Bloomington plan commission to take up city’s 4th Street parking garage site plan again in August amid doubts about legal authority to act on it

At Monday’s meeting—when some plan commissioners questioned their own legal authority to act on the petition—no decision was made on the city of Bloomington’s proposal to build a replacement parking structure at the 4th and Walnut site.

Cropped Juan IMG_8044
Juan Carlos Carrasquel, whose building at 222 S. Walnut is the target of a City of Bloomington eminent domain action, addresses Bloomington’s plan commission on July 8, 2019. (Dave Askins/Beacon)

The current garage, evaluated as structurally unsound, has sat derelict since the first of the year.

The commission will take up the site plan review again at its Aug. 12 meeting, possibly with a full complement of its nine members. Two commission members did not attend Monday’s meeting, which factored into the lack of a decision.

The question of legal authority arose, because the proposed site of the replacement garage would include some property at the south end of the block that the city does not currently own—the building that is home to Realty Company.

It was not the lack of ownership that prompted the legal question—it’s not uncommon for a petitioner to have a land purchase agreement in place that’s conditioned on site plan approval. In those cases, the owner gives written consent for the site plan to be submitted and reviewed.

What makes the site plan review legally problematic is the lack of owner consent. In early June, the city filed papers with the Monroe County Circuit Court as part of its attempt to take the Realty property through the eminent domain process.

During public commentary at the meeting, Juan Carlos Carrasquel addressed plan commissioners saying there was no ongoing negotiation with the city over a possible purchase of his building and he was not interested in selling, so he had not given his consent.

Bloomington’s corporation counsel, Philippa Guthrie, under questioning from commissioner Brad Wisler, conceded one legal point: “It is true that the UDO requires [consent] for petitioners who are not the owner.”

Guthrie added: “… We are now in an eminent domain action…We’ve been unable to reach an agreement. So, we can’t get his consent.”

About an eminent domain action and the required consent of the owner, Guthrie contended: “It doesn’t directly address it. I think it’s fair to say the UDO didn’t contemplate this kind of situation.” Guthrie told commissioners the city wanted them to go ahead and grant the site plan approval on a conditional basis—it would become moot if the city did not acquire the property.

Public commentary came from 13 people. All but four spoke against approval of the site plan. Those in favor contended that the parking spaces were needed in order to support downtown retail. Those opposed cited the legal question and questioned the wisdom of constructing a parking garage in the context of global concerns, comparing it to building a church to the religion of climate-change denial-ism.

Commission chair Joe Hoffmann responded to some of the public commentary by saying that it was a contested legal question whether the commission had the authority to hear the petition. But he pointed to another limit on the commission’s authority, which related to their task at the meeting. The commission’s job, Hoffmann said, was confined to site plan review, and did not include evaluating the appropriateness of a parking structure as a land use for that location.

The only vote taken by the plan commission was on the question of continuing the hearing to the commission’s Aug. 12 meeting, instead of voting on the site plan Monday evening. It failed on a 3–4 tally, with Wisler, Hoffman and Nick Kappas voting for it. That could have set up a motion to vote on the site plan itself.

But none of the commissioners wanted to move approval of the site plan for the six-story garage with its 510 parking spaces and roughly 11,000 square feet of commercial space on the ground floor.

Commissioners appeared to agree with Hoffmann’s speculation that the 3–4 split on delaying meant that a vote on the site plan would split along the same lines, 4–3, which would have left the site plan without the required 5-vote majority on the nine-member commission. Commissioners Jillian Kinzie and Karin St. John did not attend the meeting.

That meant the commission had made no decision on the site plan. Hoffmann concluded that the parking garage was continued by default to the next meeting, on Aug. 12.

The section of the UDO that prompted the criticism on legal grounds covers the basic application requirements.

20.09.030 – Applications—General.
(a) Application Requirements.

(2) Applications for any petition, permit, or process under this title shall include the information listed below. Submittals may be composed of one or more sheets and drawings and shall include:

(D) Signed, written consent of owner if other than applicant;

When Hoffmann sketched out the constraints of the plan commission’s role, he contrasted it with that of the city council, which he noted is an elected body. Electoral politics were not an overt part of Monday’s proceedings, but several actors had a connections to current or past city council politics.

Sitting as the city council’s representative on the plan commission is Democrat Susan Sandberg. She’s one of three at-large city councilmember candidates who qualified for the general election. No election will be held for the at-large seats this year, because the races are not contested.

Speaking during public commentary, against the parking garage site plan, was Democrat Kate Rosenbarger, who won her party’s primary, and who is the only candidate this year for District 1 seat on the city council. So no election is being held for that seat.

Agreeing with the point about the need to adhere to the UDO requirement that a property owner give written consent for a petition to be heard was plan commissioner Nick Kappas. He’s running for city council as an independent candidate for the District 3 seat. It’s a three-way race that includes former city councilmember Marty Spechler, who is running as an independent, and Ron Smith, who won the Democratic Party’s primary in May.

Leading the scrutiny of the legal question involving owner consent was plan commissioner Brad Wisler, who served District 2 as a Republican from 2006 to 2011.

Also serving on the city council as a Republican, from 1996 to 2007, was David Sabbagh, who addressed the commission during public commentary in support of the parking structure. The only concern he had was about the inclusion of retail on the ground floor, he said, but said others who knew more about retail than he did seemed to support it.