On Friday, Aug. 16, the landowner filed an amended version of objections with the Monroe Circuit Court, in an attempt to prevent the City of Bloomington from acquiring the 222 Hats property at the south end of the block of Walnut Street between 4th and 3rd streets.
The City of Bloomington wants to take the property through an eminent domain process so that it can extend the footprint of its planned replacement parking structure to cover the full length of the block from 4th to 3rd streets.
A month earlier, an initial version of the objections was filed, because it was not clear at the time if the court was going to grant a motion for an extension of the deadline. The court did grant the extension.
A review by The Beacon of both documents revealed a few differences between the first and second versions. A new paragraph was added on the topic of the definition of “public use.” The concept of “public use” is key, because property taken through eminent domain is supposed to be for a public use. The first objection filed by the landowner argues that the taking would not be for a public use, because of the ground floor retail space that is planned for the replacement parking garage.
Another amendment to the document was stylistic—one sentence was edited to conform with Mark Twain’s legendary advice, “If you see an adverb, kill it.”
None of the changes altered of the number or kind of objections that were already filed.
According to the landowner:
- Objection 1: The project is not only for a public use, because it includes a “commercial shopping center.”
- Objection 2: The complaint is defective because it doesn’t describe the proposed “commercial shopping center,” which is a non-public use.
- Objection 3: The complaint is defective because it’s based on a resolution approved by the city’s Board of Public works at its April 30, 2019 meeting—but the resolution was not on the posted meeting agenda, which makes it void under Indiana law. (The resolution found that the city’s planned replacement parking garage served a public purpose.)
- Objection 4: The complaint doesn’t name Monroe County as defendant, when the county should be named, because of the interest it has in the taxes it might be owed.
- Objection 5: The city is requesting a use of the land, to construct a “commercial shopping center,” to which use it’s not entitled.
Friday’s filing came after a new deadline had been set, in response to motions for time extensions by the landowner and the city. Those motions were granted by the new judge in the case, Holly Harvey, giving extensions to both sides. Harvey was swapped in for Elizabeth Cure, after the landowner asked for a change, a request that was granted as a matter of right—it didn’t require an argument.
The case, initially filed with the court on June 7, has continued to grind along, impacting the schedule for the parking garage replacement. The demolition of the existing structure, scheduled to start on Sept. 3, won’t start from the south end, because the city has not yet acquired the building. Originally scheduled to be heard for a second time by the plan commission on Aug. 12, the city’s site plan was put off until September.
The legal skirmishing caused a hearing initially scheduled for July 22 to be cancelled. The online case documents don’t yet show a date for a new hearing.
Differences between the documents
One difference is in point (11) of the factual background in the case. It depends on the fact that the issue of a time extension had not yet been decided when the initial version of the objections were filed.
Difference 1: Version 1
11. As of the filing of these Objections, Landowner has requested an extension of time to file objections as well as a motion for change of venue, which have not been ruled upon. As such, Landowner is provisionally filing these Objections so as not to waive its rights and is doing so subject to receiving an extension of time to file objections. Landowner reserves the right to amend these Objections upon Condemnor responding to Landowner’s discovery requests and or discovery of additional information related to Condemnor’s Project and proposed involuntary taking.
Difference 1: Version 2
11. Landowner reserves the right to amend these Objections upon Condemnor responding to Landowner’s discovery requests and or discovery of additional information related to Condemnor’s Project and proposed involuntary taking.
A second difference adds a paragraph on the definition of “public use”—which is relevant because one of the landowner’s objections is that the proposed parking garage is not a “public use” as claimed by the City of Bloomington.
Difference 2: Added chunk
The City is proceeding in this eminent domain case pursuant to I.C. 32-24-1, et. seq. (See Condemnor’s Complaint.), which does not provide a specific definition of what constitutes “public use.” However, another portion of the Eminent Domain Chapter does provide such a definition that sheds light on what specifically the Indiana legislature might reasonably consider to constitute public uses. I.C. 32-24-4.5-1 defines “public use” as the:
(1) possession, occupation, and enjoyment of a parcel of real property by the general public or a public agency for the purpose of providing the general public with fundamental services, including the construction, maintenance, and reconstruction of highways, bridges, airports, ports, certified technology parks, intermodal facilities, and parks;
(2) leasing of a highway, bridge, airport, port, certified technology park, intermodal facility, or park by a public agency that retains ownership of the parcel by written lease with right of forfeiture; or
(3) use of a parcel of real property to create or operate a public utility, an energy utility (as defined in IC 8-1-2.5-2), or a pipeline company.
The definition of “public use” in this section of the Eminent Domain Chapter does not include anything that could remotely include commercial retail space.
A third difference cites a source for a claim, instead of a presumption:
Difference 3: Version 1
At this time, it is unknown to what types of businesses Condemnor will lease the commercial space; however, it is presumed to be non-public and non-governmental entities.
Difference 3: Version 2
At this time, it is unknown to what types of businesses Condemnor will lease the commercial space; however, based upon communications between City of Bloomington representatives and agents with local businesses, leases will be entered into with non-public and non-governmental entities.
A final difference strikes the adverb “quite” from a sentence.
Difference 4: Version 1
The existing Fourth Street Garage does not include any commercial retail space, which makes the reference to an “expansion” of the existing garage quite misleading.
Difference 4: Version 2
The existing Fourth Street Garage does not include any commercial retail space, which makes the reference to an “expansion” of the existing garage misleading.
If the court decides the case by overruling the landowner’s objections, the eminent domain statute gives the landowner a right to appeal, as in other civil lawsuits: “Any defendant may appeal the interlocutory order overruling the objections and appointing appraisers in the manner that appeals are taken from final judgments in civil actions.”
If the case goes to the next phase of an eminent domain proceeding, the court appoints three appraisers to come up with a fair amount of compensation to be paid. The city offered landowner Juan Carlos Carrasquel $587,500 for the building. He has said publicly he’s not interested in selling.
After the appraisers file their report, there’s a 45-day window for the landowner to file exceptions. The question of the amount to be paid can eventually wind up in a trial; however, the city can go ahead and take control of the land even if if the question of the amount goes to trial, as long the city deposits with the court the amount determined in the appraisers’ report.
Court filings in the case can be retrieved from the state’s mycase.IN.gov online system using the case number 53C06-1906-PL-001293. It’s a new case number, assigned after the change of judge in the case.