Early Thursday, special judge Nathan Nikirk issued an order that says the Bloomington annexation trials for Area 1A and Area 1B will now go forward.
The ruling came after a hearing held Wednesday morning on the question of whether Nikirk should grant the city of Bloomington’s request that he lift a stay, which Nikirk had imposed in early September, on the annexation trials for the two areas.
With the stay now lifted, the trials for Area 1A and Area 1B, which lie to the west and southwest of the city, can now be scheduled. They probably would not start until early 2024. But Nikirk has set a conference for Oct. 23, to sort out the timing.
Bloomington’s request for certification of its appeal of the original stay order, so that the city could go in front of the court of appeals on the question of the stay, became moot under the order that Nikirk issued on Thursday. So Nikirk denied Bloomington’s request for the appeal certification.
The stay, which is the legal term for a pause, was meant to allow a constitutional question concerning annexation waivers to get resolved, before conducting the statutorily defined trials for the two annexation areas. The constitutional question bears on a 2019 law that invalidated older annexation waivers, which is the subject of some separate lawsuits filed by Bloomington.
If the 2019 law is found to be unconstitutional, that would diminish the number of valid signatures that the remonstrators have collected. Remonstrators in Area 1A and Area 1B are in front of Nikirk in the first place, because they collected signatures from more than 50 percent, but less than 65 percent of property owners, which was still enough to force a trial as defined in the state’s annexation statute.
Remonstrators in other areas achieved more than 65 percent of landowner signatures, which is enough to stop annexation outright, so Bloomington will, in its separate lawsuits, continue to pursue the question of constitutionality of the 2019 law.
Possibly a factor in Nikirk’s Thursday ruling was a filing that the city of Bloomington made with the court just a few hours after Wednesday morning’s hearing. Bloomington filed a stipulated waiver of any defense over the constitutionality of the 2019 law.
Bloomington’s decision to waive any constitutional arguments during the Area 1A and Area 1B trials appears to eliminate the kind of eventual scenario that the remonstrators sought to avoid. That’s a scenario where they might go through a 5-day annexation trial, win on the merits, but eventually see that win undone based on the constitutionality claims.
Remonstrators in Area 1A and Area 1B have forced the statutorily defined annexation trial to take place by gathering signatures from between 50 and 65 percent of landowners. If the 2019 law were found to be unconstitutional, that would disqualify enough of the Area 1A and Area 1B remonstrance signatures to cause the areas to fall short of the 50-percent threshold.
The trials for Area 1A and Area 1B will be on the merits of Bloomington’s annexations, which were approved by the city council in September, more than two years ago.
When those trials take 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.”