(A) Streets, curbs, sidewalks and tree lawns are held for and devoted to public use, subject to the recognition of the peculiar rights of abutting property owners therein, and it is the purpose, spirit and language of state law to enable a municipality to require improvements, to determine the character of the improvements and to enforce the payment of benefits of improvements against the owners of the properties abutting such improvements.
(B) Without relinquishing the power and authority of the municipality to require general improvements to streets, curbs, tree lawns and sidewalks now available under state law, it is necessary in the interests of safety to establish standards for replacement, maintenance and repair of curbs, tree lawns and sidewalks at specific properties in order to preserve and protect the interest of the public generally and abutting property owners.
(C) The Street Commissioner shall establish, maintain on file in his or her office and shall make available to owners of property in the town specifications for the construction of curbs, sidewalks and maintenance of tree lawns, including any requirements for the trimming of trees located within tree lawns or overhanging any portion of the public streets, alleys and ways in the town.
(D) Each owner of property abutting a public street, alley or way in the town shall bear responsibility for proper and safe condition of abutting curbs, tree lawns, trees and sidewalks and, shall, if requested in writing in accordance with the terms of this section, replace, repair and maintain curbs, tree lawns, sidewalks and trees overhanging any portion of the public places of the town in compliance with the specifications described in the preceding section, so as to afford users of the public streets, tree lawns and sidewalks reasonable safety.
(E) If the Street Commissioner determines in writing that a curb, tree lawn or sidewalk is defective and that the defective condition creates a foreseeable risk of harm to persons using the street, curb, tree lawn of sidewalk, then the Street Commissioner shall serve notice upon the owner of the property which abuts upon such defective condition describing the defect and the specific requirements for elimination of the defect. The Street Commissioner shall also determine and advise the property owner of the time within which the corrective measures shall be commenced and completed. The notice shall include a copy of any specifications prescribed by the Street Commissioner for the correction of the defect. If the property owner resides within the town, the notice shall be served upon the property owner by the Town Marshal. If the property owner is not a resident within the corporate limits of the town, notice shall be served upon the property owner by certified mail, return receipt requested. If a property owner notified in accordance with this section does not agree with any part of the determination made by the Street Commission, the property owner shall have the right to appeal the Street Commissioner’s determination to the Town Manager; provided that, the property owner shall notify the Town Manager in writing of the reason or reasons for the objection within 30 days after the Street Commissioner’s notice is served upon the property owner. The Town Manager shall fix a date, time and place to hear the objection of the property owner and shall, within five days after the hearing, notify the property owner of the decision, in writing, which determination shall be served upon the property owner by certified mail, return receipt requested. All decisions of the Town Manager shall be forwarded by the Town Manager to the Clerk-Treasurer, who shall place the matter on the agenda of the next regularly scheduled meeting of the Town Council; provided, however, if the Town Manager’s decision on the appeal shall have been served on the property owner within seven days of the next regularly scheduled meeting of the Town Council, the matter shall be placed on the agenda of the immediately succeeding regularly scheduled meeting of the Town Council. If the property owner objects to the decision of the Town Manager, then the property owner shall have the right to appear before the Town Council when the matter is scheduled on its agenda and to be heard. The decision of the Town Council in the matter shall be final, subject to only any rights of the property owner to enjoin the action of the town in a court of competent jurisdiction. When the positions of Street Commissioner and Town Manager are occupied by the same person, an appeal from a decision of the Street Commissioner shall be directed to the Town Council, and the Clerk-Treasurer shall place the matter on the Town Council’s agenda and give the notices required hereunder.
(F) In the event a property owner shall not comply with a final order to repair a defective condition, and such failure shall have continued for more than 120 days from the date of the order, the Street Commissioner, with the approval of the Town manager, may contract for the repair, to be paid from appropriated funds. The costs of such repair, plus 20% thereof for the contracting and supervisory services along with interest at the statutory rate, shall be a lien upon the property benefitted by the repair, under the same requirements and procedures prescribed by I.C. 32-28-3 for mechanics’ liens, enforceable by the person performing the repair or the town. In addition to the right of the town to contract for the complete repairs ordered hereunder, the failure of a property owner to complete a repair within 120 days of the final order therefore shall constitute a violation of the Penal Code of the town.
(G) In the event the correction of a defective condition necessitates the establishment of grades or elevations or requires the services of a licensed engineer for the purpose of defining the scope of the work, then the costs of the services described in this section shall be borne by the town.
(Prior Code, Title III, Ch. II, Art. V) Penalty, see § 151.99