(A) Definitions. For purposes of this section, the following terms shall have the following definitions.
EASEMENT. Any easement granted to and/or possessed by the Town of Clarksville for its sanitary sewer or stormwater systems; or and any platted easements which are to be used for construction or maintenance of any sanitary sewer or stormwater structures or facilities, or to provide access to a sanitary sewer or stormwater structure for maintenance or repair.
EASEMENT ENCROACHMENTS. Any structure, tree, shrub, or other material located within a sanitary sewer or stormwater easement or which obstructs access of authorized personnel to repair or maintain any structures or land within any part of a sanitary sewer or stormwater easement.
REAL PROPERTY OWNER. The owner of record of a parcel of land, which is encumbered by a sanitary sewer or stormwater easement.
(B) Violations of this section.
(1) Except as otherwise herein provided, all real property owners owning, occupying, or controlling any real estate subject to a sanitary sewer or stormwater easement or a platted easement shall maintain the easement free of easement encroachments. The placement or maintenance of any encroachments within the easement shall be a violation of this section.
(2) Any person who is not the real property owner of the land burdened by an easement and who causes damage to any structure operated by the town within an easement for the purposes of its sanitary sewer or stormwater systems, shall reimburse the town the costs to repair the damage caused by the person.
(C) Pre-existing encroachments. For any encroachments existing at the time of the adoption of this section, the town will proceed as follows.
(1) If the town has to remove an existing encroachment for access to, repair, replacement, or maintenance of its sanitary sewer or stormwater facilities, the town shall not replace nor rebuild the existing encroachment.
(2) If emergency access, repair, replacement, or maintenance to the town’s sanitary sewer or stormwater facilities is necessary, the town may pay to replace or rebuild the encroachment or pay for its cost after following the necessary statutory procedures for determining its value.
(D) Enforcement procedures. Any person who causes or permits an easement encroachment not existing at the time of adoption of this section or maintains any easement encroachment not existing at the time of adoption of this section shall be guilty of a section violation. The person may be subject to an enforcement action under this section as authorized by IC 36-1-6-2, and the town may seek fines, costs of removal of encroachments; and reimbursement of the town’s costs of collection including court costs and reasonable attorney’s fees. The enforcement procedures under this section are as follows. Employees of the town or its designated contractors may:
(1) Enter upon the easement where an easement encroachment is located or appears to be located, to remove any encroachment within the easement.
(2) In the event the obstruction is a structure, planting, or equipment, which could potentially obstruct the town’s use and enjoyment of the easement for the purposes for which the town has the easement, the town may issue a notice of violation.
(3) The notice of violation shall include the following:
(a) A general description of the condition of the encroachment, which is in violation of this section.
(b) The date of the notice and the number of days the real property owners are given to remedy the violation, which shall be no less than ten days, nor more than 60 days pursuant to IC 36-1-6-2(a), unless there is an immediate need to remove an obstruction to prevent potential damages to private or public property.
(c) In the event the encroachment is not removed within the time stated in the notice, the town, through its employees or agents, may enter upon the easement; remove the encroachment; and record a lien against the real estate for the costs of removal, all as authorized by IC 36-1-6.
(d) In the event the land within the easement is not brought into compliance by a real property owner, the town may, in addition to the remedies stated in division (D) above:
1. File an ordinance violation citation in an appropriate court in Clark County, Indiana seeking court costs and a fine of up to $2,500 for a first offense, and up to $7,500 for any subsequent offense. The citation shall refer to the number of Ordinance 2023-G-06 and the section of Ordinance 2023-G-06, describing the violation;
2. Seek a mandatory order to remove the obstruction within the easement;
3. In the event the violation of this section is not brought into compliance within the time set out in the above notice, the town may: a) enter onto the property and remove the encroachment without liability to the real property owner, any tenant, or other person occupying the real property owner’s real estate; and b) initiate an action to enforce any or all of the terms of this section pursuant to IC 36-1-6, including requesting a court order for the town, through its employees, agents, contractors, to enter onto the easement, remove any or all obstructions located within the easement in violation of this section; charge the real property owner of the costs of removing the encroachment; impose a lien upon the owner’s real estate to recover all costs to complete removal of the encroachment; and record a lien against the owner’s real estate including court costs and reasonable attorney’s fees. In order to recover the town’s costs, the town may foreclose the lien upon the real estate of the real property owner through the annual Clark County tax sale, all as permitted by IC 36-1-6-2(f).
4. None of the penalties or remedies of this section are exclusive of the other penalties and remedies listed above, and the town may seek any, or all, of such remedies.
5. The issuance of each second or subsequent notice of violation to a real property owner shall be deemed a separate offense.
(Ord. 2023-G-06, passed 6-20-23)