Pierce, 080813 INAGO, AGO 2013-5

• Case Date: August 08, 2013
• Court: Indiana

The Honorable Matt Pierce AGO 2013-5 Official Opinion No. 2013-5 State of Indiana Office of the Attorney General August 8, 2013          The Honorable Matt Pierce          Indiana House of Representatives          200 W. Washington St.          Indianapolis, IN 46204          RE: Process for Creation of Historic Preservation Districts          Dear Representative Pierce:          You have requested an opinion on the relationship between Ind. Code Chpt. 36-7-11-1 and the general Home Rule powers of a municipality. Specifically, you asked whether a city council is allowed to “pass an ordinance, which requires specific, affirmative action by the city council, after the first, three-year phase referenced in state law, in order for a full historic district to be created or must the ordinance strictly follow the procedures outlined in Ind. Code § 36-7-11-19?          BRIEF ANSWER          If a city council has established a historic preservation commission and chooses to establish a historic district using the two-step method, then it most follow the procedures under Ind. Code § 36-7-11-19, which does not require affirmative action on the part of the council before the second phase can begin.          ANALYSIS          Home Rule          “In 1980, the legislature adopted the Home Rule Act. Under the Act, a local unit of government is granted broad authority, with few exception, to adopt any local law needed ‘for the effective operation of government as to local affairs.’” 2003 Ind. Att’y Gen. Op. No. 07 (quoting Ind. Code § 36-1-3-2.1 To this end, a “unit may exercise any power it has to the extent that the power:

(1) is not expressly denied by the Constitution or by statute; and

(2) is not expressly granted to another entity.”

Ind. Code § 36-1-3-5(a).          The manner in which a unit may exercise its powers can be limited. Specifically, “[i]f there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner.” Ind. Code § 36-1-3-6(a). Courts have interpreted “statutory provision[s] requiring a specific manner for exercising a power” to include those statutes that confer a power to a unit but then require the unit to take certain steps in order to exert that power. See e.g. Gaudin v. Austin, 921 N.E.2d 895 (Ind. Ct.App. 2010) (finding that the County Commissioners did not have the authority to dissolve a fire protection district by ordinance because Ind. Code § 36-8-11-24 provided the proper manner for dissolving such a district); City of Evansville v. Fehrenbacher, 517 N.E.2d 111 (Ind. Ct.App. 1987) (finding that the City Council failed to act on an ordinance when its vote resulted in an equal number of votes on either side since...