Friday: Final day of Bloomington annexation trial

The trial on the merits of Bloomington’s plan to annex two territories on the west and southwest sides of the city has completed its fourth day. Friday is the final day left on the trial calendar.

It now looks like the trial will be over by the end of the day on Friday.

The proceeding is a judicial review, which was forced by remonstrators, when they achieved the threshold of at least 51 percent of landowner signatures in Area 1A and Area 1B, but fell short of the 65 percent that would have stopped Bloomington’s annexation outright.

By the end of the day on Tuesday, when the pace of testimony from the city’s witnesses appeared to be slower than expected, judge Nathan Nikirk raised the specter of a Saturday session.

On Wednesday, the morning was taken up with testimony from Eric Reedy with the Reedy Financial Group—about the statutorily required fiscal plan that his firm had prepared in connection with annexation. To the witness stand, Reedy lugged a big 600-page binder with dozens of tabs.

Taking the stand on Wednesday afternoon were Bloomington chief of police Mike Diekhoff, Bloomington fire chief Roger Kerr and Bloomington mayor Kerry Thomson.

By early Thursday morning, the city had rested its case. At the end of Thursday, attorneys for the landowner remonstrators had managed to put 11 different witnesses on the stand, which meant that a Saturday session no longer looks like it will be necessary.

Representing the landowners are William Beggs and Ryan Heeb, with local law firm Bunger & Robertson.

On Thursday morning, before calling any witnesses, Heeb took a shot at ending the trial in favor of the landowners—just in Area 1A, not in Area 1B. He made a motion that asked the judge to issue a kind of summary verdict that would not require further evidence, testimony or argument from the land owners, in order for him to rule in their favor. The motion was made under Trial Rule 41B.

Heeb’s motion was made based on what he contended was Bloomington’s failure to satisfy its necessary burden under state annexation law, in order to even reach the ultimate question to be answered by the judge at the end of the trial: Is the annexation “in the best interests of the owners of land in the territory proposed to be annexed”?

Under state law, one way for the city to satisfy part of its burden is to show at least one of the following: that resident population density of the territory sought to be annexed is at least 3 people per acre; 60 percent of the territory is subdivided; or the territory is zoned for commercial, industrial, or business (CIB) uses.

The city’s GIS specialist, Meghan Blair, had testified that the population of Area 1A is less than 3 people per acre. Blair had attempted to analyze the percentage of the residential platted subdivisions in Area 1A, but told the court she was not able to do so, because the necessary information was not available. Finally, the percentage of land in Area 1A that is zoned for CIB uses is just 57.69 percent, according to Blair’s testimony.

That meant the city could not use that part of the state law to satisfy its burden, Heeb said.

Heeb did not try to make the same motion for Area 1B. That’s because according to Blair’s testimony, the population density of Area 1B is greater than 3 people per acre.

Blair’s Tuesday testimony about the population density of Area 1B counted as news, because the city’s FAQ on annexation, which it posted in 2021, showed the population of Area 1B to be less than 3 people per acre. Blair’s new estimated figure was based on the 2020 decennial census.The B Square came up with the same 3.28 people per acre as the city’s GIS team, using a similar analytical technique.

Heeb’s motion depended on more than just the population density, percentage of subdivided land, and CIB zoning of land in Area 1A.

Under state law, even if the city can’t satisfy its burden related to population density, percentage of subdivided land, and CIB zoning, it can still meet the overall condition for annexation—by showing that the territory is “needed and can be used by the municipality for its development in the reasonably near future.”

But Heeb pointed to testimony from Bloomington mayor Kerry Thomson the previous day, when she indicated Area 1A and Area 1B were not “needed.”

Thomson’s testimony about the “need” for the annexation of Area 1A and Area 1B came on cross examination by Beggs. He asked Thomson if she recalled her testimony from her pre-trial deposition, when she had indicated that Bloomington does not “need” Area 1A or Area 1B. Thomson told Beggs her recollection was that she’d said the city does not need the areas for their tax base.

Beggs tracked down the transcript from Thomson’s pre-trial deposition, which he then read aloud. Based on the transcript, Thomson had said in response to a question about whether the city “needs” Area 1A and Area 1B that it’s not her contention that the city “needs” the areas, but rather that they are already urbanized, and Bloomington provides water and sewer service there.

The part of the transcript that Beggs read aloud had Thomson saying that Area 1A and 1B had been intended for annexation for as long as she has lived in Bloomington. The land is already “behaving” as if it is part of the city of Bloomington, Thomson said in the transcript. In the transcript, Thomson indicated that her view of the land was not a “needs-based assessment.”

Responding to Heeb’s motion on Thursday morning was the city’s outside counsel, Stephen Unger of the Bose McKinney & Evans law firm. Unger and his Bose McKinney colleague Andrew McNeil have been in the courtroom every day.

Unger told judge Nikirk that there are previous annexation cases for other Indiana cities that establish how the section of the law about population density, percentage of subdivided land, and CIB zoning is supposed to be applied. Unger told Nikirk that the previous cases (case law) showed that the relevant concept is “urbanization” and that the evidence is overwhelming that Area 1A and Area 1B are actually urbanized.

Nikirk denied Heeb’s motion.

Witnesses who testified on behalf of the landowners on Thursday, included at least eight owners of land inside either Area 1A or Area 1B, as well as former Bloomington city councilmember Susan Sandberg, Monroe County assessor Judy Sharp, and Bloomington police union president Paul Post.

When she was a city councilmember, Sandberg was one of three who voted against annexation in fall of 2021.

Post appeared under a subpoena, which meant that under his union contract he had to be paid—by the city of Bloomington.

By the end of the testimony on behalf of the remonstrators, a city consultant’s report from 2020, which had recommended adding sworn police officers—to bring the total to 121—was still not officially admitted into the record of the trial. It has come up a half dozen times over the first four days, but Nikirk has consistently ruled that if a witness cites the Novak report, that is hearsay, which cannot be admitted as testimony.

But Post did give his own view that the city needs 120 officers. Post described the staffing level for the Bloomington police department. There are 105 sworn officers in this year’s budget. But there are just 86 who are currently employed, a number that would drop to 85 by the next day, Post said. Of those who are employed, just 73 are available to serve, because they are out on long-term disability, military leave, pregnancy leave, or some other reason.

The basic argument that the remonstrators are trying to set up goes something like this: Bloomington does not currently have enough police officers to address the policing needs inside the existing city boundaries, let alone a bigger geographic area that would come from annexation.

On Thursday Cheryl Sciscoe was the first landowner to take the witness stand. Responding to a question from Heeb, who’s legal counsel to the landowners, she stated that she lives on a fixed income. That drew an objection from the city’s lawyers, which Nikirk ultimately sustained, after some back and forth.

The reason that witnesses were not allowed to talk about their income is that Indiana’s annexation law says the court cannot consider the personal or business finances of landowners when it determines whether annexation will have “a significant financial impact” on them.  If the judge finds that there will be a significant financial impact on landowners, that is a possible reason for not ordering the annexation to go through.

Heeb argued that because the prohibition against considering personal or business finances is in the subsection of the law about significant financial impact on landowners, not in a different subsection about the best interest of landowners, the personal finances of a landowner could be considered when evaluating best interest. Whether the annexation is in the best interest of landowners is the ultimate question that the judge has to decide.

Nikirk was not persuaded by Heeb’s argument.

Much of the landowner testimony fit this general pattern: The value of services that the city will start providing will not be as much as the higher city taxes to be paid.

One of the services that land owner Rhonda Gray said that Monroe County highway department was already providing—better than the city of Bloomington on nearby streets—is road maintenance. She brought a copy of a photograph that she’d taken near where she lives, showing that there’s a clear line where the city boundary runs. On the city’s side of the line, there are potholes, but on the side of the line maintained by Monroe County, the pavement is smooth.

Gray’s testimony was a kind of counterpoint to the frequent observation of annexation supporters, that the area to be annexed is already so similar to Bloomington that when you drive from Bloomington into the annexation areas, you don’t notice when you cross the boundary.

Trash collection was another service that landowners mentioned as one they’re already completely satisfied with—as provided by Ava’s Waste Removal, which is a private hauler. The cost for pickup of a 96-gallon trash cart and a 96-gallon recycling cart works out to $21.75 a month, landowners said. That’s less than the $24 charged by the city of Bloomington.

Expected to take the witness stand on Friday are Monroe County commissioners Penny Githens and Julie Thomas. They are both campaigning for re-election on a platform that includes their opposition to annexation.