Filed: 10/25/2019 3:02 PM

Monroe Circuit Court 6

Monroe County, Indiana

STATE OF INDIANA ) IN THE MONROE CIRCUIT COURT

) SS:
COUNTY OF MONROE ) CAUSE NO. 53CO6-1906-PL-001293

CITY OF BLOOMINGTON, INDIANA, )

Plaintiff, )

V. )

222HATS LLC, and GERMAN AMERICAN 3

BANCORP, INC., )

Defendants. )

TENDER OF PROPOSED FINDINGS OF FACT,

CONCLUSIONS OF LAW AND ORDER OF APPROPRIATION

The Plaintiff, the City of Bloomington, Indiana, by counsel, respectfully tenders its

proposed Findings 0f Fact, Conclusions 0f Law, and Order 0f Appropriation. The proposed

Findings of Fact, Conclusions of Law, and Order 0f Appropriation are attached hereto as Exhibit

A.

Respectfully submitted,

/S/Alan S. Townsend
Alan S. Townsend
Attorney N0. 16887-49

BOSE MCKINNEY & EVANS LLP

111 Monument Circle, Suite 2700
Indianapolis, IN 46204
(3 17) 684-5000
(3 17) 684-5 1 73 (FAX)

Attorneys for Plaintifif the City 0f Bloomington,

Indiana
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing “Tender of Proposed Findings of Fact,

Conclusions 0f Law, and Order 0f Appropriation” has been served upon the following counsel 0f

record, Via the Indiana E-Filing System and/or by first class U.S. Mail, postage prepaid, this 25th

day of October, 2019:

David L. Ferguson Larry D. Allen

dlf@ferglaw.com allenl@bloomin9ton.in.gov

Jason L. McAuley Michael Rouker

Jason@kochmcaulev. com roukerm@bloomington.in.gov

J. Eric Rochford
erochford@cohenandmalad.com

/s/Alan S. Townsend
Alan S. Townsend

3740891_1/21672-14
EXHIBIT A
STATE OF INDIANA IN THE MONROE CIRCUIT COURT
) SS:
COUNTY OF MONROE ) CAUSE NO.53C06-1906-PL-001293

CITY OF BLOOMINGTON,INDIANA,

Plaintiff,

v.

222 HATS LLC, and GERMAN AMERICAN

BANCORP,INC.,

Defendants.

FINDINGS OF FACT,CONCLUSIONS OF LAW,AND ORDER OF APPROPRIATION

This matter came before the Court on an Order to Appear and Show Cause issued as a

result of a Complaint for Condemnation filed by the Plaintiff, the City of Bloomington (the

"City").

At the Show Cause hearing held by the Court on October 7, 2019, the Plaintiff, City,

appeared by counsel, Larry Allen, Philippa Guthrie, Michael Rouker, and Alan Townsend. The

Defendant, 222 Hats LLC ("Hats"), appeared by counsel, J. Eric Rochford and David Ferguson.

The Defendant, German American Bancorp, Inc., appeared by counsel, Jason McAuley.

Evidence was presented and argument was heard. The Court then took the case under

advisement and ordered the parties to submit Proposed Findings of Fact and Conclusions of Law

by October 25, 2019. The Court concludes it has jurisdiction over the parties, the cause of

action, and the issues in consideration. After considering the arguments, the evidence, and the

applicable law, the Court now finds, concludes and orders as follows:
 Findings of Fact

After hearing the witnesses, receiving and weighing the evidence, and determining

credibility, the Court makes the following findings of fact:

1. Hats owns title to the real estate located at 222 S. Walnut Street, Bloomington,

Indiana, 47401 ("Real Estate") which has the following legal description:

The South Half of In-Lot Number Thirty-three (33) in the City of

Bloomington, Indiana, as set out on the original Plat of the City of
Bloomington, Indiana, as shown in Plat Book No. 1 at page 4 (now Plat
Cabinet B, Envelope 1), in the office of the Recorder of Monroe County,
Indiana.

Tax Parcel No. 53-05-33-310-173.000-005; Auditor's Parcel No.: 013-

05940-00

(Agreed Factual Stipulations("AFS")¶ 1.)

2. The Real Estate is a commercial building, 2800 square feet in size, in which Hats

operates a business.(AFS ¶ 2.)

3. Defendant German American Bancorp, Inc. holds a mortgage dated March 30,

2018, for the Real Estate in the original amount of Five Hundred Thousand Dollars

($500,000.00); recorded as Instrument Number 2018003813 in the records of the Office of the

Recorder of Monroe County, Indiana.(AFS ¶ 3.)

4. Defendant German American Bancorp, Inc., entered into the mortgage agreement

with Juan Carlos Carrasquel, who is the principal of Hats, and it holds an assignment of rents

dated March 30, 2018, for the Real Estate, which is recorded as Instrument Number 2018003815

in the records of the Office of the Recorder of Monroe County, Indiana.(AFS ¶ 4.)

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 5. The City is seeking to acquire the Real Estate pursuant to Indiana Code 32-24-1,

et seq., and Indiana Code 36-1-4-5, to construct what will be the new Fourth Street Garage

("Project").(AFS ¶ 5.)

6. On April 30, 2019, the City of Bloomington Board of Public Works approved

Resolution 2019-43, authorizing a Uniform Property or Easement Acquisition Offer for the Real

Estate. Resolution 2019-43 was added to the agenda of the Board of Public Works during the

meeting on April 30, 2019.(AFS ¶ 6.)

7. On May 6, 2019, pursuant to the requirements of Indiana Code Section 32-24-1-5,

the City personally delivered a Uniform Property or Easement Acquisition Offer to Hats member

Juan Carlos Carrasquel. That same day, a copy of the Offer was sent by Certified Mail to Hats,

its agent as registered with the Indiana Secretary of State, Mallor Grodner LLP, and to Juan

Carlos Carrasquel. The City offered to purchase the Real Estate for $587,500.00 in its Uniform

Property or Easement Acquisition Offer. The City's offer was based on the average of two

independent appraisals acquired by the City. The offer notified Hats that the City wanted to

purchase the property for "the expansion and construction of the Fourth Street Parking Garage."

(AFS 7.)

8. The City's Uniform Property or Easement Acquisition Offer was rejected, and

therefore on June 7, 2019, as required by Indiana Code Section 32-24-1-5.5(b), the City filed its

Complaint.(AFS ¶ 8.)

9. The Project, as proposed by City and depicted in Exhibit A and Exhibit B

attached to the AFS, includes a total of 180,855 square feet of space. Of that space, 12,320 net

square feet is being constructed for non-residential, non-parking use on the first floor frontage.

Included within this non-residential, non-parking space is approximately 8,677 square feet

3
divided into four sections that the City anticipates offering for lease to the public, including

private or public entities or persons, for commercial purposes, including but not limited to retail.

This portion of the Project's non-residential space will not be restricted to governmental tenants

or governmental uses and will be subject to written leases. The remaining 3,643 square feet of

non-residential space will be used for the City's parking operations, City information technology

infrastructure, public restrooms, and dedicated bicycle parking.(AFS ¶ 9.) The entirety of the

garage will be owned and operated by the City.

10. The renderings attached to the AFS as Exhibit A and Exhibit B are accurate

depictions of City's current proposed design and layout for the Project.(AFS ¶ 10.)

1 1. The City has a Unified Development Ordinance (UDO) that governs both uses

and design for structures within the City, which is located generally in Title 20 of the

Bloomington Municipal Code.(AFS ¶ 14.)

12. Included within the UDO, the City has development standards for certain

geographic regions referred to as overlays.(AFS ¶ 15.)

13. The Project will be constructed and exist in the Downtown Core Overlay.(AFS ¶

16.)

14. B.M.C. § 20.03.120(e) requires that any structure with frontage on, in relevant

part, Walnut Street, 3rd Street, and 4th Street provide ground floor nonresidential uses. B.M.C. §

20.03.120(e)(2) states:

All properties to which this subsection applies shall provide ground floor
nonresidential uses along the applicable street frontage. No less than fifty percent
of the total ground floor area shall be used for such nonresidential uses. Enclosed
parking garages shall not be counted toward the required nonresidential uses.

(AFS ¶ 17.)

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 15. On July 15, 2019, Hats filed Objections to Complaint for Condemnation (the

"Objections"). Hats filed amended Objections on August 16, 2019.

Conclusions of Law

1. The City initiated this condemnation lawsuit pursuant to the Eminent Domain

Act, Indiana Code 32-24-1 et seq. (the "Act"), to acquire the Real Estate that will be used as a

public parking garage. The parking garage will replace the dilapidated Fourth Street Parking

Garage and provide 512 parking spaces in downtown Bloomington.

2. The City's Complaint is within Indiana's laws of eminent domain, and the Court

has jurisdiction over the subject matter and parties to this action. Specifically, the City is a

municipality organized and existing pursuant to the laws of the State of Indiana. Pursuant to Ind.

Code § 36-1-4-5, the City is entitled to exercise the power of eminent domain.

3. Hats has raised five separate objections to the condemnation, each of which is

addressed in turn.

4. Because the parties do not dispute that the City made a good faith offer to

purchase the Real Estate, the burden of proof is on Hats to show that its objections should be

sustained. City ofEvansville v. Reising, 547 N.E.2d 1106, 1109(Ind. Ct. App. 1989).

A. Bloomington's taking is for a public purpose and is lawful

5. Hats' first objection is that the City's taking is not for a public use. Specifically,

Hats contends that the City is seeking the property to "construct a commercial shopping center to

lease to commercial, non-public entities." (Objections at 3-4.) In taking this position, Hats

5
overlooks and mischaracterizes the primary purpose of the project, which is the construction of a

public parking facility that will provide 512 parking spaces in downtown Bloomington.'

6. Generally, courts may only inquire into the necessity of a taking only where the

landowner produces evidence of bad faith, fraud, capriciousness, or illegality on the

condemnor's part. Boyd v. State, 976 N.E.2d 767, 769 (Ind. Ct. App. 2012) (citing State v.

Collom, 720 N.E.2d 737 (Ind. Ct. App. 1999)). Hats bears the burden of showing that the City's

taking will not be used for a public purpose, or that the proceeding is a subterfuge to convey the

property to a private use. Id. (quoting Cemetery Co. v. Warren Sch. Twp. OfMarion Cnty., 236

Ind. 171, 139 N.E.2d 538, 546 (1957)). Hats fails to meet its burden of showing evidence of bad

faith, fraud, capriciousness, or illegality.

7. Indiana law is clear that a parking garage serves a public purpose: "[T]o the extent

that public parking facilities relieve congestion and reduce traffic hazards in the streets, they

serve a public purpose." Phillips v. Officials of City of Valparaiso, 120 N.E.2d 398, 402 (Ind.

1954). The inclusion of commercial space on the ground floor of the parking garage, as required

by a local planning and development ordinance, does not defeat the primary purpose of the

taking, which is the construction of a public parking facility.

8. Hats suggests that there is something nefarious about the fact that the plans for the

parking garage include commercial space on the ground floor. But there is nothing improper

about this aspect of the project. Instead, Bloomington's local ordinance pertaining to

h
development standards for the downtown area requires that any property with frontage on 4t

Likewise, Hats misstates the City's position and the applicable law when it claims that "[Hats] and the City agree
that a taking for a private use is unlawful."(See Response to City's Memo. at 1.) It is true that where a municipality
uses the power of eminent domain for a purely private purpose, the taking is unlawful. See, e.g., Fountain Park Co.
v. Hensler, 155 N.E. 465, 472(Ind. 1927), discussed in paragraph 13 infra. But where a municipality uses the power
of eminent domain for a primary public purpose (such as the parking garage at issue here), the project does not lose
its public character by the fact "that the exercise ofthe power for such use will incidentally result in a private use or
benefit." Kessler v. City ofIndianapolis, 157 N.E. 547, 549 (Ind. 1927).
6
Street, 3rd Street, or Walnut Streets "shall provide ground floor nonresidential uses along the

applicable street frontage. No less than fifty percent of the total ground floor shall be used for

such nonresidential uses. Enclosed parking garages shall not be counted toward the required

nonresidential uses." See Bloomington Code of Ordinances § 20.03.120 (Downtown Core

Overlay(DCO) — Development standards). Nor is such a requirement peculiar to Bloomington.

In several comparable Indiana communities, other City Councils have also enacted zoning

ordinances mandating first-floor nonresidential uses in their downtowns.2 These first-floor

nonresidential requirements encourage municipalities to develop so as to maintain vibrant, active

blocks within their urban core, rather than creating a situation where dormant, inactive, and

disjointed voids appear through their centers. As a result, the inclusion of commercial space on

the ground floor is intended to comply with this planning and development ordinance, and it is

not driven by any improper or fraudulent motive. Moreover, the law does not require that a

public building avoid leasing incidental space to private vendors. Otherwise, a public library

could not lease space to a coffee shop; a public university residence hall could not lease space to

a laundromat; and a public airport could not lease vending space in its terminal to restaurants.

9. "The question whether a particular use is public or private is a judicial question."

Sexauer v. Star Milling Co., 90 N.E. 474, 476 (Ind. 1910). "[A] use which is in itself of a public

character justifying the exercise of the power of eminent domain does not lose its character as

such by the fact that the exercise of the power for such use will incidentally result in a private

use or benefit." Kessler v. City ofIndianapolis, 157 N.E. 547, 549 (Ind. 1927). For example, in

Hawley v. South Bend, Department of Redevelopment, 383 N.E.2d 333 (Ind. 1978), the Court

2 See, e.g., South Bend Municipal Code § 21-03.06(a)(J) and (a)(K), Central Business District; Valparaiso Zoning
at
Ordinance Part III, Article XXIII, Section 2310 (59); Central Business District (available on page 136
http://ci.valparaiso.in.us/DocumentCenter/View/233/Zoning-Ord inance ); Jeffersonville Zoning Ordinance Article
Four, Section 4.25 and 4.26 (available on pages 58 and 61 at https://s3.amazonaws.com/cityofjeffnet/Jeffersonville-
Zoning-Ordinance-Master-Copy-REV-7-5-20192.pdf) .

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addressed a challenge to eminent domain proceedings that were instituted to acquire a downtown

section of South Bend that was blighted and that was to be redeveloped by private investment.

The Indiana Supreme Court found that the resale of the property to construct a shopping mall

after the blighted area was removed was only incidental to the primary public purpose:

First, the resale of any property in the area by the Redevelopment Commission
takes place only after the principal public use and purpose the—slum clearance or
elimination of a blighted area—has been accomplished. Hence, the resale can be
seen as merely incidental to the main thrust of the Redevelopment Act. Alanel
Corp. v. Indianapolis Redevelopment Comm.(1958) 239 Ind. 35, 48, 154 N.E.2d
515, 522.

Second, the resale of the property to private enterprise under conditions in which
the property will be developed into a shopping mall open to the public is clearly
within the realm of a "public purpose". In enacting the Redevelopment Act, the
General Assembly, in its "declaration of public policy," stated that the
redevelopment of blighted areas is a "public and governmental function (which)
will benefit the health, safety, morals and welfare, and will serve to protect and
increase property values (and) that the clearance, replanning and redevelopment
of such blighted areas are public uses and purposes for which public money may
be spent and private property acquired." IC s 18-7-7-2 (Burns 1974). So long as
the eventual use of the property is related to a discernible public purpose or use,
the actions of redevelopment commissions will not be disturbed on the ground of
a public taking of private property for a private purpose. In the case at bar, the
proposed shopping mall is such a public purpose.

Hawley, 383 N.E.2d at 340-41.3

10. The same result is warranted here, as the principal public use of the property is as

a public parking facility. The inclusion of first-floor space that may be leased as commercial

3 Hats contends that the Hawley decision is "only applicable to blight clearance redevelopment projects," and that
its holding has been circumscribed by the passage of Ind. Code § 32-24-4.5 et seq. in 2006.(Resp. to City's Memo
at 2, 9.) But a subsequent decision from the Indiana Court of Appeals considered and applied the Hawley rule of
examining the surrounding facts to see "what is the actual, principal, and real use to be made of the property," and
suggested no such limitation. See Wymberley Sanitary Works v. Batliner, 904 N.E.2d 326, 335-36 (Ind. Ct. App.
2009)(analyzing Hawley and noting that installation of a sewer line serving a private sub-division was in fact a
public use). This situation is also not one where a parcel of real property is being transferred to a private property
(see Resp. to City's Memo at 2); the public parking garage will be owned by the City and is not being transferred to
any private entity.

8
space (whether office or retail space) in the parking garage is only incidental' to that purpose and

is otherwise consistent with Bloomington's planning and development ordinance. Indeed, the

proposed parking garage to be constructed includes 180,855 square feet of space and, of that

space, only 8,677 square feet of space is eligible to be used for commercial purposes on the first

floor frontage. The commercial space — which amounts to less than five percent of the entire

project — is ancillary to the ultimate purpose of building the parking garage.

1 1. Hats argues that the net square footage of non-residential space on the frontage of

the property is insufficient to meet the requirement of B.M.C. § 20.03.120 for the Downtown

Core Overlay. However, the evidence demonstrates that no final plan has been approved before

the City's Plan Commission, and the garage drawings as depicted in Exhibit A of the Parties'

stipulations includes additional non-residential, non-garage space that may be included in the

Plan Commission's calculation of whether the space conforms to the Ordinance. Regardless, the

difference is of no consequence as the City has stated that it intends to comply with the overlay

requirements in the Ordinance, and the inclusion of such an incidental use that will be owned and

operated by the municipality does not negate the fact that this Project is, in its totality, a public

parking garage.

12. In addition, state law carefully outlines the process by which the City could lease

the nonresidential space and limits the purposes that may be considered in awarding a lease. For

instance, if the City's Redevelopment Commission leases the nonresidential first-floor space,

state law (1) prescribes the manner by which the City determines the value at which the space

4
Hats claims that the definition of "incidental" as found on Merriam-Webster's website precludes such a use of the
term, but the legal definition of "incidental" as found in Black's Law Dictionary is as follows: "Subordinate to
something of greater importance; having a minor role." BLACK'S LAW DICTIONARY (9th Edition 2009).
Additionally, the language from the Hawley decision — which distinguishes between the "principal" and "incidental"
aspects — is instructive, as it makes clear that a subordinate yet intentional act can still be incidental to a principal
public purpose. The Court rejects Hats' suggestion that an incidental act must be "merely by chance or without
intention or calculation" as unsupported by the law.(See Resp. to City's Memo. at 5.)

9
should be leased (Ind. Code § 36-4-14-22(b)),(2) sets a floor on the price at which the City may

offer to lease the space (Ind. Code § 36-7-4-22(c)),(3) mandates a process the City must use to

offer the space for lease (Ind. Code § 36-7-4-22(d)), and (4) outlines the criteria the City is

permitted to consider when awarding a lease (Ind. Code § 36-7-4-22(f)). In awarding a lease, the

City is statutorily obligated to consider whether the lease will "best serve the interest of the

community, from the standpoint of both human and economic welfare." Ind. Code § 36-7-4-

22(f)(6).

13. Notably, the primary authority relied on by Hats in its objection, Fountain Park

Co. v. Hensler, 155 N.E. 465, 472 (Ind. 1927), involved a situation in which Indiana adopted

legislation allowing certain private Chautauqua institutions to exercise eminent domain

proceedings to secure tracts of land for their assemblies. The Indiana Supreme Court rejected the

idea that giving such authority to a private institution for its private meetings constituted a public

use. The taking at issue here for a public parking garage is readily distinguishable. The City will

be the sole owner of the garage and its planned use meets the requirements for a public purpose.

14. The City's inclusion of incidental first-floor space that will not be used for

parking also does not, in any way, implicate preemption doctrine. Hats claims that the City

should not comply with its ordinance because such compliance would be preempted by the

Indiana Constitution (See Hats' Response to City's Memorandum pp.2-3). First, Hats did not

raise this issue in its Objections and has, therefore, waived it for consideration. Second, whether

the City's plans for a public parking garage is a public use does not implicate preemption in any

way. Hats attempts to apply its preemption argument to the Indiana Constitution, but the City

has initiated the taking through the statutory authority the legislature has granted. There is

nothing in the statutory authority on takings that would indicate that the General Assembly

10
intended, either expressly or impliedly, to preempt local zoning ordinances. Cf. City of

Indianapolis v. Fields, 506 N.E.2d 1128 (Ind. Ct. App. 1987)(noting that an ordinance may only

be preempted where the state has chosen to occupy the field or when it conflicts with "rights

granted or reserved by the Legislature"). The City's zoning ordinance is not in a field that the

legislature has occupied. Nor does requiring activation and use of the ground floor of a parking

garage for something other than residences and parking clearly conflict with established state

law. See Board ofCorn 'rs ofLaPorte County v. Town & Country Utilities, Inc., 791 N.E.2d 249,

255-56 (Ind. Ct. App. 2003), trans. denied,(holding that local zoning authority is not preempted

by the Indiana Code 36-1-3-1, et seq., the Home Rule Act). Therefore, even if Hats had not

waived this argument by failing to include it in its Objections, it also fails as a matter of law.

B. The Complaint accurately describes the project at issue.

15. In its second objection, Hats claims that the Complaint is defective "because it

does not factually describe Condemnor's Project, most importantly the fact that it includes a

commercial shopping center ...."(Objections at 6.) Hats is mistaken.

16. The Indiana Code requires that the complaint set forth "Nile use the plaintiff

intends to make of the property or right sought to be acquired." I.C. § 32-24-1-4(b)(3). A

general allegation of the use that is to be made of the acquisition is sufficient to satisfy the

requirements of the Act. See Vandalia Coal Co. v. Indianapolis & L. Ry. Co., 79 N.E. 1082,

1083 (Ind. 1907). Likewise, a general allegation of the necessity of the taking of the acquisition

for its intended use is also sufficient. Eckart v. Ft. Wayne & N.I. Traction Co., 104 N.E. 762,

763(Ind. 1914).

17. Here, the City's Complaint accurately describes the intended purpose of the

property to be acquired: "[i]n the course of the exercise of its responsibilities and police powers

11
to provide for public facilities and works, the City intends to construct a new, expanded 4th

Street Parking Garage, which shall occupy the parcels of land between the northwest corner of

West 3rd Street and South Walnut Street and the southwest corner of West 4th Street and South

Walnut Avenue[.j"(Complaint, ¶ 2.) This general allegation is sufficient to satisfy the Act.

C. The Complaint is not based upon a violation of Indiana law.

18. In its third objection, Hats argues first that the City's bond resolution approving

the project was not properly noticed in an agenda posting as required by Indiana's Open Door

Law, I.C. § 5-14-1.5-4, and second, that the bond resolution did not contain a finding of the

public purpose of the bond as required by I.C. § 36-7-14-25.1. Neither of these contentions has

merit.

19. With regard to the Open Door Law, to the extent that Hats had any issue in how

the project was noticed (or not) upon an agenda, it was required to raise the issue by filing an

action within 30 days of the alleged violation — something it failed to do. See I.C. § 5-14-1.5-

7(b)(2). As a result, the issue of whether the bond resolution was appropriately noticed is an

improper collateral attack and not properly before this Court.

20. And even had the issue been raised during the required thirty-day period, the

City's actions do not violate the Open Door Law. The Open Door Law does not require the

governing bodies of public agencies, such as the City of Bloomington Board of Public Works, to

utilize an agenda.5 Nor does the Open Door Law prohibit a governing body from modifying or

adding to an agenda during a meeting. Indiana's Public Access Counselor, the state

administrative agency charged with resolving disputes related to the Open Door Law, has

5While the Open Door Law requires the governing bodies of public agencies to provide notice of public meetings, it
does not require governing bodies to utilize an agenda. I.C. § 5-14-1.5-5. Notice of a public meeting's date, time,
and location is not the same as an agenda of business that might be considered during the meeting. Notices and
agendas are different items, and Hats has confused them.

12
repeatedly confirmed that agendas may be modified or added to during a meeting.6 Hats'

contention that the City violated the Open Door Law is mistaken.

21. With regard to the alleged deficiency in the bond resolution, the Indiana Code

requires that "[t]he legislative body of the unit must adopt a resolution that specifies the public

purpose of the bond ...." I.C. § 36-7-14-25.1(c). Here, the bond resolution expressly states that

the City "intends to construct a public parking garage on Fourth Street" and that such project

"will serve a public purpose and be of public benefit." (See Complaint, Exhibit A (Resolution

2019-43, Board of Public Works Fourth Street Parking Garage Authorization to Purchase).)

Thus, the public purpose of the bond is plainly stated, and Hats' objection is overruled.

D. The Complaint accurately identifies all necessary parties with interests in the
subject property.

22. A complaint for condemnation must include "[t]he names of all owners, claimants

to, and holders of liens on the property, if known, or a statement that they are unknown. These

owners, claimants, and holders of liens shall be named as defendants." I.C. § 32-24-1-4(b)(2).

23. Hats contends that the City's Complaint is defective because it does not name

Monroe County, Indiana, and that Monroe County "may have an interest in the subject property

by virtue of real estate taxes it may be owed."(Objections at 9-10.) Yet, even if Monroe County

"may be owed" taxes, there is no evidence that it has a lien on the property. Additionally, Hats

cannot complain that another party was not named in the condemnation complaint, as the failure

6 See, e.g., Op. of the Public Access Counselor 05-FC-147 ("There is nothing in the Open Door Law that requires a
public agency to utilize an agenda. Also, the notice requirements in the Open Door Law do not require that an
agency give advance notice of what will be discussed during a public meeting . . . This office has stated many times
that a governing body may add to or deviate from its agenda during the course of a meeting."); Op. of the Public
Access Counselor 09-FC-40 ("It has long been held by this office, though, that "[b]ecause the ODL does not require
an agenda, it is not a violation of the ODL to add or omit discussion items during the meeting or otherwise deviate
from the agenda." See Opinion ofthe Public Access Counselor 04-FC-166 . . . The premise that a governing body
may deviate from its agenda is also provided on page 9 of my office's Handbook on Indiana's Public Access Laws,
Updated April 2008, available at www.in.gov/pac."); Op. of the Public Access Counselor 12-FC-112 ("If a public
agency utilizes an agenda, the ODL does not prohibit it from changing or adding to the agenda during the
meeting.").
13
to name a tenant as a party defendant in a condemnation lawsuit is not grounds for objection by

the owner. Therefore, this objection is also overruled.

E. The Complaint seeks appropriate relief under Indiana law.

24. Finally, Hats objects that the Complaint is defective "because it requests relief to

which [the City] is not entitled."(Objections at 10-11.) This objection is essentially the same as

the first, as Hats contends that the City's Complaint only alleges that it is seeking to construct a

parking garage and fails to mention the first floor retail space. This argument fails for the same

reasons identified above. The parking garage is the primary purpose of the taking and is an

appropriate basis for the use of the City's eminent domain powers. The fact that the parking

garage will incidentally include first floor commercial space in order to comply with a planning

and development ordinance does not negate this public purpose nor does it render the taking

unlawful.

Order

IT IS THEREFORE ORDERED,ADJUDGED, AND DECREED that:

1. The Court, after considering the evidence and argument, overrules the Objections

asserted by Defendant, 222 Hats LLC.

2. The Plaintiff, City of Bloomington, shall be and is hereby entitled by law to

condemn the real estate located at 222 S. Walnut Street, Bloomington, Indiana, 47401 ("Real

Estate") which has the following legal description:

The South Half of In-Lot Number Thirty-three (33) in the City of

Bloomington, Indiana, as set out on the original Plat of the City of
Bloomington, Indiana, as shown in Plat Book No. 1 at page 4 (now Plat
Cabinet B, Envelope 1), in the office of the Recorder of Monroe County,
Indiana.

14
 Tax Parcel No. 53-05-33-310-173.000-005; Auditor's Parcel No.: 013-
05940-00

3. The Clerk of this Court shall promptly send, via the Indiana E-Filing System or

regular mail, a copy of these Findings of Fact, Conclusions of Law, and Order of Appropriation

to counsel for the Plaintiff and counsel for the Defendants.

4. Counsel for the City shall tender to the Court, within ten (10) days of this Order

of Appropriation, a proposed Oath of Appraisers, proposed Instructions to Appraisers, a

proposed Report of Appraisers, and a proposed Entry and Order.

Dated:
Judge, Monroe Circuit Court

Distribution:

Alan S. Townsend
atownsend@boselaw.com

Michael Rouker
roukerm@bloomington.in.gov

Larry D. Allen
allenl@bloomington.in.gov

David L. Ferguson
dlf@ferglaw.com

Jason L. McAuley
Jason@kochmcauley.com

J. Eric Rochford
erochford@cohenandmalad.com

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