Second lower court order against Bloomington: ‘[T]he annexation of Areas 1A and 1B shall not take place’

In the trial on the merits for two big annexation areas west and southwest of Bloomington, a circuit court judge has ruled in favor of remonstrators—that is, against the city of Bloomington.

It was mid-afternoon on Wednesday, when judge Nathan Nikirk, out of Lawrence County, issued his order  that says Area 1A and Area 1B can’t be annexed into the city of Bloomington.

In the 47-page order, the line near the end that counted was: “Accordingly, the annexation of Areas 1A and 1B shall not take place.”

Nikirk found that for both areas, the city of Bloomington had failed to demonstrate adequate population density, degree of urbanization, or the city’s need for the land.

In addition, Nikirk found that there would be a significant financial impact on residents in annexed areas, and that annexation would not be in their best interest.

Reached by The B Square Wednesday afternoon, attorney for the remonstrators, William Beggs, said, “We appreciate the court’s careful consideration of the evidence, and we are grateful for the work that went into writing the order.”

Remonstrators issued a news release late Wednesday evening. President of County Residents Against Annexation (CRAA), Margaret Clements is quoted in the news release saying, “We are happy that the residents in 1A and 1B, who did not feel that it was in their best interests to be involuntarily annexed into the City of Bloomington, have been heard.”

The city of Bloomington is expected to appeal the ruling, just as it has appealed another adverse circuit court annexation ruling in mid-June, also by Nikirk. That ruling does not involve Area 1A or Area 1B, but rather the other five areas that Bloomington wants to annex: Area 1C, Area 2, Area 3, Area 4, Area 5.

The adverse ruling  that the city has already appealed  involved a question of constitutional law. That question was: Does a 2019 state law invalidating remonstrationance waivers older than 15 years infringe on the contracts clause of the state and U.S. constitutions?

The difference between the two groups of areas is the percentage of property owners who remonstrated against the annexation.

For all of the areas in the group of five, more than 65 percent of landowners remonstrated, which meant the annexation was stopped outright. For Area 1A and Area 1B, more than 50 percent but less than 65 percent remonstrated—which meant those two areas were entitled to a trial on the merits.

For both groups of areas, the number of signatures relied on the 2019 law that invalidated older remonstation waivers. Bloomington initially filed the constitutional lawsuit for all seven areas, but waived the constitutional argument for Area 1A and Area 1B, to expedite the trial on the merits.

Nikirk’s Wednesday ruling came about three months after the trial on the merits concluded, in early May.

Bloomington started the annexation effort that’s currently being litigated in 2017, early in then-mayor John Hamilton’s first term. Current mayor Kerry Thomson noted Wednesday’s adverse ruling in her remarks to the city council at its evening meeting, but did not elaborate, saying, “More to come on that later.”

The meat of Nikirk’s ruling starts in paragraph 138 (bold added for clarity).

138. In addition to the contiguity requirement, I.C. 36-4-3-13(b) requires the City of Bloomington to prove that Annexation Area 1A and 1B satisfy one of the following conditions:
a. The resident population density of the territory sought to be annexed is at least three (3) persons per acre (I.C. 36-4-3-13(b)(2)(A);
b. At least 60% of the territory sought to be annexed is within a formally recorded residential subdivision (I.C. 36-4-3-13(b)(2)(B) and Town of Brownsburg v. Fight Against Brownsburg Annexation, 124 N.E.3d 597, 606 (Ind. 2019);
c. The territory sought to be annexed is zoned for commercial, business, or industrial uses. (I.C. 36-4-3-13(b)(2)(C))

Nikirk found that the city failed to demonstrate that Area 1A satisfied any of the criteria (A), (B), or (C) under I.C. 36-4-3-13(b). That finding was probably not surprising, in part because the city’s own calculations of the population density for Area 1A showed it at less than 3 people per acre, which fails part (A).

But Nikirk also found that Area 1B did not satisfy the part (A) population density criterion of I.C. 36-4-3-13(b).

That will likely be a point of the city’s appeal, if one is filed, because the big news out of the second day of the trial was the fact that the population density of Area 1B was, in fact, greater than 3 people per acre.

From the witness stand, Bloomington’s GIS coordinator, Meghan Blair, Bloomington pegged the population density of Area 1B as 3.28 people per acre. That’s bigger than the 2.6 people per acre for Area 1B that can be calculated from a FAQ that was posted on the city’s website in 2021,  as the city restarted its annexation effort.

Here’s how Nikirk analyzed Blair’s new calculations with respect to the statutory requirement:

164. The population calculations contained in communications by the City of Bloomington before the City Council’s vote were intended to be relied upon by members of the public and the City Council. According to those communications, the resident population density of Area IB is 2.60 persons per acre….

165. The population density of Area 1B according to the calculation performed by Ms. Blair in 2023, two years after Ordinance 17-10 was passed, was 3.28 persons per acre.

166. Ms. Blair admitted that populations are not evenly distributed throughout a geographical area, thus calling into question the validity of her methods for calculating the population density.

167. Moreover, Ms. Blair’s calculations were not included in the Fiscal Plan, or in the Annexation FAQs, both of which were published to the public and which the City of Bloomington intended the public to rely upon. Given the conflict in the City of Bloomington’s own evidence, the Court concludes that Area IB does not meet the three persons per acre threshold and therefore does not satisfy I.C. 36-4-3-13(b)(2)(A).

The failure to satisfy one of the criteria (A), (B), or (C) in I.C. 36-4-3-13(b) was not the end of Bloomington’s chances for either area.

That’s because, as Nikirk’s ruling points out, the city of Bloomington’s annexation of Area 1A and Area 1B could still have merit under a different part of the statute, even if failed to demonstrate one of (A), (B), or (C) under I.C. 36-4-3-13(b).

From Nikirk’s ruling: “I.C. 36-4-3-13(c) provides annexation may take place if the territory sought to be annexed is needed and can be used by the City of Bloomington for its development in the “reasonably near future.”

But Nikirk found that neither the land from Area 1A nor the land from Area 1B is needed by Bloomington, as defined by the state statute. From Nikirk’s ruling:

154. With regard to Area 1A, the City of Bloomington did not satisfy I.C. 36-4-3- 13(c)(1)(B) for several reasons.

155. First, Mayor Thomson testified that the City of Bloomington does not need Area 1A or 1B [Testimony of Thomson]. Mr. Hamilton also testified that annexation was designed and pursued to “right size” the City of Bloomington’s boundaries [Testimony of Hamilton]. A desire to “right size” a city’s boundaries is not a “need” as required by I.C. 36-4-3-13(c)(l)(B).

Nikirk rejected Bloomington’s contention that Area 1A and Area 1B are needed, based on a need for affordable housing, by citing the city’s policy against extending sewer service outside its boundaries. From the ruling:

158. [T]he City of Bloomington’s policy of refusing to extend sewer service outside its boundary in 2024 for a 35-home Habitat for Humanity project just outside the City of Bloomington boundary results in exactly the opposite of solving a community need for affordable housing. It is the City of Bloomington’s prerogative to refuse sewer service. However, doing so undermines the contention that the City of Bloomington needs Area 1A because the community needs “affordable housing.”

Nikirk also found in favor of the remonstrators with respect to financial impact. Under the annexation statute, the judge has to order that a proposed annexation not take place, if it’s demonstrated that “[t]he annexation will have a significant financial impact on the residents or owners of land.”

And Nikirk found that: “On balance, annexation does represent a significant financial impact to the owners of land in Areas 1A and 1B.”

Finally, Nikirk found in favor of the remonstrators with respect to the question of “best interests.” Nikirk wrote: “[T]he Court finds the annexation is not in the best interest of the owners of land in Areas 1A and 1B.”

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