Lawrence county circuit court photo of special judge for Bloomington annexation lawsuit Nathan Nikirk
The city of Bloomington is now executing a two-pronged approach to overcoming a setback in early September, in its effort to get a standard annexation trial moving ahead.
In early September, special judge Nathan Nikirk put off a standard judicial review of the Area 1A and Area 1B annexations, which were approved by Bloomington’s city council two years ago. The areas are located to just to the west of the city boundary.
Nikirk’s Nov. 5 ruling said that the standard annexation trials for Area 1A and Area 1B would be delayed, until Bloomington’s related, but separate litigation—over constitutional questions related to annexation waivers—is resolved. At the time, resolution seemed like a couple years away.
But that separate litigation is now resolved—at least as far as it affects Area 1A and Area 1B. On Sept. 19, special judge Kelsey Hanlon out of Owen County granted Bloomington’s motion for dismissal of the Area 1A and Area 1B constitutional cases, and agreed to reconsolidate just the five remaining lawsuits.
That appears to satisfy the “until” condition in Nikirk’s Sept. 5 order. That is, the separate litigation, as it relates to Area 1A and Area 1B, is now resolved.
Nikirk had ordered that the standard annexation trials for Area 1A and Area 1B would be delayed, until Bloomington’s related but separate litigation—over constitutional questions related to annexation waivers—is resolved.
In addition to the appeals process, the city of Bloomington has now started another procedure that could lead to faster scheduling of a standard annexation trial for the two areas. The idea is to take a step towards quick resolution of the related constitutional litigation—but just for Area 1A and Area 1B.
On Wednesday, Bloomington’s legal tactic was to file a motion to dismiss its own lawsuits for Area 1A and Area 1B, over the constitutional question of waivers.
They had asked the judge to grant them additional time for signature collection, under a state statute that provides certain emergency powers [IC 34-7-6-1]. The emergency in question is the COVID-19 pandemic.
A status conference with the judge and the parties to the lawsuit is set for March 3.
Video screen inside the Charlotte Zietlow Justice Center, showing visitors where proceedings are taking place for the day.
Charlotte Zietlow Justice Center at 7th Street and College Avenue.
Room 313 at the north end of the second floor hallway, where Friday’s proceeding was held.
At the end of a Friday hearing that lasted about an hour and 20 minutes, special judge Nathan Nikirk did not issue a ruling in the case that remonstrators against Bloomington’s annexation have brought to the court.
Friday’s hearing involved the remonstrators in Area 1A and Area 1B, who collected signatures from more than 50 percent of land owners, which was enough to qualify for judicial review, but fell short of the 65 percent threshold that would have stopped annexation outright.
Area 1A is just west of Bloomington. Area 1B lies to the southwest.
Remonstrators in those two areas are asking that the judge grant them additional time for signature collection, under a state statute that provides certain emergency powers. [IC 34-7-6-1] The emergency in question is the COVID-19 pandemic.
Despite the fact that the judge didn’t issue a ruling on Friday, based on the clarification that Nikirk requested from both sides during the hearing, his eventual decision could depend on the interpretation of the word “proceeding” as used in the statute on emergency powers. Nikirk wanted both sides to lay out how they understand the concept of “proceeding” under that statute.
The statute refers to the emergency powers as applying to a “proceeding…pending before a court, a body, or an official, that exists under the constitution or laws of Indiana.”
At the end of the hearing, Nikirk asked both sides to prepare proposed orders on the question by Jan. 6, 2023.
The final tally from Monroe County’s side of the remonstration process is not required until around the end of February.
Even the numbers in Bloomington’s Tuesday news release can’t be considered the city’s final view of how many valid remonstrance signatures have been submitted. An early version of the city’s news release included a mistake that was chalked up to a typo in a spreadsheet formula.
Remonstration means signing an official petition in opposition to annexation. On Thursday, the Monroe County auditor’s office had fresh signature numbers to report, as of Wednesday.
Based on those numbers, property owners in six of seven areas have a decent chance of blocking Bloomington’s annexation effort outright. In those six areas, more than 65 percent of property owners have submitted signatures. That’s the key threshold.
Here’s the breakdown: Area 1-A (73.83%); Area 1-B( 56.90%); Area 1-C (87.62%); Area 2 (80.44%); Area 3 (75.25%); Area 4 (71.74%); and Area 5 (68.13%)
The numbers reported on Thursday do not reflect the county auditor’s final determination. Any number of reasons could still cause the auditor, on further review, to conclude that a signature is not valid. Among the reasons: The signature a duplicate.
The auditor could also conclude that a remonstrance waiver attached to a property in connection with sewer service is valid, which would eliminate the signature from the count.
About the timeline for final counts, Monroe County auditor Cathy Smith told The B Square: “We know it won’t be any sooner than the third week of January.” That depends in part on how long some final back-and-forth takes between the auditor’s office and Bloomington’s city attorney.
Last year’s lead art for The B Square’s look ahead to 2021 featured this caption: “These numerals began life as a photograph of the sidewalk around the courthouse square in downtown Bloomington, where the crows like to crap. It was that kind of year.”
Arguably a worse year was 2021. So this year’s art includes an actual crow and a built-in sense of foreboding. Is that kid going to land his jump over the crow to get to next year?