Photo of Special Judge for the Bloomington Annexation Suit Nathan Nikirk from Lawrence District Court
In the substantive case concerning two large annexation areas west and southwest of Bloomington, a district judge ruled in favor of the protesters – and thus against the city of Bloomington.
It was Wednesday afternoon when Lawrence County Judge Nathan Nikirk issued his order barring areas 1A and 1B from being incorporated into the city of Bloomington.
In the 47-page order, the line at the end was particularly decisive: “Accordingly, the annexation of areas 1A and 1B must not take place.”
Nikirk concluded that the City of Bloomington could not demonstrate sufficient population density, urbanization, or city need for the land in either area.
In addition, Nikirk noted that this would have significant financial implications for the residents of the annexed territories and would not be in their interest.
Reached by The B Square on Wednesday afternoon, the appellants’ attorney, William Beggs, said: “We appreciate the court’s careful review of the evidence and are grateful for the work that went into crafting the judgment.”
The protesters issued a press release late Wednesday night. County Residents Against Annexation (CRAA) President Margaret Clements is quoted in the press release as saying, “We are glad that the residents of 1A and 1B who felt it was not in their best interest to be forcibly incorporated into the City of Bloomington were heard.”
The City of Bloomington is expected to appeal the ruling, just as it appealed another adverse district court ruling in mid-June, also issued by Nikirk. This ruling does not affect Area 1A or Area 1B, but the other five areas Bloomington wants to annex: Area 1C, Area 2, Area 3, Area 4 and Area 5.
The adverse ruling, which the city has already appealed, involved a question of constitutional law. That question was: Does a 2019 state law invalidating remonstrance waivers that are more than 15 years old violate the Contract Clause of the state and U.S. constitutions?
The difference between the two groups of areas is the percentage of property owners who protested against the annexation.
In all areas of the Group of Five, more than 65 percent of landowners protested, meaning annexation was stopped immediately. In Areas 1A and 1B, more than 50 percent protested, but less than 65 percent – meaning those two areas were entitled to a trial.
For both sets of territories, the number of signatures relied on the 2019 law that invalidated older remonstrance waivers. Bloomington initially filed the constitutional challenge for all seven territories, but waived the constitutional argument for Territory 1A and Territory 1B to expedite the process on the merits.
Nikirk’s ruling on Wednesday came about three months after the conclusion of the main trial in early May.
Bloomington began the annexation proposal, which is currently going through the courts, in 2017, at the start of then-Mayor John Hamilton’s first term. Current Mayor Kerry Thomson mentioned Wednesday’s negative ruling in her address to the City Council at its evening meeting, but did not elaborate, saying, “More on that later.”
The crux of Nikirk’s judgment begins in paragraph 138 (bold added for clarity).
138. In addition to the contiguity requirement, IC 36-4-3-13(b) requires the City of Bloomington to demonstrate that Annexation Areas 1A and 1B meet one of the following conditions:
A. The population density of the area to be annexed shall be at least three (3) persons per acre (IC 36-4-3-13(b)(2)(A).
b. At least 60% of the area to be annexed is within an officially registered residential development (IC 36-4-3-13(b)(2)(B) and Town of Brownsburg v. Fight Against Brownsburg Annexation, 124 NE3d 597, 606 (Ind. 2019);
C The area to be annexed is designated for commercial, business or industrial purposes. (IC 36-4-3-13(b)(2)(C))
Nikirk concluded that the City failed to demonstrate that Area 1A met any of criteria (A), (B), or (C) under IC 36-4-3-13(b). This result was probably not surprising, in part because the City’s population density calculations for Area 1A resulted in less than 3 people per acre, which does not meet part (A).
However, Nikirk also found that Area 1B did not meet the population density criterion of part (A) of IC 36-4-3-13(b).
This will likely be an issue in the city’s appeal, if it is filed, because the big news of the second day of the hearing was the fact that the population density in Area 1B was actually over 3 people per acre.
From the witness stand, Bloomington GIS Coordinator Meghan Blair said Bloomington had estimated the population density of Area 1B at 3.28 people per acre, more than the 2.6 people per acre for Area 1B calculated from an FAQ posted on the city’s website in 2021 when the city resumed its annexation efforts.
Nikirk analyzed Blair’s new calculations in relation to legal requirements:
164. The population calculations in the City of Bloomington notices prior to the City Council vote were intended for the public and the City Council. According to those notices, the population density of Area IB is 2.60 persons per acre….
165. The population density of Area 1B, according to the calculation performed by Ms. Blair, was 3.28 persons per acre in 2023, two years after the adoption of Regulation 17-10.
166. Ms Blair acknowledged that the population was not evenly distributed within a geographical area, which called into question the validity of her methods for calculating population density.
167. Moreover, Ms. Blair’s calculations were not included in the Financial Plan or the Annexation FAQs, both of which were publicly available and which the City of Bloomington believes the public should rely on. Given the inconsistency of the City of Bloomington’s own evidence, the Court concludes that Area IB does not meet the three persons per acre threshold and therefore does not satisfy IC 36-4-3-13(b)(2)(A).
Failure to meet any of criteria (A), (B) or (C) in IC 36-4-3-13(b) did not mean the end of Bloomington’s opportunities in either area.
The reason for this is that, as stated in Nikirk’s ruling, the City of Bloomington’s incorporation of Areas 1A and 1B could still be justified under another part of the Act even if any of the following could not be proven under IC 36-4-3-13(b):
From Nikirk’s ruling: “IC 36-4-3-13(c) provides that annexation may occur if the area to be annexed is needed and capable of being used by the City of Bloomington for its development in the ‘reasonably near future.'”
But Nikirk found that neither the land from Area 1A nor the land from Area 1B necessary of Bloomington, as defined in state law. From Nikirk’s ruling:
154. With respect to Area 1A, the City of Bloomington has failed to comply with IC 36-4-3-13(c)(1)(B) for several reasons.
155. First, Mayor Thomson testified that the City of Bloomington did not need Areas 1A and 1B (Thomson’s testimony). Mr. Hamilton also testified that the incorporation was planned and implemented to “right-size” the boundaries of the City of Bloomington (Hamilton’s testimony). The desire to “right-size” a city’s boundaries is not a “need” within the meaning of IC 36-4-3-13(c)(l)(B).
Nikirk rejected Bloomington’s claim that Area 1A and Area 1B were necessary because of the need for affordable housing, citing the city’s policy of not extending sewerage beyond its boundaries. From the ruling:
158. (T)he City of Bloomington’s policy of not extending sewer service beyond its boundaries in 2024 for a 35-home Habitat for Humanity project just outside Bloomington’s city limits does the exact opposite of solving the community’s affordable housing needs. It is the City of Bloomington’s prerogative to deny sewer service. However, this undermines the claim that the City of Bloomington needs Area 1A because the community needs “affordable housing.”
Nikirk also agreed with the objectors regarding the financial impact. Under the Annexation Act, the judge must order that a planned annexation not take place if it is proven that “the annexation will have a significant financial impact on the residents or landowners.”
And Nikirk noted: “Overall, annexation has significant financial implications for landowners in Areas 1A and 1B.”
Finally, Nikirk agreed with the objectors on the “best interest” issue. Nikirk wrote, “The Court finds that annexation is not in the best interests of landowners in Areas 1A and 1B.”
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