Just before midnight on Wednesday (April 28), Bloomington’s city council voted to end its committee-of-the-whole meeting on the topic of zoning laws regulating duplexes.
The meeting ended in the middle of public commentary before the council reached a point of taking any of its customary straw poll committee votes.
Here’s the basic question that will eventually be decided by the council: Will it be legal to build new duplexes in some residential areas of Bloomington where they cannot currently be built?
Council administrator/attorney Stephen Lucas confirmed to The Square Beacon that a final council vote on the question of duplexes could come as soon as Tuesday, May 4.
A special session will be set for that day at 6:30 p.m., it was announced at Wednesday’s committee-of-the-whole meeting.
If the city council changes the law so that new duplexes are allowed in specific districts, another layer of the decision will be: What is the process under which duplexes will be allowed?
Will it be a by-right process with no public hearing? Or will it be a conditional use process that includes a hearing in front of the board of zoning appeals?
The council’s decision to end the committee meeting just before midnight was made on a 5–3 vote. (Council president Jim Sims was inadvertently missed on the roll call.)
The end of the meeting came at a point when a couple of dozen people still had their virtual hands raised to speak during the public comment period on Amendment 01 to Ordinance 21-23.
The remaining public commenters will have to wait until next Tuesday (May 4) at 6:30 p.m. to have their say. That’s when a special meeting of the council will convene, to continue the deliberations.
The special meeting next Tuesday, in contrast to Wednesday’s committee-of-the-whole meeting, will be set as an official meeting of the city council as a public body, with its full power to make decisions, according to council administrator/attorney Stephen Lucas.
Lucas confirmed to The Square Beacon that a decision on the zoning ordinances being considered by the council could come as soon as Tuesday.
As a practical matter, it’s unlikely that final votes on both remaining ordinances in the 10-ordinance package being considered by the council would be wrapped up on Tuesday. One of the remaining ordinances (Ord 21-23) covers the allowable use of duplexes. The other (Ord 21-24) is a revision to the citywide zoning map.
At Wednesday’s meeting, council president Sims laid out the possible schedule of next week’s meetings.
If unfinished zoning business remains on Tuesday, after the council’s stamina is exhausted, the special meeting will be recessed, to continue on Wednesday (May 5)—after the regular council meeting scheduled for that day. And if the continued special meeting on Wednesday does not wrap up the zoning questions, it will be continued to Thursday (May 6). Additional meetings could be scheduled if necessary.
Tuesday’s public commenters will follow, by The Square Beacon’s count, 74 people who weighed in during the three hours of public commentary on Wednesday.
Currently, the city’s basic land use law does not allow duplexes in three residential districts—R1, R2, and R3. Among the 74 public commenters on Wednesday, those in favor of continuing the prohibition of new duplexes in those districts were in the majority by about a 2-to-1 margin.
Counting noses on amendments
A provisional nose count of councilmembers in favor of allowing duplexes in R1, R2, and R3, in some way or other, would put at least five of the nine in favor: Jim Sims, Isabel Piedmont-Smith, Matt Flaherty, Kate Rosenbarger, and Steve Volan.
The specific question under consideration on Wednesday when the meeting ended was Amendment 01 to Ordinance 21-23.
The ordinance, as recommended by the city plan commission to the city council, would establish duplexes as a permitted use in residential zoning districts (R1, R2, and R3). Those are districts where they are not currently allowed at all under the city’s current law on basic land use, which is the UDO.
Amendment 01, which is sponsored by Dave Rollo, Ron Smith, and Susan Sandberg, would change the allowed use table in Ordinance 21-23 to strike the “P”—for permitted use of duplexes—from the columns for R1, R2, and R3.
Not discussed at Wednesday’s committee meeting was Amendment 02 to Ordinance 21-23, which is sponsored by Isabel Piedmont-Smith and Jim Sims. Amendment 02 would replace the “P” with a “C”. The “C” stands for conditional use of duplexes.
So public commenters who speak in favor of Amendment 01 are against allowing duplexes in R1, R2, and R3.
Public commenters and councilmembers speaking in favor of Amendment 02 will, at least technically, be in favor of the conditional use of duplexes.
But depending on the sequence of Tuesday’s deliberations, support for Amendment 02 could just mean a preference for conditional use over permitted use, but a strong position against any allowed use at all.
The nose count that would see at least five councilmembers—Jim Sims, Isabel Piedmont-Smith, Matt Flaherty, Kate Rosenbarger, and Steve Volan—voting against Amendment 01, is based on a couple of different considerations.
Sims and Piedmont-Smith are sponsoring Amendment 02, which means they support duplexes—at least as a conditional use in R1, R2, R3. That is not consistent with disallowing duplexes in those districts, as called for in Amendment 01.
During UDO deliberations in November 2019, Volan, along with Sims, voted against an amendment that disallowed duplexes in R1, R2, R3. That’s essentially the same question posed by Amendment 01.
The November 2019 vote did not go Sims and Volan’s way, which is the reason why many residents see the question as having been settled in 2019: Duplexes would be disallowed.
Flaherty and Rosenbarger were not yet serving on the council for the November 2019 vote, but on that occasion spoke during public commentary against disallowing duplexes in R1, R2, and R3.
The vote to end Wednesday’s committee meeting just before midnight had five in favor: Volan, Piedmont-Smith, Flaherty, Rosenbarger, and Sue Sgambelluri.
Only the three sponsors of Amendment 01, which was under consideration at the time, voted to extend the meeting. If that vote were analyzed as a kind of proxy for the vote on Amendment 01, it would get only the three votes of its sponsors.
Tuesday (May 4) meeting structure
One option the council could consider for Tuesday, would anticipate controversy over the sequence in which the two amendments should get official consideration by the council. That option would entail suspending the rules to allow a kind of simultaneous consideration of both amendments.
Council administrator/attorney Stephen Lucas told The Square Beacon that he would be discussing Tuesday’s procedural options with council president Sims and council parliamentarian Flaherty.
Among the questions to be answered is how the remaining public commenters from Wednesday’s committee meeting will be queued up.
Lucas said, “Whatever additional clarity we can provide ahead of time will be included in the packet tomorrow.” The council’s meeting information packets are posted on the city council’s section of the city’s website.
Suspending the rules is one of several procedural options that would need a council vote to decide. So the structure of Tuesday’s meeting might not be settled until Tuesday, even if some idea of the range of possibilities could be included in the meeting information packet.
Conditional use versus permitted (“by right”) use
Amendment 02 is considered by many to be a kind of compromise position, because it allows duplexes as a use—but only as a conditional use.
In Ordinance 21-23, as amended and recommended by the plan commission, duplexes are a permitted use in the basic residential districts (R1, R2, R3, and R4).
A permitted use is often called a “by right” use.
A conditional use means that a project has to go in front of the board of zoning appeals (BZA) for approval.
In the 2019 deliberations on the UDO, some opponents of conditional use for duplexes, who argued for disallowing them, would point to approvals by the BZA as a kind of inevitable outcome, making a conditional use tantamount to a permitted use—so goes the argument.
Whether a project is approved is a poor way to measure the difference between conditional use and permitted use—so goes the counterargument.
One of the ideas of the counterargument is that a requirement to undergo a hearing in front of the BZA will winnow down the conditional use applications to just those that are approvable, and to just those applicants who are willing to engage their neighbors at a public meeting.
The willingness of a conditional use permit applicant to engage with neighbors has been cited during the most recent round of UDO plan commission hearings—as possibly discouraging smaller mom-and-pop landlords from building a duplex, if they have to face neighborhood feedback that they perceive as abusive.
What are the UDO criteria that the BZA would have to use to evaluate a conditional use permit for a plex?
A basic kind of requirement that is set forth in the UDO involves compliance with federal and state law, and any entities that have jurisdiction over the property. Issues covered include regulations on floodplain, water quality, erosion control, and wastewater.
Another one of the conditional use evaluation criteria is that public services and facilities are adequate for the project—like streets, potable water, sewer, stormwater management structures, schools, public safety, fire protection, libraries, and vehicle/pedestrian connections.
The approval of a conditional use permit also requires the BZA consider whether any adverse impacts are minimized and mitigated. A project is not allowed to cause significant adverse impacts on surrounding properties. It’s also not allowed to create “a nuisance by reason of noise, smoke, odors, vibrations, or objectionable lights.”
An applicant for a conditional use permit is also required to make “a good-faith effort to address concerns of the adjoining property owners in the immediate neighborhood as defined in the pre-submittal neighborhood meeting for the specific proposal, if such a meeting is required.”