Circuit court trial on demolition permit could come before mid-March BZA hearing on $83.5K fine

Now expected to appear on the March 19 agenda of Bloomington’s board of zoning appeals (BZA) meeting is an objection to the city’s decision last fall to impose an $83,500 fine on the owners of a West 7th Street house.

The owners demolished the house without a required certificate of zoning compliance (CZC).

cropped 2020-01-21 historic house demolition IMG_6189
View of 523 West 7th St. facing south on Jan. 21, 2020. A house stood there until late September 2019.

The house had previously been reviewed by the city’s historic preservation commission for historic designation.

The BZA hearing was originally set for last November, but it has been put off a couple of times due to scheduling conflicts.

In the last week of February, a related lawsuit filed by the owners against city and county officials saw a light flurry of filings in the Monroe County circuit court. The lawsuit seeks a mandate from the court ordering the city’s planning and transportation director, Terri Porter, to issue the required CZC.

The question now is whether a ruling on the court case will come before or after the BZA hearing.

Just how connected are the court case and the BZA hearing?

The answer to that question is part of legal controversy that prompted the recent filings back and forth between the city attorney and the lawyers for the owners, Judie Baker and David Holdman.

One of the issues that’s a part of the BZA appeal is not directly related to the issuance of a CZC. It involves the calculation of the fine amount.

The city is analyzing the demolition of the house without a CZC as a recurring violation each day after the house was demolished, capping the amount at the assessed value of the property’s improvements.  The owners say that if there was a violation of local code, then it happened exactly once, making the application of a recurring fine unjustified.

Another issue that’s a part of the BZA appeal is connected to the lawsuit—the issuance of the CZC. In their BZA appeal, the owners say that the city “improperly withheld” the CZC. The lawsuit seeks to compel the city’s planning and transportation director to issue the CZC—even though the demolition has already taken place.

The owners would like the court to hold a bench trial on the question of the issuance of the CZC before the March 19 BZA hearing takes place.

Based on the motion for a bench trial made by the owners, their attorney, David Ferguson, thinks the case is straightforward, because some key facts are undisputed.

When the owners initially applied for a CZC last year, the city imposed a 90-day demolition delay, so that the city’s historic preservation commission (HPC) could review the house for possible historic designation. The HPC voted to recommend the house to the city council for historic designation, but didn’t include an interim protection in its motion. On Dec. 5, several weeks after the house was demolished, the area where the house was located was designated by the city council as the Near West Side Historic District.

The initial 90-days went by with no protection given to the property.  And after that, the local code says “a certificate of zoning compliance authorizing demolition shall be issued if owner has submitted a complete application and all other requirements of the Bloomington Municipal Code are met.”

Based on that set of facts, the owners and their lawyer say Porter was, and is, required to issued a CZC.

Porter says in her answer to the complaint:

Defendant denies that she “must” issue CZCs. Defendant admits that she is able to issue CZCs.

Porter’s answer prompted the owners to amend their complaint with an additional claim, saying that Porter is offering a defense that is “frivolous, unreasonable, or groundless.”

The motion by the owners for a bench trial to take place before the BZA hearing is held includes the statement:

The interests of justice would be served by hearing this matter an obtaining a decision of this Court regarding the CZC before the board of zoning appeals hearing.

Characterizing that statement as “bare assertions” that can’t be supported is Bloomington’s objection to having a bench trial take place before the BZA hearing:

In fact, Plaintiffs fail to make plain why they believe it is vital to hold this hearing prior to the BZA appeal. That is because Plaintiffs simply cannot show that any interests can be served by their request.

Bloomington’s objections to having an earlier bench trial include the idea that Porter needs time to conduct discovery and depose “individuals within the Monroe County government that have knowledge of Plaintiffs’ alleged facts in this case.”

The brief that outlines Bloomington’s objections to the bench trial says that even if a CZC were now issued, under an order from the court, that would “not retroactively moot the existing fines, because at the time of the demolition, the Plaintiffs did not have the required CZC or demolition permit.”

What would be moot, Bloomington contends, is the owners’ lawsuit asking for a mandate to issue a CZC—if the BZA determines that the owners did not commit a violation of Bloomington’s municipal code.  Bloomington’s conclusion is that:

[I]f anything, it stands to reason that it is better for the efficient administration of justice for this Court to set a hearing after the BZA hearing on March 19, 2020, not before.

What Bloomington wants from the court is a status conference to set up a case management plan.

The owners’ response to Bloomington’s objections acknowledges that the lawsuit seeking a mandate for issuance of a CZC is a separate action from the BZA appeal, but says, “the facts and circumstances are the same.”

As for the idea that time is needed for Porter to conduct discovery, the response to Bloomington’s objections describes ways that Porter has already conducted discovery and points to ways that she could have already begun more discovery, because no case management plan is required in order to do so.

Sometime in the next several days it should become clear whether the next legal step will be a bench trial or the March 19 BZA hearing.

The judge in the court case is Judith Benckart, a Republican who’s seeking re-election to her seat on the bench this year. The case landed in Benckart’s court after Bloomington asked for a change from Holly Harvey, the judge who presided over the city’s recent unsuccessful eminent domain lawsuit, connected to the 4th Street parking garage replacement.

No reason is required for a party to request a one-time change of judge. Harvey was the second judge assigned to the case, before things even got started, after the owners asked for a change from Elizabeth Cure, the initial judge to whom the case was assigned.

Bloomington’s board of zoning appeals is a five-member group that currently has one vacancy, according the city’s website.  Flavia Burrell is the BZA appointee from the plan commission. Cassaundra Huskey and the vacant seat are mayoral appointments. The two city council appointments are Barre Klapper and Jo Throckmorton.

The next regular meeting of the BZA falls on March 19 and starts at 5:30 p.m. in city council chambers.

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