4th Street parking lawsuit: Landowner files response, both sides now face Friday deadline for proposed ruling

cropped 10-21-2019 juan sells demolition IMG_7637
The 4th Street parking garage is on its way to complete demolition. This photo was taken Monday, Oct. 21. Whether the 222 S. Walnut building that houses JuanSells.com eventually joins the pile of rubble will be up to  the court after proposed orders are filed by the two sides by this Friday, Oct. 25. (Dave Askins/Beacon)

The Bloomington city council’s insistence on the inclusion of ground floor commercial space in the proposed replacement for the 4th Street parking garage is a factor in one of the arguments a landowner is making, in an attempt to ward off the city’s attempt to take some real estate through eminent domain action.

A response brief from attorneys for landowner Juan Carlos Carrasquel was filed by last Friday, the deadline set by the judge after oral arguments were heard on Oct. 7.

The central legal argument in the case is whether the inclusion of ground-floor commercial space disqualifies the parking garage project as a public use.

The Oct. 18 brief reprises arguments made at the Oct. 7 hearing, but brings into clearer focus how the city council’s insistence on the commercial space fits into those arguments.

The landowner was given until Friday to file a response to a memorandum the city had filed before the Oct. 7 hearing. The next milestone is the case will be this Friday, Oct. 25, when both sides are due to submit their proposed orders to the court.

The city council’s insistence that the replacement garage include commercial space on the ground floor doesn’t appear to be a part of the council’s resolution, approved on a 5–3 vote, to issue bonds to fund the construction.  However, the minutes of the Dec. 3, 2018 meeting of the city’s redevelopment commission reflect that changes were made to the parking structure’s project review and approval form to include “attractive retail space” on the ground floor. Four members of the city council attended that RDC meeting: Dorothy Granger, Isabel Piedmont-Smith, Susan Sandberg, and Steve Volan. Councilmembers made remarks at the meeting.

In any event, based on Friday’s brief, the two sides in the eminent domain lawsuit appear to have agreed that the city council required the replacement garage to have a commercial component on the ground floor. From the landowner’s Oct. 18 brief:

The City agreed that the first-floor non-residential use for the Project was an “aspect of the design . . . explicitly requested by the City Council and approved by the redevelopment commission.” (Agreed Factual Stipulations, para. 21.) Moreover, Mr. Crowley testified at the Show Cause Hearing that the City Council would only approve the funding of the Project if the nearly 10,000 sq. ft. of commercial retail space was included. (Testimony of Alex Crowley [the city’s director of economic and sustainable development].)

The idea that inclusion of the commercial space was a discretionary requirement of the city council in order to fund the project fits into the reasoning in one of the precedents in the case, Kessler v. City of Indianapolis (1927).

The Oct. 18 brief quotes the Kessler decision as follows: “Where . . . the intention to confer a private use or benefit forms the purpose or a part of the purpose of the proceeding or taking the power of eminent domain may not be exercised.” Because the city council insisted on the inclusion of the commercial space, a private use was part of the purpose—in fact, was a requirement to get funding—for the taking, according to the brief.

The city council’s insistence on the commercial space is also used by the landowner as part of a rebuttal to Bloomington’s argument that any private commercial space is only “incidental” to the public purpose of the project. Bloomington cited the Kessler decision as follows: “A use which is in itself of a 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 a private use or benefit.”

The landowner’s Oct. 18 brief uses the city council’s insistence on the commercial space to counter Bloomington’s contention that the commercial space is an incidental consequence of the public purpose of a parking garage:

Because the commercial retail space was a requirement imposed by the City Council, the City Administration chose not to seek a waiver from the City Plan Commission of the ground floor non-residential (commercial retail) space requirement. Thus, the commercial retail space was a requirement of the garage construction and not a chance or minor consequence of the garage.

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.