Convenience store rezone OK’d by Monroe County even without sewer connection, developer’s attorney says ‘We’ve made public health a political football.’
A project consisting of a convenience store, gas station, and office, which is planned for a spot west of Bloomington, got a requested rezone from Monroe County commissioners on Wednesday.
The vote was 3–0.
The approve came even after last week it was denied a requested sewer connection by Bloomington’s utilities service board (USB). The development will use a septic field instead of sanitary sewer.
The land in question is located on the southwest corner of the intersection of Airport Road and SR 45.
The rezone approved by commissioners was from the current split zoning of limited business (LB) and general business (GB), to just general business for the whole property.
Part of the plan includes converting an existing house into an office. The developer wanted a land use classification of “commercial/industrial adaptive reuse” to consolidate the office use with the other two uses. The “commercial/industrial adaptive reuse” classification is allowed only in the general business district, which means there can’t be zoning that is split between LB and GB on the property.
Some nearby residents wrote letters opposing the rezone. But commissioners were persuaded by a couple of considerations, including the fact that the completed draft of the CDO (county development ordinance), which was just released this week, calls for zoning the land all GB with none of it LB.
Assuming the CDO is eventually adopted, with that part intact, the rezone now sets the stage for the same development, but sooner.
Another consideration that seemed persuasive for commissioners was the fact that the developer could still develop the convenience store and the gas station—just not the office use—with the existing zoning. As commissioner Julie Thomas put it, “Where they intend to place the gas pumps is already zoned appropriately, so there’s nothing we could do at this point to stop that from happening.”
At Wednesday morning’s meeting, attorney Michael Carmin represented the developer, Heri, Inc., headed by Rajesh Patel.
Even though it was not directly related to the petition in front of the commissioners, Carmin took the occasion to sound off on the topic of sewer service in the context of Bloomington’s annexation efforts. He described the city’s current policy of not extending sewer service outside the corporate boundaries as “holding property and county residents hostage over sewer.”
Carmin contrasted the current policy with the old one that city of Bloomington utilities previously applied, which was to require that a property owner sign a waiver of the right to remonstrate against any involuntary annexation attempt by the city.
The new and current city of Bloomington utilities (CBU) policy, enacted by the utilities service board (USB) in August 2022, stems from pending litigation that eventually arose from Bloomington’s original 2017 plan to annex several territories around the city on an involuntary basis. The basic CBU policy is now for the CBU director not to grant extension of any additional sewer service outside the city boundaries, unless there is a valid petition for voluntary annexation in place.
The logic for the new policy offered by the Hamilton administration and the city’s current legal team is that it’s not clear what signing a remonstrance waiver even means anymore, given the law enacted in 2019 that invalidates any such waivers that are older than 15 years. The status of the 2019 law as a potential unconstitutional interference in the contracts clause of the Indiana and U.S. constitutions is currently being litigated by Bloomington.
“Sewer should never become a political football,” Carmin said, adding, “but it did, and that was done by [Bloomington] mayor [John] Hamilton.”
Hamilton left office at the end of 2023. Sworn in as Bloomington’s mayor at the start of the year, Kerry Thomson has left the same sewer connection policy in place.
Carmin described Hamilton as getting “his nose out of joint” because of the continuing remonstration battles and having the city of Bloomington’s utilities service board amend its policy to be more restrictive.
Carmin appealed to the fact that sanitary sewer connections are better than a septic system, from the point of view of potential for groundwater contamination, saying: “If we believe that sewer is a public health issue compared to septic, then we’ve made public health a political football, and that’s wrong.” Carmin added, “I don’t know why there’s not more outrage being expressed about that.”
The topic of a sewer connection was at least tangentially related to the rezone petition approved by county commissioners on Wednesday. As county planner Drew Meyers laid it out on Wednesday, the desired land use classification of “commercial/industrial adaptive reuse” that the developer wants to pursue comes with a condition (Condition 56) that requires that “sewer service must be present and available to serve the site.”
But Meyers indicated that Condition 56 could be eligible for a variance that could be granted by the county’s board of zoning appeals—but it would be a process that the developer would have to go through. Another approach, Meyers said, would be for the developer to pursue “business or industrial center” as the land use classification, which does not include Condition 56.
Related to the conditions for certain land use classifications that require the presence and availability of sewer, Carmin pointed to the upcoming consideration of the recently released complete draft of the county’s proposed new CDO (county development ordinance).
The completed CDO draft still includes the requirement of sewer availability for Commercial/Industrial Adaptive Reuse and Mixed-Use Commercial sites.
Carmin told commissioners: “You need to stop the CDO process in its tracks.” He continued, “You cannot adopt that zoning map and all the zones that are in that, if we’re going to be allowing that zoning decision to be held hostage by the city’s use of sewer as political football.”
