Arguments heard in court on Bloomington’s attempt to take land to replace 4th Street parking garage

Around two hours worth of arguments and testimony were heard Monday morning at a show cause hearing about Bloomington’s eminent domain action on the JuanSells.com property. It’s just south of the now already partially demolished 4th Street parking garage.

Bloomington wants the owner, Juan Carlos Carrasquel, to sell his building so that the footprint of a planned replacement parking garage can extend the full block from 4th Street down to 3rd Street. Drawn out during Monday morning’s testimony was the city’s offer to  Carrasquel of $587,500 for the building. He purchased the building for $500,000 in spring of 2018.

The central legal issue in the case is whether the planned ground-floor retail space in the garage disqualifies it from the public purpose that a taking through eminent domain requires.

No bench ruling was made by judge Holly Harvey when the hearing concluded in Monroe’s circuit court at the Charlotte Zietlow Justice Center in downtown Bloomington.

Harvey did set a couple of deadlines. The first one is Oct. 18, for Carrasquel’s attorneys to file a reply to the memo filed last Friday by the city’s legal team. The deadline for the two sides to file a proposed set of findings and an order is Oct. 25.

Those deadlines mean a ruling might not come before Nov. 4, when the city’s plan commission is next scheduled to consider the proposed site plan for the replacement garage. The plan commission’s agenda for Monday, Oct. 7 shows the site plan as continued until Nov. 4. If there’s not a ruling by then, in the city’s favor, consideration of the site plan can be expected to be continued another month.

The site plan, which was initially heard by the city planning commission at its July 8 meeting, includes a six-story structure, with 511 parking spaces and roughly 11,800 square feet of non-garage space on the ground floor.

The site plan was presented at the July meeting of the plan commission, but wound up being continued to the following month, over questions about the commission’s legal authority to hear the proposal. The city’s local law requires that owners of parcels for which site plans are submitted give written consent. Carrasquel had not consented. The plan commission’s consideration of the site plan was subsequently continued to the following month’s regular meeting. It’s been continued each month since then.

On Monday morning, the hearing of the site plan without his consent was drawn out from Carrasquel on the witness stand by his attorney, Eric Rochford, with Cohen & Malad out of Indianapolis. Rochford’s phrasing of the question, about the lack of consent as a “blatant” violation of the city ordinance, drew an objection from Alan Townsend with Bose, McKinney & Evans, who gave the city’s oral arguments.

Harvey sustained that objection, but overruled a handful of others that Townsend made, on the grounds that Rochford was straying from the questions of law the court was supposed to consider. One of those objections came when Carrasquel started describing how Bloomington’s mayor, John Hamilton, had told him the city intended to purchase his building only through an agreement, not through “hostile” action. Harvey allowed that and some other lines of questioning to continue, adding that she would keep a “short leash” on things, and that she would sort out what is relevant when she makes her ruling.

The main question of law in the case appears to be whether the retail component on the ground floor of the proposed garage disqualifies it as the kind of public use that is required for a taking under eminent domain. In the course of the hearing on Monday morning, the city’s director of economic and sustainable development, Alex Crowley, confirmed from the witness stand that Bloomingfoods and the law firm of Bunger & Robertson have made direct or indirect inquires with the city about possibly leasing the ground floor space. Bunger & Roberston recently sold its property near the garage to the city.

The city filed a memo on Friday that cites two previous cases to support the idea that because the commercial space is just an ancillary use, not the principal use of the space, eminent domain can be used.

In Hawley v. South Bend Department of Redevelopment (1978), the court found that acquisition of a blighted downtown section of South Bend was permissible, even though the property was to be resold for construction of a shopping mall, because the resale was only incidental to the primary public purpose.

The precedent for “incidental” purpose comes from Kessler v. City of Indianapolis (1927),  which found that “a use which is in itself of public character justifying the exercise of the power of eminent domain does not lose its character as such by the fact that the exercise of the power for such use will incidentally result in private use or benefit.”

In his opening remarks on Monday morning, Rochford offered counterarguments to those two cases. The quote cited from the Kessler case by the city’s legal team was based on a Wisconsin case—Wisconsin River Improvement Co. v. Pier (1908)—involving the construction of a dam, Rochford said, and did not have anything to do with the project Bloomington is proposing. The significance of the Hawley case was confined to situation where a redevelopment commission was trying to combat blight, which was not the case with Carrasquel’s property, Rochford said.

The judge is giving Rochford until Oct. 18 to respond in writing to the city’s memo.

Part of the city’s argument for the permissibility of retail space as a part of proposed project is the requirement in the city’s code for the area where the parking structure is proposed. The code says a project “…shall provide ground floor nonresidential uses along the applicable street frontage. No less than fifty percent of the total ground floor shall be used for such nonresidential uses. Enclosed parking garages shall not be counted toward the required nonresidential uses.”

A series of questions put to Crowley by Rochford on Monday morning seem designed to elicit the fact that the proposed project falls short of the 50-percent requirement in the code. A specification on one of the layouts in the couple-hundred-page binder of stipulated facts put square footage at 11,800 square feet of non-garage to 20,500 square feet of garage.

Other questions raised by Rochford with Crowley on the stand concerned the possibility that monthly parking permits could be tied to specific private entities. Many of those questions led Crowley to respond that it was the city’s parking services division, not his department, that handles those issues. So he couldn’t give numbers on permits or how many, if any, are tied to specific private businesses.

On Monday, Townsend drew out the fact that the proposed parking garage is around 180,000 square feet and that Bloomington is proposing to use just 8,677 square feet of it as commercial space. Rochford analyzed that part of the city’s defense of the ground floor commercial space as a “proportionality argument.”

Rochford said that any proportionality question should be framed by looking at the increase of parking spaces and commercial uses proposed by the replacement garage compared to the current use. The 3,000 square feet of Carrasquel’s building and the 352 parking spaces of the city’s parking garage should be compared with the 8,677 square feet of commercial space and the 511 parking spaces that Bloomington is contemplating. That’s roughly a tripling of commercial space on the footprint of the planned garage with a net gain of just 160 parking spaces, Rochford said.

Rochford also drew out the fact that current drawings show that much of the planned commercial space is planned for the corner of the block where Carrasquel’s building stands. As Carrasquel put it, “There’s already a commercial use, and it’s me.”

Court filings in the case can be retrieved from the state’s mycase.IN.gov online system using the case number 53C06-1906-PL-001293.

Here’s a link to The Beacon’s previous coverage of the eminent domain action.

In attendance at Monday’s hearing on the city’s side,  in addition to Townsend and Crowley, were: Mike Rouker (city attorney); Larry Allen (assistant city attorney); Philippa Guthrie (corporation counsel); Mick Renneisen (deputy mayor); and Jackie Scanlan (development services manager). Appearing on Carrasquel’s side besides Carrasquel and Rochford, was attorney David Ferguson. Jason Lee McAuley attended on behalf of German American Bancorp, Inc, which financed Carrasquel’s purchase of the land.