Judge reverses Bloomington BZA on variance for downtown condos, orders re-hearing at next meeting

Rendering of proposed building from the corner of Kirkwood Avenue and Washington Street.

Panorama of existing site, looking north from Kirkwood Avenue (Oct. 20, 2022)

Democrat Emily Salzmann

Mike Rouker, Bloomington city attorney

Developer Randy Lloyd (Oct. 20, 2022).

Attorney Christine Bartlett (Oct. 20, 2022).

Monroe County circuit court judge Emily Salzmann has reversed last year’s decision by Bloomington’s board of zoning (BZA) to deny a variance for a proposed development on what is now a surface parking lot west of the CVS building on Kirkwood Avenue.

Developer Randy Lloyd’s Cutters Kirkwood 123 had proposed a four-story building with 15 owner-occupied condos on the site, which would have included just 19 percent of the ground floor as commercial space.

That’s why the BZA was asked to grant a variance from a requirement in Bloomington’s downtown overlay—that at least 50 percent of the ground floor square footage be designed for non-residential and non-parking uses.

The BZA denied the request of a variance at its Oct. 20, 2022 meeting. On Nov. 18, 2022, Lloyd filed a legal action for a judicial review of the BZA’s decision.

The order from Salzmann, which was issued on Tuesday, reverses the BZA’s denial. Tuesday’s order is based on a determination that the city’s legal department and planning staff gave BZA members incorrect advice about the factors that BZA members could consider, in their decision about whether to grant a variance.

So Tuesday’s order returns the question to the BZA “to be heard at their next meeting and decided on at that meeting.”

It’s not clear if “next meeting” means the Thursday, Nov. 16 meeting that is on the BZA’s calendar. Before publication, The B Square was not able to reach Bloomington planning department staff on the question of whether the Cutters variance would be heard and decided on Thursday. Continue reading “Judge reverses Bloomington BZA on variance for downtown condos, orders re-hearing at next meeting” →

Bloomington plan commission news: State’s highest court declines case on party affiliations for partisan-balanced boards

Chris Cockerham will remain a Bloomington plan commissioner. Andrew Guenther will not be installed to replace him.

From left: Chris Cockerham, Andrew Guenther

That’s because Indiana’s Supreme Court gave notice on Tuesday that it will not to hear an appeal that was requested in July by Guenther and former Monroe County Republican Party chair William Ellis.

In June of 2020, Guenther and Ellis had filed a lawsuit against Bloomington mayor John Hamilton over the rightful appointee to the Bloomington plan commission.

The key question of law in the case was this one: Is there a statutory requirement that a member of a partisan-balanced board or commission be affiliated with some party or other?

Guenther and Ellis said yes. Bloomington’s mayor John Hamilton said no.

In a ruling that was issued in late May this year, a three-member panel of the court of appeals sided with Bloomington. The court of appeals decision reversed the initial ruling at the circuit court level, by special judge Erik Allen, who had decided the case in Ellis and Guenther’s favor.

The court of appeals said there is no requirement—that for someone to be appointed to a partisan-balanced board or commission, they have to be a member of some political party or other. That means someone who is unaffiliated with any party can be appointed to a partisan-balanced board.

Tuesday’s notification from the Supreme Court, that it won’t hear the case, means this spring’s court of appeals ruling will now stand. Continue reading “Bloomington plan commission news: State’s highest court declines case on party affiliations for partisan-balanced boards” →

Plan commission lawsuit update: Bloomington makes First Amendment argument against GOP reading of statute

In the ongoing lawsuit over the rightful appointee to Bloomington’s plan commission, Bloomington’s most recent brief has introduced an argument that has not been a part of its previous papers.

The argument is based on the clause of the First Amendment that establishes a right of free association, or non-association.

The lawsuit is now in front of the court of appeals, after Bloomington lost an initial ruling seeking dismissal.

Currently serving on the plan commission since last summer, as the mayor’s appointee, is commercial real estate broker Chris Cockerham.

Litigating the right of Bloomington mayor John Hamilton to make the appointment is Monroe County Republican Party chair William Ellis, who appointed Andrew Guenther, a city environmental commissioner, to the same seat. Continue reading “Plan commission lawsuit update: Bloomington makes First Amendment argument against GOP reading of statute” →

Court of appeals ruling stands, leaves intact Bloomington’s ordinance protecting against discrimination based on sexual orientation

Bloomington’s human rights ordinance, with its prohibition against discrimination based on sexual orientation, won’t get a review by Indiana’s Supreme Court.

A deadline has expired with no motion to put the matter in front of the state’s highest court.

That means a mid-September ruling by the Court of Appeals, in favor of Bloomington’s ordinance, is the final word on the case.

It arose from a lawsuit claiming that Bloomington’s ordinance—along with those of Carmel, Columbus, and Indianapolis—were unconstitutional.

The unsuccessful lawsuit was filed in 2015 by the Indiana Family Institute, Indiana Family Action, and American Family Association. The Court of Appeals concluded there was no no reason to believe that the cities’ ordinances had any effect on those companies’ activities.

The September opinion, on which all three judges concurred, states, “In sum, the companies’ own designated evidence establishes that the cities
have neither interfered with nor chilled their First Amendment rights.”

The Supreme Court didn’t decide not to hear the case. Instead, what the city’s Friday press release described was the news of an expired 45-day deadline for the companies who’d lost the case, to file their motion to have the case heard by the Supreme Court. Continue reading “Court of appeals ruling stands, leaves intact Bloomington’s ordinance protecting against discrimination based on sexual orientation” →

New Bloomington commission floated, would oversee funds from higher local income tax rate

On Wednesday night at a special meeting, Bloomington’s city council started its deliberations on a proposal to increase the countywide local income tax by a quarter point. The debate will continue on Sept. 16.

A new seven-member Sustainable Development Fund Advisory Commission (SDFAC) could be created by the Bloomington city council that would control spending of about $4 million in funds that would be generated by the extra quarter point added to the rate through an increase the council is considering.

That amount would take the rate from 1.345 percent to 1.595 percent. The higher rate would generate about $4 million annually for Bloomington. A little more than $4 million would be generated each year for Monroe County government and the town of Ellettsville.

A public hearing and a vote is scheduled for Sept. 16.

Under a proposed ordinance released to the public a few hours before the city council’s special meeting, a new city commission would have some control over expenditures from the extra revenue.

Under the ordinance, a new non-reverting fund would be created, called the Sustainable Development Fund.

Future ordinances and resolutions requiring expenditures from the fund would be subject to approval of a new seven-member commission, called the Sustainable Development Fund Advisory Commission (SDFAC).

Under the new ordinance, without a majority recommendation from the seven-member commission, the city council could not adopt an ordinance requiring an expenditure from the new fund.

Membership on the new commission would consist of: the mayor, three councilmembers and three citizens. That means an ordinance requiring expenditures from the new fund could be blocked by a coalition consisting of a single councilmember and three citizens.

The ordinance creating the new commission got a first reading on Wednesday, but no discussion, because under local code no debate or amendments are allowed at a first reading. It will be considered at a second reading on Sept. 16.

Wednesday marked the first public deliberations by the city council on the possible income tax increase. A city council work session held last Friday was limited to asking questions of the administration.

On Wednesday, four councilmembers indicated some level of support. The other five can be analyzed as undecided. Continue reading “New Bloomington commission floated, would oversee funds from higher local income tax rate” →

Court of appeals: Illegally parked car is an “emergency situation” under Indiana law

cropped 2020-05-02 parking towing IMG_0205 — The view to the east of the parking lot at the southeast corner of the intersection of 6th and Madison streets in downtown Bloomington, the former location of a Chase Bank drive-through (Dave Askins/Square Beacon)

A ruling issued by Indiana’s court of appeals this past week says that if a car without a permit is parked in a private permit-only lot, a towing company can tow the illegally parked car without waiting 24 hours, even if it’s the only car parked in the lot.

The court of appeals decision reversed a lower court ruling by Monroe County circuit court judge Elizabeth Cure. She had ruled that a car parked in a permit lot does not interfere with the business operations of a permit-only parking lot until “the point at which a permit holder cannot find a space due to the presence of a non-permit vehicle.”

The lawsuit was filed in June 2018 when a driver parked his 1999 Honda Accord in the empty parking lot at the southeast corner of 6th and Madison streets, which was previously a Chase Bank drive-through. Continue reading “Court of appeals: Illegally parked car is an “emergency situation” under Indiana law” →