Annexation update: Bloomington’s count of signatures points to potential success of some remonstrance efforts, looming litigation

Property owners in three so-called island areas inside Bloomington, which Bloomington’s city council decided to annex last year, might have mounted successful remonstrance efforts that will leave nothing to argue about in court.

It’s far from settled, but that’s one takeaway from the numbers provided in a city of Bloomington news release that was issued on Tuesday morning.

The final tally from Monroe County’s side of the remonstration process is not required until around the end of February.

Even the numbers in Bloomington’s Tuesday news release can’t be considered the city’s final view of how many valid remonstrance signatures have been submitted. An early version of the city’s news release included a mistake that was chalked up to a typo in a spreadsheet formula.

The news release includes numbers of remonstrance signatures the city has received from the Monroe County auditor. Also included is a breakdown of how many signatures are subject to a remonstrance waiver older than 15 years, and how many are subject to a remonstrance waiver less than 15 years old. A remonstrance waiver is a signed document that gives up the right of a property owner to remonstrate against annexation, in exchange for the ability to hook up to the city’s sewer system.

In the table below, numbers in blue are from Bloomington’s Tuesday news release.

The city’s news release does not include any calculations of the percentages that determine whether there are enough remonstrance signatures to stop annexation.

But if the number of unique owners in annexation areas is used as the denominator, and the city’s reported number of signatures that are unaffected by any remonstrance waivers is used as the numerator, all three “island” areas—Area 3, Area 4, and Area 5—have valid signatures from more than 65 percent of property owners.

And under Indiana state law, 65 percent is enough to stop annexation in those three areas—without having to answer the legal question: Are remonstrance waivers valid if they are more than 15 years old?

The city of Bloomington’s answer to that question is yes. But an Indiana state law that was enacted by the state legislature in 2019 invalidates waivers more than 15 years old.

And that’s the law that Monroe County auditor Cathy Smith told the county council on Tuesday night that she’ll be following. On that topic Smith started out like this, “All of us are elected officials, we all swore to uphold state, local laws, and the Constitution.”

Smith added, “OK, the state law says if [the waiver] is over 15 years, I cannot count it. So I want to be very clear with you on what my position was. So I will not be counting any waiver that’s over 15 years.”

Will Bloomington need to challenge the 2019 law in court in order to defend annexations in other non-island areas? It looks that way, based on the numbers in the city’s Tuesday news release.

If only the waivers that are less than 15 years old are considered valid, then three other areas—Area 1A, Area 1C, and Area 2—would have signatures from more than 65 percent of property owners, which is enough to stop Bloomington’s annexation. An additional territory, Area 1B, would have signatures from more than 50 percent of property owners, which is enough to cause the annexation to undergo review by a court.

This is the same basic picture for the potential success of remonstrance efforts that had already emerged in mid-January, based on auditor Smith’s raw numbers released in mid-January. There are differences between Bloomington’s and Smith’s numbers from a month ago, but Smith said at the time they were still not final.

Based on Tuesday’s news release, the city of Bloomington will be checking every detail that might invalidate a remonstrance signature, independent of the waiver issue.

The news release states: “The city’s review process is ongoing and will involve closely scrutinizing all details surrounding signatures including notarization, timeliness, circulation of petitions, and more.” The news release quotes Bloomington’s mayor, John Hamilton, saying, “Though early, speculative reports have offered certain remonstrance numbers, the careful review and tallying of remonstrance signatures is a long and detailed process under state law.”

Bloomington’s news release alludes to the potential for litigation like this: “Once [the county auditor’s final tally] is completed, it will be appropriate to consider whether the numbers need further reconciling or review, either administratively or through any court proceedings.”

Why does Bloomington consider all the waivers to be valid, despite the 2019 law? That’s due in part to the fact that the current annexation process started in 2017, before the 2019 law was passed.

Another argument that Bloomington could try to make is that a remonstrance waiver should be analyzed as a contract, and the state legislature cannot enact a law to void a contract between two parties.

The occasion of Bloomington’s news release on Tuesday was the city’s announcement that its final batch of waivers had been provided to the Monroe County auditor’s office, attached to a final batch of remonstrance signatures, which the auditor had sent to the city in mid-January.

According to Bloomington’s news release, the county auditor now has 15 business days from Feb. 4, when the city’s final step was completed, to produce a final tally.