Bloomington carts away contents of resident’s backyard, after winning years-long court battle
Sometime before 8:45 a.m. on Tuesday morning, the city of Bloomington started removing various materials from the property owned by Joe Davis on South Washington Street.
In the view of city officials, the wood, sheet metal, furniture, bicycle frame, and various other materials that were carted away by a private contractor on Tuesday morning count as violations of the city code. [BMC 6.06.020]
The city analyzes the material as “garbage” while Davis maintains that it is building material, part of art installations, or tools that he is using to maintain his homestead.
Involved in the Tuesday morning enforcement action were officials from the city’s HAND (housing and neighborhood development) department, the city attorney’s office, Bloomington police, as well as around a dozen workers with a private contractor called Fire Dawgs.
The city was acting based on a ruling that was issued a week earlier by Monroe County circuit court judge Emily Salzmann, who found in favor of the city’s position that the board of public works was justified in granting an order to abate Davis’s property.
To abate a property, means to go onto the premises to bring it into what the city considers to be compliance.
This current round of legal action by the city against Davis started in fall 2023. A previous year-long round of attempted enforcement by the city ended in August 2023, with a win for the city in court—but Davis had effectively run out the clock on the city’s abatement order.
The city’s action this Tuesday was preceded by a notice of appeal filed by Davis last week, on the same day that Salzmann issued her ruling. In his notice, Davis had in effect asked the judge to stay the order, pending appeal.
Bloomington started its abatement on Tuesday without a finding from the court on Davis’s initial attempt to file his notice of appeal.
Right after the city’s abatement activity started on Tuesday, Davis headed to the courthouse to try again to stave off enforcement action, by filing a request for an emergency injunction. Around a quarter to noon, when Salzmann issued her order on the emergency injunction, it was not in Davis’s favor.
The news from the court clerk about Salzmann’s ruling that day was received by Davis in a phone call as he was standing on the bed of his 1965 flatbed Ford, parked in his backyard. The bed was by then mostly bare. The stack of wood that he had stored there had been removed.
Four Fire Dawgs box trucks, each holding 18 cubic yards of material, had been filled with the contents of Davis’s backyard. Also carted away were the contents of the bed of a pickup truck that Davis owns, which was parked on Washington Street.
Mid-afternoon, when The B Square returned to the Davis’s property, he said that the city’s planning and transportation department is now likely to try to tow the flatbed Ford and two other vehicles from this backyard. The city contends that they are parked there on an unimproved surface, in violation of the city’s zoning code.
At a couple of points during Tuesday morning’s abatement activity, Davis appeared like he was on the verge of being arrested by BPD officers. They told him several times that he could record on video the material that was being taken away, but he could not touch the Fire Dawg workers.
Davis managed to stay on the right side of the parameters that officers laid out for him.
Davis kept up a persistent patter of commentary on the proceedings, which provided a kind of partial inventory of the items that were removed:
You are stealing my fence…
You’re stealing my metal fence post…
You are stealing my building materials from under my overhang…
You’re stealing my irreplaceable windows from Collins Living Learning Center…
You’re stealing my grill and my broom…
You’re stealing my metal…
You’re stealing my stuff off of the car …
You’re stealing the frame for my two story structure …
You are stealing my corner post for my two-story structure…
You are stealing my metal roofing right there…
Davis also heaped derision on the staff from HAND and the city’s legal department, mocking them with labels like “Big Dog” or “master abaters.”
Davis told The B Square that the windows from the Collins Living and Learning Center, on the Indiana University campus, did not come from the most recent renovations to that dormitory. He guessed he had salvaged them from a window replacement project at the dormitory 10 or 15 years ago. The Collins windows have now been dumped at either a Rumpke or Republic waste facility.
Legal proceedings Monday night, Tuesday morning
On Monday evening, just past 7 p.m., Bloomington filed a response to the court’s earlier directive—to indicate whether the city would respond to Davis’s motion for a stay. The city then proceeded with its abatement activity on Tuesday, the following morning, without a response from the court.
The court’s directive had come last week, the day after Davis filed his notice of appeal: “Court directs the City of Bloomington Board of Public Works to notify this court if they intend to respond to the motion to stay pending appeal filed by Plaintiff.”
In its late Monday response to the court, Bloomington argued that Davis had not satisfied the procedural requirements for a proper notice of appeal, and concluded that there was no actual appeal pending.
Bloomington also argued in its response that Davis had not done anything else that would cause a stay to be put in place, like using Trial Rule 62, to seek a post judgment stay to correct an error under Trial Rule 59, or some relief from judgment under Trial Rule 60.
In that late Monday response, the city indicates that its abatement activity could start as soon as Tuesday: “[A]s no stay has been granted, the City has planned to and intends to abate Petitioner’s property as early as Tuesday, October 22, 2024.”
As it had indicated in its filing it planned to do, the city moved ahead with its abatement work on Tuesday morning.
In her order issued a little before noon on Tuesday, after Davis filed his request for an emergency injunction, Salzmann pointed to the fact that Davis had “failed on appeal previously in an almost identical situation due to his failure to comply with the procedural requirements of the appellate rules and has failed to articulate or identify any error upon which he would succeed on appeal.”
The situation to which Salzmann was pointing when she described the previous “almost identical situation” was one that concluded on the local level in August of 2023. That’s when Monroe County circuit judge Kara Krothe ruled against Davis like Salzmann did, but with one key difference.
What made Salzmann’s ruling not exactly identical to Krothe’s was the fact that Salzmann’s order gave the city 254 more days on its abatement order, which had expired on Aug. 17, 2023.
Last year, when Krothe ruled on the question of adding days to the city’s abatement order, she declined to add any days to the city’s order, by writing: “The Abatement Order which is the one at issue in this case expired on August 11, 2023. The Defendants [city of Bloomington] asked the Court to extend the Abatement Order but provided no authority upon which the Court could do so.”
But in her ruling, for her authority to add days, Salzmann relied on the wording of the order that granted the temporary emergency injunction in the case. That wording was crafted by circuit court judge Catherine Stafford, who had handled the case until she recused herself.
The wording goes like this [emphasis added]: “This court grants this temporary emergency injunction to preserve the status quo until the new court can have [sic] to have a hearing on the matters.”
Salzmann analyzed preserving the status quo as preserving the number of days left on the abatement order at the time when the emergency temporary injunction was granted.
So the turn of events on Tuesday prevented adjudication of a some of the relevant legal questions, before most of the contents of Davis’s backyard were removed and disposed of.
Those questions include:
(1) Was the meaning of “status quo” in Stafford’s order the number of days left on the abatement order, or was it instead the expiration date of the order?
(2) If the correct interpretation of Stafford’s “status quo” was the number of days left on the order, what is the legal authority for a circuit court judge to preserve the number of days left on an abatement order from the city?
Photos: Abatement of Washington Street property (Oct. 22, 2024)
