Ten days ago, the city of Bloomington lost an argument in court, to move ahead with the standard judicial review of annexation for two areas west of town.
Two days later, on Sept. 7, the city of Bloomington filed a motion to start the process to appeal the ruling of special judge Nathan Nikirk, out of Lawrence County.
Nikirk had ordered that the standard annexation trials for Area 1A and Area 1B would be delayed, until Bloomington’s related but separate litigation—over constitutional questions related to annexation waivers—is resolved.
The related constitutional litigation is actually a consolidation of seven separate lawsuits, one for each of the annexation areas.
In addition to the appeals process, the city of Bloomington has now started another procedure that could lead to faster scheduling of a standard annexation trial for the two areas. The idea is to take a step towards quick resolution of the related constitutional litigation—but just for Area 1A and Area 1B.
On Wednesday, Bloomington’s legal tactic was to file a motion to dismiss its own lawsuits for Area 1A and Area 1B, over the constitutional question of waivers.
The idea is that if the special judge Kelsey Hanlon out of Owen County were to grant Bloomington’s motion for dismissal of the Area 1A and Area 1B constitutional cases, and agrees to reconsolidate just the five remaining lawsuits, that would satisfy the condition of Nikirk’s Sept. 7 order.
Nikirk’s order states that the standard annexation trial will be delayed until “the lawsuits involving the same parties in this matter filed by the City of Bloomington against the Monroe County Auditor have been fully and finally decided.”
If Hanlon grants Bloomington’s motion to dismiss two of its own constitutional lawsuits, then that will presumably “fully and finally” decide the relevant litigation. Based just on the wording of Nikirk’s order, the standard annexation trials for Area 1A and Area 1B could proceed without further delay.
Despite the wording of Nikirk’s order, the parties are not actually the same for the two sets of litigation. A journal entry on the docket clarifies that in his order, Nikirk meant to refer exactly to the two lawsuits that the city of Bloomington filed against the Monroe County auditor—in connection with Area 1A and Area 1B.
It’s the county auditor who is the defendant, because she is responsible for counting the number of remonstrance signatures. Bloomington contends that the state law followed by the auditor when she counted the signatures is unconstitutional.
What sets Area 1A and Area 1B apart from the other five annexation areas? It’s the different thresholds for the number of remonstrance signatures that were achieved in each area. Remonstrators in Area 1A and Area 1B achieved a lower threshold than remonstrators in other areas.
A key question for counting signatures involves the status of annexation waivers. Such waivers are legal documents signed by a property owner, giving up the right to remonstrate against annexation, in consideration of the ability to purchase sewer service from the city.
Based on a disqualification of several waivers—relying on a 2019 law that invalidated all such waivers signed before July 1, 2003—remonstrators in Area 1A and Area 1B gathered enough signatures (more than 50 percent of landowners) to force a judicial review of the city’s annexation.
But they did not gather enough signatures (more than 65 percent of landowners) to stop the annexation outright. The remonstrators in the other areas exceeded the 65-percent threshold, which stopped the annexation. So Bloomington took legal action challenging the constitutionality of a 2019 law that affects how signatures are counted.
If the 2019 law were found to violate Indiana’s constitution, then the remonstrators in Area 1A and Area 1B will have fallen short of the 50-percent threshold, and there would be no basis for holding a five-day trial. The two areas would be annexed no matter the outcome of the standard annexation trial.
What the remonstrators in Area 1A and Area 1B—up to now, at least—have managed to put on hold is the standard trial that has to take place, if remonstrators gather signatures from between 50 and 65 percent of landowners.
When that standard trial takes place, the court is required to order the annexation to go forward, if certain objective conditions are met—and if the city is able to show that the annexation is in the best interest of the owners of land in the territory to be annexed.
Among the conditions listed out in the statute is one that says the population density in a proposed annexation area is at least three people per acre. [IC 6-4-3-13] That’s a sufficient, but not a necessary condition among the objective criteria.
Other sufficient conditions are if 60 percent of the territory is subdivided, or if the territory is zoned for commercial, business, or industrial uses.
In addition to the objective criteria, some subjective criteria would need to be met. The other, more subjective criteria include whether the annexation would have a “significant financial impact” on property owners and whether the annexation would be in the “best interests of the owners of land in the territory.”