No decisions yet on Johnson’s Creamery smokestack

[This article focuses on the procedural issues that have led to the current state of affairs. Namely, neither the Bloomington city council nor the historic preservation commission has taken action, yet.]

If things had unfolded differently on Wednesday, the Bloomington city council could have enacted a historic district for the Johnson’s Creamery building.

And on Thursday, the historic district commission (HPC) could have approved a certificate of appropriateness for the demolition of the former creamery’s smokestack down to 60 feet. The current smokestack, which was built in 1949, is now 140 feet tall.

Neither the city council nor the historic preservation commission took action this week.

The backdrop to the potential formal actions by the two governing bodies is an unsafe building order from city’s housing and neighborhood development (HAND) department. The order requires Peerless Development, the owner of the building, to demolish the smokestack down to 60 feet.

Peerless has to demolish the smokestack down to 60 feet within 60 days of the March 11 order. The smokestack is leaning, and is deteriorating, based on an Arsee Engineers study completed a few weeks ago.

On Wednesday, the city council declined to use an accelerated process to enact the historic district that same night.

Now cued up for next Wednesday is a city council committee-of-the-whole meeting for discussion of the HPC’s recommendation that a historic district be established for the building. That discussion will likely be centered on the boundary: Should it include the southern half of the lot, or should it be confined to the building footprint?

The historic preservation commission will again take up the question of a certificate of appropriateness (COA) next Thursday. That’s after meeting this Thursday and taking a 6–0 vote to approve the COA that Peerless had requested.

But after the vote, before the meeting adjourned, it was discovered that two HPC members were not clear about the motion that had been made to approve the COA—they thought it included a requirement that Peerless submit a proposal to the HPC for an art installation at the site of the remaining 60 feet of smokestack.

The motion did not include the requirement of a proposal for an art installation.

Advised by assistant city attorney Daniel Dixon, the HPC then followed the parliamentary procedures to revisit the issue. They voted to reconsider the question of the COA, which put the question again in front of the HPC. By then, Peerless and one of the HPC members had left the meeting.

With the question of the COA now still pending, the HPC voted not to adjourn, but to recess the meeting until next Thursday. That means the owner and all nine members of the HPC might be able to attend the resumed meeting next week.

It also means the outcome of the COA vote could be different.

City council’s decision: Follow normal procedures

For the city council, a decision on Wednesday night to enact a historic district for the building would have required unanimous consent.

That’s because the ordinance was first introduced on Wednesday. And under state statute and local law, unanimous consent is required in order to take final action on an ordinance on the same day or at the same meeting when it is introduced. In that context, the definition of “unanimous” is all of the members who are present, but with at least two-thirds being present and voting.

That means at a meeting with just five council members in attendance, final action could not be taken on ordinance that is first introduced at that meeting. Five would be a quorum, and normal business could be conducted. But five is not at least two-thirds of nine, so could not satisfy the legal requirement.

All nine members were present at Wednesday’s meeting, but they did not come close to unanimity.

The vote on the question of taking final action on the historic district ordinance at the same meeting when it was first introduced was 3–6. Voting for the one-meeting procedure were: Jim Sims; Susan Sandberg; and Dave Rollo.

That means the council will use its customary legislative process for considering the historic district. The council will discuss the question at a committee-of-the-whole meeting next Wednesday, and take a vote the following week, on April 6.

This week, there was no appetite for a briefly floated suggestion to schedule a special meeting of the council immediately following the committee-of-the-whole meeting next Wednesday. The idea had been potentially to enact the historic district at the special meeting immediately following the committee-of-the-whole session.

On Wednesday, it became quickly apparent that the council would not achieve unanimity on the question of considering the historic district at just one meeting. Matt Flaherty said “Barring something unforeseen, I intend to vote against this motion. We received a fair amount of new information today, with conflicting opinions…and interests of the property owner and staff.”

Flaherty said he had not had time to review the materials. He concluded, “I think it would be imprudent to consider it for final action tonight.”

The additional materials included a proposal from the owner, Peerless Development, for a historic district boundary different from the one recommended by the HPC. Peerless is proposing to confine the district just to the footprint of the building and the smokestack.

The boundary in the HPC recommendation for a historic district was for the southern half of the parcel. Normally such a district would include the whole parcel, but Peerless has an approved site plan to develop housing on the northern part of the parcel.

Here’s the set of documents to which Flaherty referred and which were conveyed to the Bloomington city council by Peerless on Wednesday, March 23, 2022:

• Arguments for removing historic designation
• Email message from property owner
• City staff proposed historic district boundary map
• Peerless proposed historic district boundary
• Subdivision schematic and alley vacation overlay

Historic District Commission: Thursday, March 24, 2022

Even after the city council declined to act on Wednesday, on Thursday the HPC still considered the application for a COA (certificate of appropriateness) by Peerless Development—for demolition of the smokestack down to 60 feet. That would be consistent with the demolition order from the city’s HAND department.

If it had been approved by the HPC on Thursday, a COA would have been contingent on the city council’s eventual enactment of a historic district.

Much of the discussion at Thursday’s HPC meeting centered on the legal question of whether the HPC could attach a condition to its approval of the COA.

The condition recommended by Bloomington’s historic preservation program manager Gloria Colom would require a proposal for a kind of commemorative art installation. It appeared like this in the meeting information packet:

Staff recommends conditional approval of COA 22-27, with a submission of a proposal to the HPC in 45 days for a creative interpretation installation or art piece of the “Johnson’s” logo signage and the height that will be lost due to the reduction in the height of the smokestack.

Christine Bartlett, who is the attorney representing Peerless, told the HPC that she does not think the HPC has the authority to attach a condition to a COA approval. She cited the local law that established the historic district commission, which follows state law: [BMC 2.16.030].

(d) The commission may not make any requirement except for the purpose of preventing development, alteration or demolition in the historic district obviously incongruous with the historic district.

Bartlett added that because Peerless is under an order to demolish the smokestack down to 60 feet, it would not be appropriate to place a condition on the COA approval, even if it were legally permissible.

Assistant city attorney Daniel Dixon said that the city’s position is that the HPC has the power to attach a condition to a COA approval.

Dixon’s clarity about the city’s legal position was persuasive for commissioner Duncan Campbell, who is a non-voting advisory member of the HPC, and who was responsible for the rehabilitation of the Johnson’s Creamery building in the 1990s.

Campbell said, “Daniel [Dixon] has told us that he disagrees with what the petitioner’s lawyer said, and, you know, I’m not a lawyer. But I’m glad he said that, because it makes me feel like we’re acting according to and are being supported by city legal. We can’t really do much more than that.”

Responding to Campbell was commissioner Reynard Cross. Based on deliberations up to that point, Cross was strongly in favor of the requirement for an art installation and questioned why the smokestack could not be preserved at a height taller than 60 feet.

Cross appeared to take some comfort in Campbell’s remarks about having support from the city’s legal department. Cross told Campbell (emphasis added): “I want to pass [the COA] as is but I thought that there was an impediment. Now that you’ve informed me that there’s no impediment, I’d go ahead and vote for it as is.”

Based on his questions and comments up to that point, Cross’s use of the phrase “as is” was a reference to the staff recommended proposal to require an art installation. Cross wanted the staff proposal to be adopted “as is,” without deleting the requirement.

When commissioner Matthew Seddon made the motion to approve the COA, he said in his preamble to the motion (emphasis added), “I’m swayed by the public safety argument. And I think we should surpass this as is.”

For Seddon, though—based on his questions and comments up to that point—the phrase “as is” referred to the developer’s COA application. So his motion referred to the developer’s COA application “as is”—without adding a requirement for an art installation.

Like Cross, based on her previous questions and comments, commissioner Marleen Newman also appeared to be strongly in favor of including the requirement of an art installation. But when the vote came, both Cross and Newman voted for Seddon’s motion on the COA.

It was apparent to observers, including assistant city attorney Daniel Dixon, that there could have been some confusion about what the motion was. Dixon had been attending the meeting on Zoom from his upstairs city hall office, but after the Johnson’s Creamery COA vote, came down to the McCloskey conference room where the meeting was being held.

After the HPC wrapped up its one remaining item, but before the meeting adjourned, Dixon got the clarification he was looking for: Newman and Cross thought they were voting on a different motion—one that included the requirement of an art installation.

By that time, commissioner Elizabeth Mitchell had departed. With Robert’s Rules in hand, Dixon advised the remaining five HPC members of their options. Five still constitutes a quorum on the nine-member commission.

The remaining five voted to reconsider the COA—that’s a vote on the question of disregarding the previous vote and re-opening the question for a second vote. The vote on reconsideration passed 5–0.

That cleared the way to take a new vote on the COA. The commissioners could have re-voted the question on the spot and it probably would have passed 3–2. That’s because approval of a motion for the HPC requires a majority of just those who are present and voting. That’s different from the law on city council voting, which needs a majority of members, which is five, to pass anything.

But on the advice of assistant city attorney Daniel Dixon, commissioners put off taking a new vote on the COA so that the owner, Peerless Development, could be present for it. Instead of recessing the meeting, they adjourned it, and it will resume next Thursday at 5 p.m.

Photos: Bloomington HPC Meeting (March 24, 2022)