Andrew Guenther is the rightful appointee to Bloomington’s plan commission, according to a lower court ruling issued on Thursday morning.
The ruling was made by Greene County special judge Erik Allen, who was appointed to hear the case after Monroe County circuit court judges recused themselves.
Judge Allen was elected as a Republican. The case is inherently partisan in character.
In the lawsuit, Monroe County Republican chair William Ellis sought to assert a right under state law provided to a party chair, to appoint Guenther to a spot on the Bloomington plan commission.
Bloomington mayor John Hamilton’s position was that he retained the right to make the appointment, even after leaving the seat vacant for more than 90 days.
In any event, it was undisputed that non-affiliation with the Democratic Party was essential—in order to conform with the partisan balancing requirement for the five mayoral-appointed seats on the nine-member plan commission.
Hamilton’s eventual pick to fill the vacancy—which was created when he chose not to re-appoint Nick Kappas at the start of 2020—was real estate broker Chris Cockerham.
Cockerham has been serving in the seat contested by Guenther since May 2020.
At its regular monthly meeting on Monday, Bloomington’s plan commission voted to continue the proposed redevelopment of the Kmart property on East Third Street to its second hearing. That is now set for June 14.
The outcome of Monday’s vote was not exactly hanging in the balance, because the 900-bedroom housing project does not include a rezone request.
But the proposal would demolish the vacant Kmart building and excavate the parking lot, for construction of a 340-unit multi-family and student-oriented housing development, offering a total of 906 bedrooms.
The layout of the project would include five residential buildings, one leasing and amenity building, and a 385-space parking structure. The site will include another 100 surface parking spaces, and 57 parallel parking spaces, for a total of 542 parking spaces.
The student-oriented apartments would be constructed in the three buildings on the northern part of the site. The multi-family housing would be constructed in the two buildings on the southern part of the site.
The units will all be rental, none for sale as condos, and will be offered at the prevailing market rental rate in Bloomington. So the project will not include any “affordable units” defined in terms of HUD standards for area median income (AMI).
On Tuesday morning, a three-judge panel from Indiana’s Court of Appeals issued a unanimous ruling that goes against Bloomington’s mayor John Hamilton and the city of Bloomington.
The ruling could be pivotal in the case of a disputed city plan commission seat that dates back to spring 2020. But Tuesday’s ruling leaves unresolved some crucial matters of statutory interpretation.
When the case goes back to the circuit court, it’s possible the special judge in the case, Erik Allen, could eventually issue an order that recognizes Andrew Guenther as the rightful appointee to the Bloomington plan commission, instead of Chris Cockerham.
Or Allen could decide that Cockerham is the right person for the spot.
That will depend on how Allen analyzes the questions of law in the case, which involve partisan balancing of boards and commissions
Tuesday’s order from the court of appeals panel simply affirmed Allen’s decision to deny the city of Bloomington’s motion to dismiss the case. The motion to dismiss was based on the idea that Guenther, and Monroe County GOP chair William Ellis, lacked legal standing to file their lawsuit.
In spring 2020, Ellis claimed a right under a state statute to make the plan commission appointment, and designated Guenther as his appointee. Under normal circumstances, it’s a mayoral appointment.
On a 7–1 vote at its Monday meeting, Bloomington’s plan commission recommended a new zoning map for the city that includes several areas designated as R4 (Residential Urban) and MS (Student Housing) districts.
Those are two zoning districts that were newly defined in the unified development ordinance (UDO) that was adopted by the city council in 2019, but not yet placed on the zoning map.
The zoning map ordinance would also change more than 100 planned unit developments (PUDs) to a basic zoning district.
Dissenting on the vote was the city council’s representative to the plan commission, Susan Sandberg. The 7–1 tally did not add up to 9, because commissioner Israel Herrera had to leave the meeting early, to attend to another commitment.
At its meeting on Thursday (April 1), Bloomington’s plan commission voted 6–3 to forward an ordinance to the city council, with a positive recommendation, that will affect the status of duplexes in much of the city.
The recommended ordinance would revise the unified development ordinance (UDO), so that duplexes are a permitted (by-right) use in four districts.
The areas where duplexes would be permitted are the R1 (Residential Large Lot), R2 (Residential Medium Lot), R3 (Residential Small Lot), and R4 (Residential Urban) districts.
The city council could take up the question before the end of April, depending on how long it takes the plan commission to finish its work on the 10-ordinance package it’s now considering.
The city’s plan staff had proposed an ordinance that would change duplexes in R1, R2 and R3 from disallowed use to conditional use. A conditional use requires approval by the board of zoning appeals (BZA).
The amendment approved on Monday also changed duplexes in R4 from conditional use to permitted (by-right) use, which is consistent with the city’s current UDO. The planning staff’s unamended proposed ordinance had made the use of duplexes in R4 conditional.
On a 5–4 vote taken Monday night, Bloomington’s plan commission changed its recommendation on duplexes in the R1, R2, R3, and R4 zoning districts—from conditional use to permitted (by-right) use.
It’s part of a proposed ordinance that will eventually wind up in front of the city council.
Also on Monday, plan commissioners voted 6–3 to remove from their recommended ordinance a proposed two-year buffering requirement for duplexes. Under the buffering requirement, if a duplex received a certificate of zoning compliance (CZC) in R1, R2, R3, or R4, then any other parcel within a 150-foot buffer of the duplex would be prevented for two years from getting a CZC for construction of a duplex.
After the ordinance was amended on Monday night, no vote was taken by the plan commission on the ordinance as amended. That vote could come at a meeting on Thursday (April 1), possibly after consideration of another amendment.
The votes on the two successful amendments followed the plan commission’s consideration of an amendment that was defeated on a 1–8 tally. The defeated amendment would have changed the commission’s recommendation on duplexes in the R1, R2, and R3 zoning districts, from conditional use to disallowed use.
So on Monday, the commission’s first decision on duplexes could be made in an hour or even less. But that will depend in part on whether plan commissioners have questions for planning staff, based on the public commentary they heard on Thursday.
Bloomington’s plan commission did not take any substantive votes at its Thursday special session, which was dedicated to just one of 10 ordinances currently under consideration to amend the city’s unified development ordinance (UDO).
But the commission did hear about three hours worth of public commentary from 54 different people, about a possible amendment to the ordinance that was on Thursday’s agenda.
The areas of the city affected by the ordinance are commonly called the “core neighborhoods.” In zoning terms, it’s the R1 (residential large lot), R2 (residential medium lot) and R3 (residential small lot) zoning districts.
Whether the plan commission will recommend to the city council that a duplex in the R1 through R4 districts is a permitted (by-right) use, a conditional use, or a completely disallowed use will have to wait until the next meeting of the plan commission.
Bloomington’s plan commission has set up Thursday’s 5:30 p.m special session as a meeting dedicated to just one of 10 ordinances currently under consideration to amend the city’s unified development ordinance (UDO).
The ordinance would revise the way the UDO handles duplexes, triplexes and quadplexes—the so-called “plexes.”
One sign that Thursday’s public hearing is expected to be contentious was some encouragement on Monday from plan commission president Brad Wisler: “I would just ask everybody to come armed with patience.”
The plan commission normally allows five minutes to each public commenter. During discussion towards the end of Monday’s meeting, plan commissioners were inclined to allow the full five minutes at Thursday’s hearing. The other option batted around was to suspend the rules to reduce the time to three minutes.
In the current version of the UDO, no plexes are allowed at all in the R1 (residential large lot), R2 (residential medium lot) or R3 (residential small lot) zoning districts. That’s the result of a November 2019 vote taken by Bloomington’s city council, to remove even the conditional use of duplexes in those residential zoning districts.
The ordinance to be considered by the plan commission on Thursday would allow duplexes as a conditional use in R1, R2, R3, as well as in the new R4 (residential urban) district.
R4 has not yet been placed anywhere on the zoning map. R4 would also allow triplexes and quadplexes, but also just as conditional uses. The mapping of R4 is a step that will be handled in a separate ordinance, currently scheduled to be heard on Monday, March 29.