In a ruling issued Tuesday, Monroe County circuit court judge Holly Harvey denied Bloomington’s request to have a second try at acquiring the 222 Hats property on S. Walnut Street.
Bloomington wanted to use the land as part of the footprint of its planned replacement parking garage.
Tuesday’s ruling appears to wrap up the 222 Hats eminent domain litigation in the land owner’s favor, at least until a decision is made by Bloomington about a possible appeal.
This most recent effort by Bloomington to take the 222 Hats building was not an appeal. It was based on re-opening the same eminent domain case that the city lost in December. What Bloomington wanted to do was re-open that same case to amend the design of its proposed replacement garage.
The 222 S. Walnut building houses owner Juan Carlos Carrasquel’s real estate business.
The design amendment that Bloomington wanted to use for a re-opened case omitted any retail or commercial component. It was the ground-floor retail component in the initial design that caused Harvey to conclude in December that “the retail use of the proposed project, which cannot be separated from the public aspect, prohibits the taking of the 222 Hats Real Estate.”
But on Tuesday, Harvey said Bloomington couldn’t amend its lawsuit to remove the retail component, saying that the revised complaint was not consistent with the facts that she had seen previously in the case [Jan. 28, 2020 ruling]:
“The Court, being duly advised and considering the briefs of both parties, now denies the Motion, as the proposed Amended Complaint does not conform to the evidence previously presented to the Court.”
About Bloomington’s next step, deputy mayor Mick Renneisen told The Square Beacon that it would take discussion with the mayor’s office and the legal staff, and he did not think a comment would be available until the next day (Wednesday).
Bloomington’s options appear to include appealing the lower court’s decision or re-designing the replacement garage on the original footprint of the now-demolished structure. The second option would eliminate the need for land acquisition through eminent domain.
The city wanted to use the lot where the 222 Hats building stands, just to the south of the now demolished 352-space 4th Street parking garage, to make a bigger footprint for a replacement parking garage.
The mention in the judge’s ruling to the non-conformance of “evidence previously presented to the court” could have been a reference to one or both of the objections made by the landowner to Bloomington’s attempt to have a second try at the eminent domain case.
In one of his objections to the city’s new strategy, the landowner said the city’s filing “lacks any showing that the required approvals have been obtained or could possibly be obtained.” The landowner’s statement is based in part on the fact that the plan commission would need to waive a specific requirement in the city’s zoning code in order for the city’s new commercial-free design to be approved.
The city code requires that the ground floor of buildings in that area of downtown have non-residential, non-parking uses. Commercial, retail spaces would fit that description.
The city’s amended design would have removed the component on which its first eminent domain effort foundered. The amended design would have violated the ground-floor requirement. Bloomington said it didn’t anticipate any difficulty obtaining the waiver from the plan commission, in order to win approval for its new design.
It’s possible the judge didn’t buy Bloomington’s contention that the waiver of the ground-floor requirement by the plan commission wouldn’t be difficult.
It’s also possible the judge was persuaded by the landowner’s claim that the city council’s decision to approve the issuance of $18.5 million of bonds for the project was contingent on the inclusion of ground-floor retail that Bloomington wanted to amend out.
The resolution on the $18.5 million bond issuance for the project, approved April 3, 2019, by the city council on a 5–3 vote, does not appear to have any wording requiring a ground-floor retail component for the project.
But a memo dated March 20, 2019 to the city council from Bloomington corporation counsel, Philippa Guthrie, describes the project that is to be funded with the bond issuance. Guthrie’s memo says: “The new 4th Street Garage will have a maximum of no more than 550 parking spaces and will include many sustainable features, including, but not limited to, the following: … Retail space on the ground floor …”
In its response to the objection based on funding, Bloomington focused on the significance of a stipulation to which the two sides had agreed. It’s one that reads: “City of Bloomington has not requested a waiver from B.M.C. § 20.03.120(6) that requires first floor non-residential use for the project. This aspect of the design was explicitly requested by the city council.”
The city contended that even if the landowner saw in that stipulation a mandatory condition imposed by the city council, it is in fact, a “permissive, non-binding aspiration.”
The demolition of the old garage started in late September and was completed by mid-November. But the 352-space garage has been shut down for a bit more than a year, since January 2019.
At one point, at the end of 2018, the city council had voted to repair, not rebuild the garage.
From the time a site plan is approved, the construction of a replacement garage is estimated to take about a year.
Forecasting how long an appeal would take is not an exact science. For a different pending case, involving the definition of a fraternity in its zoning code, the Bloomington filed notice of appeal at the end of February last year. Oral arguments in that zoning case were heard in early October. The court of appeals has not yet ruled in the case. [City of Bloomington BZA v. UJ-Eight Corporation]
For all Beacon coverage of the eminent domain lawsuit see: City of Bloomington v. 222 Hats.