Last Friday, attorneys for Juan Carlos Carrasquel, owner of the JuanSells.com building, filed an objection to Bloomington’s effort to have another try at acquiring the building from Carrasquel against the landowner’s wishes.
Bloomington wants 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.
So on December 30 last year, Bloomington asked the court for permission to amend its complaint in its unsuccessful eminent domain action. The judge had ruled 10 days earlier against Bloomington, thwarting the city’s effort to take the building.
The key point on which the judge ruled was whether the taking served a public purpose. Judge Holley Harvey concluded 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.”
So Bloomington is now proposing a different project for its parking structure—one without any retail or commercial use. Bloomington wants the judge to grant permission to amend its eminent domain action by eliminating the offending component, which was ground-floor commercial space.
The elements in the objection filed last Friday were foreshadowed by a notice to the court that such an objection would be filed. The notice said, “[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.'”
With respect to the design and funding, Friday’s objection states:
To Landowner’s best knowledge and information, the City has not formally redesigned nor even commissioned its architects to make the requested changes to the Project as alleged, nor has the City revised its bond applications for funding the project, nor has the City made any request to the City zoning or planning boards for approvals of the allegedly “to be” redesigned project.
On the design issue, the plan commission would have to grant a waiver of a ground-floor non-residential (and non-parking) zoning requirement for buildings in that part of downtown. The plan commission has not done that. And it’s not clear that the plan commission would agree to hear a petition from the city, until the city owns all the property to be used for the replacement garage. The local code requirement that petitions be made by the owner or with written permission of the owner led the plan commission last July to put off a decision on the city’s site plan.
On the funding issue, Bloomington stipulated as a part of the agreed-upon facts that the city council’s approval of the bond issuance was contingent on the inclusion of ground-floor retail for the replacement parking garage. So the objection filed on Friday points to that contingency as contradicting Bloomington’s newly filed request to build the replacement garage without the ground-floor retail.
In a redesigned parking garage that has no commercial space, it would not be possible for Carrasquel to lease space in the new structure for his real estate business .
That’s why Carrasquel’s lawyers also point to this part of the proposed amended complaint as problematic: “[T]he City has also discussed opportunities with 222 Hats, LLC member Juan Carlos Carrasquel to have a space in the new structure that matches or exceeds his current real estate footprint . . .”
In sum, says Friday’s objection, what Bloomington is doing is not trying to amend its complaint to conform with evidence, which is allowed in an eminent domain proceeding, but rather trying to amend its complaint in a way that contradicts the evidence.
The objection contends that Bloomington cannot amend its complaint and that Bloomington’s only option is to appeal the ruling of the court, made on Dec. 20.
For all Beacon coverage of the eminent domain lawsuit see: City of Bloomington v. 222 Hats.