COVID-19 curtailment of court activity impacts timing in some Bloomington civil cases

Last Monday (March 16), concerns about the public health emergency caused by the COVID-19 pandemic led Monroe County’s judges to use an administrative rule to petition Indiana’s supreme court for the temporary closure of the county’s circuit court.

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Other counties across the state filed similar petitions. On Wednesday, Indiana’s highest court issued an order  granting most of the requests made by the judiciary of Monroe County.

One of the scenarios that allows use of Administrative Rule 17 by the local courts is “wide spread disease outbreak.”

The disease triggering the administrative rule is the COVID-19 pandemic. Updated numbers from the Indiana Department of Health on Sunday morning, March 22, indicate the number of confirmed cases in the state was 2.5  times the number two days earlier, including the first for a Monroe county resident. On March 20, the number of confirmed cases in Indiana was 79. The number on Sunday had climbed to 201. The number of tests nearly tripled during that period, from 554 to 1,494. Four deaths caused by COVID-19 have been reported so far in Indiana.

The supreme court’s order will affect the timelines for at least two civil cases involving the city of Bloomington.

One involves wrapping up the unsuccessful eminent domain action by Bloomington related to the 4th Street parking garage. After Bloomington’s filing on Friday of a motion to withdraw its appeal, a remaining step is to settle the amount of fees that the landowner’s lawyers are allowed to recover.

When Bloomington filed notice of appeal, the hearing on fees, originally scheduled for March 9, was pushed to an undetermined date. Now that Bloomington has withdrawn the appeal, the rescheduling of that hearing will need to conform with the order on court closures related to COVID-19.

Another case involves the demolition of a house on W. 7th Street in Bloomington. The bench trial originally scheduled for March 30 has been pushed to an undetermined date. The trial, based on action brought by the landowner, is on the question: Must Bloomington officials issue a certificate allowing for the already-done demolition?

Based on the order, it looks unlikely that either of those two cases will be be resolved before mid-May.

Through April 10, the state supreme court’s order allows for expanded deadlines of “all laws, rules, and procedures setting time limits for speedy trials in criminal and juvenile proceedings, public health, mental health, and appellate matters; all judgments, support, and other orders; and in all other civil and criminal matters before the Monroe County Circuit Courts.”

The order also authorizes the immediate suspension of all criminal and civil jury trials through May 4, 2020. Under the order, Monroe’s circuit court has to review no later than April 10 whether extended suspension of jury trials is needed, and if not to start holding jury trials again no later than May 4.

W. 7th Street house demolition

Bench trials are also affected by the supreme court’s order, including the one scheduled for March 30 on the W. 7th Street house demolition.

That might mean some additional skirmishing between the city and the landowner  about the sequencing of the bench trial and a related hearing in front of the city’s board of zoning appeals (BZA) hearing.

The landowners attorneys wanted a bench trial to be held before the BZA hearing, which was scheduled for this past Thursday (March 19). Bloomington wanted the BZA hearing to come first.

Even though the BZA met on Thursday, the board put off until at least next month the appeal by the landowners of the $83,500 fine the city wants to impose on them. The postponement was due in part to Indiana governor Eric Holcomb’s emergency order, issued on Tuesday, limiting the meetings of governmental entities to just essential matters.

The amount of the fine was calculated by Bloomington based on a recurring violation each day after the demolition of house, an action taken by the landowners without having a certificate of zoning compliance (CZC).

The appeal by the landowners to the BZA includes a few different arguments. One argument is that if there was a violation of the requirement of not having a CZC to undertake a demolition, then it happened one time, not each day after the demolition was done.

Another argument by landowners is that the house was not placed under interim protection by the city’s historic preservation commission inside a required 90-day timeframe. And because of that, Bloomington officials were required to issue a CZC, according the the landowners’ argument.

Responding to that argument, the city of Bloomington’s staff report to the BZA describes as “lawlessness” the idea of demolishing the house in the absence of a CZC, based on the idea that a CZC was required to have been issued.

Eminent domain, 4th Street parking garage

Even though the BZA put off its agenda item about the W. 7th Street house demolition, the BZA still met on Thursday. The one item handled by the BZA at its Thursday meeting was a request from the city of Bloomington for two variances related to the replacement parking garage to be built at 4th and Walnut streets.

Bloomington analyzed the construction of the replacement garage as complying with the governor’s order limiting public meetings to “essential matters critical to the operations of the governmental agency or entity.”

Both variances were granted by the BZA. One variance was for an entrance driveway on Fourth Street that is wider than allowed under city code. The other variance was for smaller separation between the entrance drive and Walnut Street than is required by city code.

The plan commission’s approval of the site plan, together with the BZA’s approval of the variances, cleared the way for bidding and mobilizations that, all things being equal, would lead to a construction start around August of this year. If construction goes as planned, the new garage would open in August 2021.

With those two administrative hurdles cleared, Bloomington dropped its appeal of the eminent domain decision, that prevented  Bloomington from taking the building on the south end of the block, so that the replacement garage could be built on a larger footprint.

The new design, approved by the plan commission on March 9, is at the same site, on the same footprint, where the old 4th Street parking garage stood, until it was demolished in late 2019.

The city of Bloomington’s attempt to build the replacement garage on a larger footprint foundered on an unsuccessful eminent domain action. The court ruled that the inclusion of ground-floor commercial space was not consistent with the public purpose required for an action under eminent domain.

Bloomington filed a notice of appeal at the end of January. The 30-day timeframe to file the first brief in the appeal process did not start until the court clerk completed lower court’s transcript and filed it. That came the week before last, on March 13.

The remaining question to be answered is how much attorneys for landowner Juan Carlos Carrasquel can claim in reimbursement.

Eric Rochford, with Cohen & Malad out of Indianapolis filed documents showing a total of $42,118.06. Local Bloomington attorney David Ferguson, with Ferguson Law filed documents showing $22,848.25. In round numbers that’s a total of $64,966.

Based on last week’s order from Indiana’s supreme court, it looks unlikely that a hearing on attorney fees would be scheduled before mid-May.