Annexation update: Electronic access at city hall for public hearing, city releases waiver data, Area 7 likely out

In a news release issued on Monday, the city of Bloomington announced that it will provide electronic access at city hall to a public hearing on annexation that is being continued this week on Wednesday starting at 6 p.m.

The city has also released its data on annexation remonstrance waiver dates, in response to a records request from The B Square, made under Indiana’s Access to Public Records Act.

[Updated at 4:59 p.m. on Aug. 10: The mayor’s office has issued a news release recommending the removal of Area 7 from the proposed annexations. Area 7 is the northernmost of the eight areas proposed for annexation. Area 7 had already received three city councilmember votes in opposition, when the annexation ordinances were amended in mid-May to update them from the 2017 process.]

[Updated at 4:07 p.m. on Aug. 11: Van Buren Township office will be open at 5:30 p.m., if anyone would like to comment to the Bloomington city council, according to township trustee Rita Barrow. The office is now located across the road from the fire station in a white building. 2123 S Kirby Rd. 812-825-4490]

The continued public hearing this week will be convened on the Zoom video-conferencing platform.

According to Monday’s news release, computers at city hall will be available for use by residents who are “interested in watching or participating in the meeting who might otherwise be without internet capability.”

The news release continues, “City staff will also provide guidance to those who join the meeting at city hall about using online tools to make a comment during the public hearing.”

According to the news release, “Visitors may use computers set up in the city hall atrium, or watch the meeting on monitors in the adjacent council chambers.”

The electronic access provided by the city for this Wednesday’s continuation of the public hearing could be analyzed as an attempt to address some criticism heard by city officials last week.

That criticism came after the cancelation of the in-person component of last week’s public hearing. City representatives suggested that the public could get access to the electronic meeting by visiting the Monroe County Public Library and using the computing resources there.

To prevent spread of the COVID-19 virus, a mask requirement for visitors to Bloomington’s city hall has been in place since the building was re-opened to limited public access. Like many other public facilities, during the worst phases of the pandemic, Bloomington’s city hall was closed to the public.

The mask requirement will be in place for Wednesday’s continued public hearing, as it was last week for the start of the hearing.

Based on the description in Monday’s news release, the practical capacity limits for the physical location at city hall this Wednesday will be the same as for last week’s cancelled in-person component of the public hearing.

Limiting capacity through physical distancing is also an effort to help prevent the spread of the pandemic. The increase in COVID-19 case numbers, in Monroe County and across Indiana, has recently led to increased concern.

It was announced on Friday two weeks ago, that the county board of health would be convening on Tuesday (Aug. 3), and would likely recommend a new health order mandating masks indoors, even for people who are vaccinated.

The board followed through on the vote to recommend the order on masks. Last week’s county order did not include any restrictions expressed in terms of capacity or gathering sizes.

The county’s board of commissioners approved the new order, effective the morning of Aug. 5.

Aug. 4, 2021 start of public hearing

The public hearing that was scheduled for 3 p.m. Wednesday last week (Aug. 4), fell on the first day of school for Monroe County Community Schools. It was advertised as taking place in two ways—in-person and via electronic means.

The hearing was convened in person, with six city councilmembers present, and three joining on Zoom—but immediately recessed and continued an hour later with no in-person access.

Later, during the Zoom-only continuation of the hearing, city councilmembers decided to continue the public hearing to this week on Wednesday starting at 6 p.m.

Here’s how some of the events unfolded last Wednesday.

At 10:56 a.m., an email message was sent out by city council staff to its contact list, reminding journalists that the in-person hearing was taking place, with no indication that it might be cancelled: “For members of the media planning to cover the event in person, please be aware of the expected large crowd and seating limits and consider arriving early if needed.”

Based on the 10:56 a.m. message, a key strategy for addressing concerns about the pandemic was to limit capacity at city council chambers.

The distance between chairs was 8 feet—measured from seat center to seat center. A larger crowd would have been prevented by the seating configuration of city council chambers, which would have allowed only about 20 people.

At 1:18 p.m. Heather Lacy, deputy administrator/attorney for the city council, called Indiana’s public access counselor Luke Britt and left a message asking for additional input on the legal question of recessing and reconvening the hearing with no in-person access. According to Britt, he had spoken to Lacy about the topic on Monday as well.

According to Britt, he was unable to reach Lacy the same day, to respond to her message left early Wednesday afternoon. That means subsequent decisions were made without the additional perspective from Britt that Lacy seemed to be hoping for.

Less than an hour later, it was concern about “possible public health impacts of hosting a large crowd of people in city hall” that was cited in a news release, about the possibility of a change in the proceedings. A 2:03 p.m. news release raised the possibility of a motion to recess and “reconvene the meeting electronically on Zoom at 4:00 p.m., August 4, accessible to all via the link or phone numbers below.”

The 2:03 p.m. news release did not make explicit mention of the news that the in-person component of the hearing could be cancelled.

Remonstrance waivers

The dates on annexation remonstrance waivers are important, because they factor into which waivers are valid.

If more than 65 percent of property owners in an annexation area sign a remonstrance petition, that would kill a city’s annexation ordinance for that area. If a property has a valid waiver, then that property owner’s signature on a remonstrance petition does not count towards the 65-percent threshold.

Based on Bloomington’s dataset of properties for annexation, in four out of the eight areas, more than 35 percent of properties have waivers attached. If all those waivers were valid, assuming one owner per property, that would make it impossible to achieve the 65-percent threshold.

The remonstrance waivers on which Bloomington is relying were produced by the city of Bloomington in response to a request made by The B Square under Indiana’s Access to Public Records Act. [Dropbox folder with .pdf files all waivers]

A crowd-sourced review of the remonstrance waivers—on which Bloomington is relying to defend against possible remonstrance—shows that most of them were signed before July 1, 2003. That would invalidate the waivers under a law enacted in 2019 that voids any remonstration waiver signed before July 1, 2003.

Late last week, the city of Bloomington released its own dataset of waiver numbers, signature dates and recorded dates.  The B Square has not yet analyzed the city’s waiver data.

The city of Bloomington says it is proceeding as if the older waivers are valid. The city appears to take the position that because the current annexation process started in 2017—but was interrupted by a new state law, which was found in late 2020 to be unconstitutional—the 2019 law should not apply.

It’s the county auditor, Cathy Smith, who has the statutory responsibility to evaluate any remonstrance petitions. And according to county officials, she will be applying the current statute, which includes the 2019 amendment. It would be up to the city of Bloomington to file a lawsuit, if it wants to disqualify remonstrance signatures, based on waivers that the county auditor has considered to be too old.