§ 14-38-101. Petition for incorporation

(a)

1. (1) When the inhabitants of a part of any county not embraced within the limits of any city or incorporated town shall desire to be organized into a city or incorporated town, they may apply, by a petition in writing, signed by the greater of either two hundred (200) or a majority of the qualified voters residing within the described territory, to the county court of the proper county.

2. (2) The petition shall:

   1. (A) Describe the territory proposed to be embraced in the incorporated town and have annexed to it an accurate map or plat of the territory;

   2. (B) State the name proposed for the incorporated town; and

   3. (C) Name the persons authorized to act in behalf of the petitioners in prosecuting the petition.

(b)

1. (1) Unless the governing body of the municipal corporation has affirmatively consented to the incorporation by written resolution or the area that seeks to be incorporated contains a population of one thousand five hundred (1,500) or more, the court shall not approve the incorporation of a municipality if any portion of the territory proposed to be embraced in the incorporated town lies within:

   1. (A) Three (3) miles of an existing municipal corporation; or

   2. (B) The area in which that existing municipal corporation is exercising its planning territorial jurisdiction.

2. (2) The planning territorial jurisdiction limitation shall not apply if the area proposed to be incorporated is land upon which a real estate development by a single developer, containing not less than four thousand (4,000) acres, has been or is being developed under a comprehensive plan for a community containing streets and other public services, parks, and other recreational facilities for common use by the residents of the community, churches, schools, and commercial and residential facilities, and which has been subdivided into sufficient lots for residential use to accommodate a projected population of not fewer than one thousand (1,000) persons, and for which a statement of record has been filed with the United States Secretary of Housing and Urban Development under the Interstate Land Sales Full Disclosure Act.

(c) When any petition shall be presented to the court, it shall be filed in the office of the county clerk, to be kept there, subject to the inspection of any persons interested, until the time appointed for the hearing of it.

(d)

1. (1) At or before the time of the filing, the court shall fix and communicate to the petitioners, or their agent, a time and place for the hearing of the petition, which time shall not be less than thirty (30) days after the filing of the petition.

2. (2)

   1. (A)

      1. (i) Thereupon, the petitioners or their agent shall cause a notice to be published in some newspaper of general circulation in the county for not less than three (3) consecutive weeks.

      2. (ii) If there is no newspaper of general circulation in the county, a notice shall be posted at some public place within the limits of the proposed incorporated town for at least three (3) weeks before the time of the hearing.

   2. (B) The notice shall contain the substance of the petition and state the time and place appointed for the hearing.