On December 20 last year, a Monroe County circuit court judge ruled that Bloomington could not use eminent domain to take the JuanSells.com building (222 Hats) in order to build a replacement garage on a larger footprint. The building is just south of the site where the 352-space 4th Street parking garage once stood.
Now, according to a request posted by the circuit court on Jan. 2, Bloomington wants to amend its eminent domain action to factor in the key point of judge Holly Harvey’s ruling.
The ruling hinged on the fact that the proposed design of the replacement garage would include non-residential commercial space on its ground floor, disqualifying it from the public purpose that such a taking is supposed to serve.
Harvey found that “the retail use of the proposed Project, which cannot be separated from the public aspect, prohibits the taking of the 222 Hats Real Estate.”
What Bloomington is doing is not appealing Harvey’s ruling. Instead, the city is asking to amend its filing on the taking of the property. The amended filing would propose a parking structure design without the ground-floor retail component, on which its first effort foundered.
Here’s how Bloomington’s outside legal counsel puts it in the request to the court:
In light of and out of respect for this Court’s Order, the City is redesigning the
Project to exclude any nonresidential retail space (other than the government office space necessary to manage the parking garage) from the Project. The Project shall be exclusively used as a parking garage, as that use is defined by Bloomington Municipal Code 20.11.020.
Bloomington’s online financial records through the end of the year show that outside counsel for the eminent domain action, Bose McKinney & Evans, was paid four invoices ($12,055.03, $5,399.50, $6,977.00 and $89.00) for a total of $24,520.53.
same day as the city’s request to the court, attorneys for the landowner, Juan Carlos Carrasquel, filed notice with the court that they will object to the request to amend, but as of Tuesday had yet filed the objection.
The notice of the objection hints at the kind of arguments that will be made against allowing Bloomington to pursue an amended complaint. The objections will include arguments on design and funding. The notice of intent to file an objection says: “[Bloomington’s] proposed Amended Complaint does not conform to the evidence in front of this Court regarding the design of and funding for the ‘Project.'”
A design of a replacement parking structure that does not include ground-floor commercial space would need a waiver from the plan commission. The waiver would be needed because of the provision in the city zoning code that requires non-residential ground-floor use for that part of downtown Bloomington. The code excludes parking from the uses that can satisfy the ground-floor non-residential use requirement.
In its request to the court, Bloomington acknowledges the need for a waiver: “In order to move forward with the redesigned Project, the City’s petition for site plan approval from the Bloomington Plan Commission shall include a request for a waiver from the first floor nonresidential requirement.”
Not mentioned in Bloomington’s request is the funding issue. In the course of the oral arguments heard in the case, the city said the project’s funding was contingent on the non-residential component, because Bloomington’s city council required it.
Carrasquel’s attorney, Eric Rochford, quizzed Bloomington’s director of sustainability, Alex Crowley during the proceedings in early October:
Rochford: It would be true, wouldn’t it, that the city council required the first-floor non-residential, what we call the commercial retail space, correct?
Crowley: Yeah, they put together a list of items they wanted to see in the structure, and having a kind of downtown, commercial ground floor was a part of that.
Rochford: The city council did expressly require that the first-floor non-residential use be a part of the project, correct?
Crowley: Em, yeah, I can’t remember exactly, but I think what they, … I think they asked for it as a part of their approval for the funding. I think that technically the actual commitment was made via a document in the redevelopment commission process.
Rochford: OK, so the city council said, We’re not going to fund the project unless it’s got the first-floor non-residential component? Is that another way of saying what you just said?
Crowley: Yeah, I mean, I have to go back and sort of review all that, but that was my recollection.
Rockford then established that the city council’s requirement for the ground-floor component was a part of the set of agreed-to stipulations by both sides.
The redevelopment commission’s description of the project appears to have been amended in a way consistent with what Crowley described in court. The redevelopment commission (RDC) is the entity that oversees use of tax increment finance (TIF) revenue, which is being tapped to fund the parking garage project.
The RDC’s amended description says (emphasis added), “The design should also explore the options of installing at least one public restroom, retail space on the ground floor, public art, and architecturally significant design that would enhance the space of downtown Bloomington.”
The $18.5 million bond issuance for the project, approved April 3, 2019, by the city council on a 5–3 vote, does not appear to have any wording requiring a ground-floor retail component for the project.
But a memo dated March 20, 2019 to the city council from Bloomington corporation counsel, Philippa Guthrie describes the project that is to be funded with the bond issuance. Guthrie’s memo says: “The new 4th Street Garage will have a maximum of no more than 550 parking spaces and will include many sustainable features, including, but not limited to, the following: … Retail space on the ground floor …”
The status of the 4th Street parking garage replacement could be a topic addressed during report time at the city council’s first meeting of the year, on Wednesday. However, it’s not an item on the agenda.
For all Square Beacon coverage of the eminent domain lawsuit see: City of Bloomington v. 222 Hats.
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