the administrative cost of exercising a regulatory cost of exercising a regulatory power. power. IC 36-1-3-8(a)(5).IC 36-1-3-8(a)(5).

1010

Statutory Statutory AuthorityAuthorityLimit re Impact Fees Limit re Impact Fees

An ordinance adopted An ordinance adopted under this section is the under this section is the exclusive means for a unit to exclusive means for a unit to impose an impact fee [to pay impose an impact fee [to pay for infrastructure]. for infrastructure]. IC 36-7-4-IC 36-7-4-1311.1311.

1111

Property RightsProperty Rights

Limit on Takings Limit on Takings … … nor shall private nor shall private

property be taken for public property be taken for public use, without just use, without just compensation.compensation. U.S. U.S. Constitution, Fifth Constitution, Fifth Amendment.Amendment.

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Limit on TakingsLimit on TakingsNo person's property No person's property

shall be taken by law, shall be taken by law, without just compensationwithout just compensation …. Indiana Constitution, …. Indiana Constitution, Art. 1, Sec. 21.Art. 1, Sec. 21.

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Limit on TakingsLimit on TakingsNo person's property shall be No person's property shall be

taken by law, without just taken by law, without just compensation compensation nor, except in case nor, except in case of the State, without such of the State, without such compensation first assessed and compensation first assessed and tenderedtendered. . Indiana Constitution, Art. Indiana Constitution, Art. 1, Sec. 21.1, Sec. 21.

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Rule re Nonconformity:Rule re Nonconformity:ADVISORY. A structure may ADVISORY. A structure may

not be located and [a] permit for a not be located and [a] permit for a structure … may not be issued structure … may not be issued unless the structure and its unless the structure and its location conform to the … zoning location conform to the … zoning ordinance.ordinance. IC 36-7-4-801(a). IC 36-7-4-801(a).

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Rule re Rule re Nonconformity:Nonconformity: AREA-AREA-METRO. … a structure may not be METRO. … a structure may not be located and a permit may not be located and a permit may not be issued unless the use, character, and issued unless the use, character, and location of the structure is in location of the structure is in conformity with the applicable conformity with the applicable ordinance. ordinance. IC 36-7-4-801(b).IC 36-7-4-801(b).

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Property RightsProperty RightsTaking of an Illegal, Taking of an Illegal, Nonconforming Nonconforming Structure:Structure:

[No] compensation … may be [No] compensation … may be awarded for the taking of … any awarded for the taking of … any structure erected in violation of … structure erected in violation of … an ordinance. an ordinance. IC 36-7-4-1017.IC 36-7-4-1017.

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New Rule re New Rule re “Complete Applications”: “Complete Applications”:

Development applications Development applications are governed for at least 3 years are governed for at least 3 years (but not more than 7 years) by (but not more than 7 years) by existing laws. See IC 36-7-4-existing laws. See IC 36-7-4-1109(c).1109(c).

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Property RightsProperty RightsNew Rule re New Rule re Granted “Approvals”: Granted “Approvals”:

Development rights are Development rights are governed for at least 3 years governed for at least 3 years (but not more than 7 years) (but not more than 7 years) by existing laws. See IC 36-7-by existing laws. See IC 36-7-4-1109(e).4-1109(e).

1919

Property RightsProperty Rights New Rule re Existing Signs:New Rule re Existing Signs:

[Government] may not [Government] may not require [removal of a legal sign] require [removal of a legal sign] as a condition of issuing [a permit as a condition of issuing [a permit or land use order] unless the or land use order] unless the owner of the sign is compensated owner of the sign is compensated … or has waived the right …. … or has waived the right …. IC IC 22-13-2-1.5; IC 36-7-2-5.5.22-13-2-1.5; IC 36-7-2-5.5.

2020

Property RightsProperty RightsRule re Existing Rule re Existing Agricultural Uses:Agricultural Uses:

[Government] may not … [Government] may not … terminate an agricultural terminate an agricultural nonconforming use if the … nonconforming use if the … use has been maintained for use has been maintained for at least any 3 year period in a at least any 3 year period in a 5 year period.5 year period. IC 36-7-4-616. IC 36-7-4-616.

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Burden of Proof:Burden of Proof:[The] party alleging the [The] party alleging the

existence of a existence of a nonconforming use … has nonconforming use … has the burden of proof on that the burden of proof on that issue…. issue…. IC 36-7-4-1019.IC 36-7-4-1019.

FISCAL FISCAL STUDIES: STUDIES: LEGAL BASISLEGAL BASISGood night, everybody!Good night, everybody!

John R. MolitorJohn R. Molitor

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FISCAL STUDIES: LEGAL BASIS John R. Molitor Attorney