Bill Text: IN HB1118 | 2010 | Regular Session | Amended
Bill Title: Nuisance actions by community organizations.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-02-02 - Third reading: defeated; Roll Call 146: Yeas 43, Nays 56 [HB1118 Detail]
Download: Indiana-2010-HB1118-Amended.html
Citations Affected: IC 32-30; IC 36-7.
Synopsis: Nuisance actions by community organizations. Allows a
community organization within whose specific geographic boundaries
a nuisance exists to bring an action under the laws governing: (1)
general nuisance actions, if the community organization does not
interfere with the right of a private individual to bring an action to
abate or enjoin a private nuisance; (2) actions for indecent nuisances;
and (3) actions for drug nuisances; as applicable. Makes the drug
nuisance law consistent with the indecent nuisance law by adding the
attorney general to the list of prosecuting officials that may bring an
action under the drug nuisance law. Defines "nuisance" for purposes of
the unsafe building law. Allows a civil action under the unsafe building
law to be initiated before the final date of an order or an extension of
an order requiring: (1) the completion; or (2) a substantial beginning
toward accomplishing the completion; of the remedial action required
by the order. Allows a community organization to initiate a civil action
under the unsafe building law if the enforcement authority for the
county or municipality has filed a civil action regarding the unsafe
premises. (Current law prohibits a community organization from
initiating a civil action if the enforcement authority has filed an action.)
Provides that a community organization must provide notice of its
intention to file a civil action under the unsafe building law at least 30
days (rather than 60 days under current law) before commencing the
action. Eliminates the requirement that the notice must be given to the
enforcement authority.
Effective: July 1, 2010.
January 5, 2010, read first time and referred to Committee on Courts and Criminal Code.
January 19, 2010, amended, reported _ Do Pass.
January 26, 2010, read second time, amended, ordered engrossed.
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A BILL FOR AN ACT to amend the Indiana Code concerning local
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(1) property is injuriously affected; or
(2) personal enjoyment is lessened;
by the nuisance.
(b) A civil action to abate or enjoin a nuisance may also be brought by:
(1) an attorney representing the county in which a nuisance exists;
(2) the corporation counsel or attorney of any city or town in which a nuisance exists; or
(3) a community organization within whose specific geographic boundaries (as defined in the bylaws or articles of incorporation of the community organization) the nuisance exists.
However, a community organization may not interfere with the right of a private individual to bring an action to abate or enjoin a private nuisance.
(c) A county, city, or town that brings a successful action under this section (or IC 34-1-52-2 or IC 34-19-1-2 before their repeal) to abate or enjoin a nuisance caused by the unlawful dumping of solid waste is entitled to recover reasonable attorney's fees incurred in bringing the action.
(d) A forestry operation that successfully defends an action under this section is entitled to reasonable costs and attorney's fees incurred in defending the action.
(1) the attorney general;
(2) the prosecuting attorney of the circuit in which an indecent nuisance exists;
(3) the corporation counsel or city or town attorney of the city or town (if any) in which an indecent nuisance exists; or
(4) an attorney representing the county in which an indecent nuisance exists.
(1) a prosecuting official;
(2) any resident of the county in which the indecent nuisance exists; or
(3) a community organization within whose specific geographic boundaries (as defined in the bylaws or articles of incorporation of the community organization) the indecent nuisance exists;
may bring an action to abate the indecent nuisance and to perpetually enjoin the maintenance of the indecent nuisance.
(b) If a person
(1) the action is wrongfully brought;
(2) the action is not prosecuted to final judgment;
(3) the action is dismissed;
(4) the action is not maintained; or
(5) it is finally decided that the injunction ought not to have been granted.
The party aggrieved by the issuance of the injunction has recourse against the bond for all damages suffered, including damages to the aggrieved party's property, person, or character and including reasonable attorney's fees incurred in defending the action.
(c) A person described in subsection (a)(2) who institutes an action and executes a bond may recover the bond and reasonable attorney's fees incurred in trying the action if the existence of an indecent nuisance is admitted or established in an action as provided in this chapter.
(d) If a prosecuting official institutes an action under this chapter (or IC 34-1-52.5 or IC 34-19-2 before their repeal) and the existence of an indecent nuisance is admitted or established in the action, the governmental entity that employs the prosecuting official is entitled to all reasonable attorney's fees incurred by the entity in instituting the action. The fees shall be deposited in:
(1) the state general fund, if the action is instituted by the attorney general;
(2) the operating budget of the office of the prosecuting attorney, if the action is instituted by a prosecuting attorney;
(3) the operating budget of the office of the corporation counsel or city or town attorney, if the action is instituted by a corporation counsel or city or town attorney; or
(4) the county general fund, if the action is instituted by an attorney representing the county.
(e) In any action filed under this chapter by a person described in subsection (a)(3), a court may award reasonable attorney's fees, court costs, and other reasonable expenses of litigation to the prevailing party.
applies to an indecent nuisance complaint under this chapter filed by
a private person described in section 7(a)(2) or 7(a)(3) of this
chapter.
(b) The court shall not voluntarily dismiss the complaint unless:
(1) the complainant and the complainant's attorney, if applicable,
file a sworn statement setting forth the reason why the action
should be dismissed; and
(2) the dismissal is approved in writing or in open court by the
prosecuting attorney of the circuit in which the alleged indecent
nuisance is located.
(c) If the judge believes that the action should not be dismissed, the
judge may direct the prosecuting attorney to prosecute the action to
judgment at the expense of the county.
(d) If:
(1) the action is brought by a private person described in section
7(a)(2) or 7(a)(3) of this chapter;
(2) the court finds that there were no reasonable grounds or
probable cause for bringing said action; and
(3) the case is dismissed either:
(A) for the reason described in subdivision (2) before trial; or
(B) for want of prosecution;
the costs may be taxed to the person who brought the case.
(1) The attorney general.
(6) A community organization within whose specific geographic boundaries (as defined in the bylaws or articles of incorporation of the community organization) the nuisance exists.
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 5. (a) Except as
provided in section 6 of this chapter, a person initiating an action
under this chapter to abate a nuisance existing on a property shall, at
least forty-five (45) days before filing the action, provide notice to:
(1) each tenant of the property; and
(2) the owner of record;
that a nuisance exists on the property.
(b) The notice required under this section must specify the
following:
(1) The date and time the nuisance was first discovered.
(2) The location on the property where the nuisance is allegedly
occurring.
(c) The notice must be:
(1) hand delivered; or
(2) sent by certified mail;
to each tenant and the owner of record.
(d) A person initiating an action to abate a nuisance under this
chapter shall:
(1) when notice is provided under this section, produce all
evidence in the person's possession or control of the existence of
the nuisance; and
(2) if requested by the owner, assist the owner in the production
of witness and physical evidence.
"Community organization" means a citizen's group, neighborhood association, neighborhood development corporation, or similar organization that:
(1) has specific geographic boundaries defined in its bylaws or articles of incorporation and contains at least forty (40) households within those boundaries;
(2) is a nonprofit corporation that is representative of at least twenty-five (25) households or twenty percent (20%) of the households in the community, whichever is less;
(3) is operated primarily for the promotion of social welfare and general neighborhood improvement and enhancement;
(4) has been incorporated for at least two (2) years; and
(5) is exempt from taxation under Section 501(c)(3) or 501(c)(4) of the Internal Revenue Code.
"Continuous enforcement order" means an order that:
(1) is issued for compliance or abatement and that remains in full
force and effect on a property without further requirements to
seek additional:
(i) compliance and abatement authority; or
(ii) orders for the same or similar violations;
(2) authorizes specific ongoing compliance and enforcement
activities if a property requires reinspection or additional periodic
abatement;
(3) can be enforced, including assessment of fees and costs,
without the need for additional notice or hearing; and
(4) authorizes the enforcement authority to assess and collect
ongoing costs for continuous enforcement order activities from
any party that is subject to the enforcement authority's order.
"Department" refers to the executive department authorized by
ordinance to administer this chapter. In a consolidated city, this
department is the department of metropolitan development, subject to
IC 36-3-4-23.
"Enforcement authority" refers to the chief administrative officer of
the department, except in a consolidated city. In a consolidated city, the
division of development services is the enforcement authority, subject
to IC 36-3-4-23.
"Hearing authority" refers to a person or persons designated as such
by the executive of a city or county, or by the legislative body of a
town. However, in a consolidated city, the director of the department
or a person designated by the director is the hearing authority. An
employee of the enforcement authority may not be designated as the
hearing authority.
"Known or recorded fee interest, life estate interest, or equitable
interest of a contract purchaser" means any fee interest, life estate
interest, or equitable interest of a contract purchaser held by a person
whose identity and address may be determined from:
(1) an instrument recorded in the recorder's office of the county
where the unsafe premises is located;
(2) written information or actual knowledge received by the
department (or, in the case of a consolidated city, the enforcement
authority); or
(3) a review of department (or, in the case of a consolidated city,
the enforcement authority) records that is sufficient to identify
information that is reasonably ascertainable.
"Known or recorded substantial property interest" means any right
in real property, including a fee interest, a life estate interest, a future
interest, a mortgage interest, or an equitable interest of a contract
purchaser, that:
(1) may be affected in a substantial way by actions authorized by this chapter; and
(2) is held by a person whose identity and address may be determined from:
(A) an instrument recorded in the recorder's office of the county where the unsafe premises is located;
(B) written information or actual knowledge received by the department (or, in the case of a consolidated city, the enforcement authority); or
(C) a review of department (or, in the case of a consolidated city, the enforcement authority) records that is sufficient to identify information that is reasonably ascertainable.
"Nuisance" has the meaning set forth in IC 32-30-6-6.
"Substantial property interest" means any right in real property that may be affected in a substantial way by actions authorized by this chapter, including a fee interest, a life estate interest, a future interest, a mortgage interest, or an equitable interest of a contract purchaser.
(b) A community organization may bring a civil action under section 17 of this chapter in conjunction with any civil action under IC 32-30-6, IC 32-30-7, or IC 32-30-8.
(1) in an impaired structural condition that makes it unsafe to a person or property;
(2) a fire hazard;
(3) a hazard to the public health;
(4) a public nuisance;
(5) dangerous to a person or property because of a violation of a statute or ordinance concerning building condition or maintenance; or
(6) vacant and not maintained in a manner that would allow human habitation, occupancy, or use under the requirements of a statute or an ordinance;
is considered an unsafe building.
(b) For purposes of this chapter:
(1) an unsafe building; and
(2) the tract of real property on which the unsafe building is located;
are considered unsafe premises.
(c) For purposes of this chapter, a tract of real property that does not contain a building or structure, not including land used for production agriculture, is considered an unsafe premises if the tract of real property is:
(1) a fire hazard;
(2) a hazard to public health;
(3) a public nuisance; or
(4) dangerous to a person or property because of a violation of a statute or an ordinance.
(b) Vacant structures often become dilapidated because the structures are not maintained and repaired by the owners or persons in control of the structures.
(c) Vacant structures attract children, become harborage for vermin, serve as temporary abodes for vagrants and criminals, and are likely to be damaged by vandals or set ablaze by arsonists.
(d) Unkept grounds surrounding vacant structures invite dumping of garbage, trash, and other debris.
(e) Many vacant structures are situated on narrow city lots and in close proximity to neighboring structures, thereby increasing the risk of conflagration and spread of insect and rodent infestation.
(f) Vacant, deteriorated structures contribute to blight, cause a decrease in property values, and discourage neighbors from making improvements to properties.
(g) Structures that remain boarded up for an extended period of time also exert a blighting influence and contribute to the decline of the neighborhood by decreasing property values, discouraging persons from moving into the neighborhood, and encouraging persons to move out of the neighborhood.
(h) Vacant structures often continue to deteriorate to the point that demolition of the structure is required, thereby decreasing available housing in a community and further contributing to the decline of the neighborhood.
(i) The blighting influence of vacant, deteriorated structures adversely affects the tax revenues of local government.
(j) The general assembly finds that vacant, deteriorated structures create a serious and substantial problem in urban areas and are
(k) In recognition of the problems created in a community by vacant structures, the general assembly finds that vigorous and disciplined action should be taken to ensure the proper maintenance and repair of vacant structures and encourages local governmental bodies to adopt maintenance and repair standards appropriate for the community in accordance with this chapter and other statutes.
(1) one (1) or more of the kinds of relief authorized by sections 18 through 22 of this chapter; or
(2) any other relief considered appropriate by the court.
(1) specifies:
(A) the nature of the alleged nuisance;
(B) the date the nuisance was first discovered;
(C) the location on the property where the nuisance is allegedly occurring;
(D) the intent of the community organization to bring a civil action under this section; and
(E) the relief sought in the action; and
(2) is provided to:
(A) the owner of record of the premises;
(B) tenants located on the premises; and
(1) against an owner of a known or recorded fee interest, life estate, or equitable interest as a contract purchaser of property; and
(2) during any two (2) year period;
a court may order the owner to pay treble damages based on the costs of the ordered action. The second or subsequent civil judgment may relate to the same property or a different property held by the owner.
