Sovereign immunity means a fence for Bloomington post office

In 1914, a new building for Bloomington high school was constructed where Seminary Park now sits, between Walnut and College, on 2nd Street.

It’s the same year when Robert Frost’s poem “Mending Wall” was published, with its proverbial line from the storyteller’s adjacent landowner: “Good fences make good neighbors.”

In mid-May the US Postal Service started building an eight-foot-tall fence around its branch just south of the park.

With its fence construction, by the standards of the narrator’s neighbor in the “Mending Wall,” the USPS has made itself a “good neighbor” to the public park.

Some local reaction has been more along the lines of the storyteller in the poem: “Before I built a wall I’d ask to know / What I was walling in or walling out, / And to whom I was like to give offense. / Something there is that doesn’t love a wall, That wants it down.”

The image is from the Pictometry module of Monroe County’s online property lookup system.

It looks like the fence probably doesn’t conform with local zoning code. But the principle of “sovereign immunity” means the USPS, even as a lessee of the property, can build the fence the way it wants, according to Bloomington’s legal department.

Seminary Park was the focal point of an intensely controversial proposed ordinance considered earlier this year by Bloomington’s city council, which failed on a 4–4 tally at a nine-hour meeting in early March.

The ordinance would have provided some protections to encampments of people experiencing homelessness, like the one established in Seminary Park late last year, and twice cleared  by Bloomington’s police department under direction from the mayor.

Before the establishment of an encampment in Seminary Park in fall of 2020, the behavior of some of the people who used the public park drew complaints from the public, including from an employee of the post office.

A search of Bloomington uReports filed about the “post office” will turn up a complaint from a postal worker from April 20, 2020, which mentions previous complaints dating to 2013.

The uReport says, “I first submitted my complaint in May 2013 and have all copies of my correspondence—along with [deputy mayor] Mick Renneisen’s responses. There are regularly large groups of people going back and forth to Big Red Liquors and taking their booze back to the park to drink openly all day long.”

The complaint adds: “There is filthy language, shouting cuss words, fighting, loud boom-box music that we can hear inside the Post Office, stumbling through our parking lot, leaving trash everywhere in the park and through our parking lot.”

The USPS employee who filed the complaint describes herself as having worked at the Walnut Street location “since the post office took over the old Ponderosa.”

The relocation of the USPS from its 4th and Washington building to the former Ponderosa restaurant building, on Walnut Street south of Seminary Park, came around 2011, based on H-T reporting at the time.

The 4th and Washington location is now the grassy field and parking lot just south of the First United Methodist Church. The parcel is owned by the church.

The Ponderosa closed a few years earlier, in 2006. [2007 Google Street View]

Measured by The Square Beacon, the chain-link panels of the fence are a smidgen shorter than 8 feet tall. The poles, with their extensions that could, but don’t yet, accommodate barbed wire, measure out at around 9 feet. A couple of the corner posts are about 10 feet tall.

Asked by what the applicable zoning code for fences is, development service director Jackie Scanlan pointed the Square Beacon to the section in the city’s unified development ordinance on fence standards: 20.04.080(n).

The lot, which goes all the way from Walnut Street to College Avenue is a “through lot.” A “through lot” has to meet special fence standards.

But for the primary front of a building on a through lot, the UDO points back to the same standards as an “interior lot,” which say, “Forward of the front building wall of the primary structure, fences and walls shall not exceed four feet in height.”

Even if the fence around the post office building might be twice as tall as allowed by Bloomington’s zoning code, that doesn’t keep the USPS from building a fence the way it wants.

Scanlan wrote, “[The city of Bloomington] believes that as a federal agency, the USPS has sovereign immunity except in very limited circumstances and/or where Congress has waived the immunity.”

Scanlan continued, “Congress has not waived USPS’ immunity from local zoning laws and there are no other limited circumstances that would apply to this situation.”

The city’s corporation counsel, Philippa Gutherie, confirmed to The Square Beacon that sovereign immunity applies even though USPS is a lessee of the property. It’s owned by Robert Scank through Bobby’s Development, LLC.

Guthrie wrote, “It may seem strange that sovereign immunity applies to a federal agency when the agency is leasing a property, but there is precedent extending immunity in such a circumstance.”

Guthrie added, “The City would be very unlikely to be successful if it proceeded against the property owner, regardless of who paid the contractor.”