Plan Commissioners Punt Upzoning to the Council — Along With Its Risks

By Peter Dorfman

In its April 1 hearing, the Plan Commission — having been assailed by a largely critical audience and obviously realizing they had changed absolutely no one’s mind on upzoning Bloomington’s core — voted 6-3 to send the UDO amendment eliminating single-family zoning to the City Council with a recommendation to approve.

To put it concisely, they punted.

In explaining her intention to vote No, Susan Sandberg, the City Council appointee to the Commission and a strong opponent of the upzoning measure, told the Commission and the citizen audience she was looking forward to moving the plex discussion to the Council (of which she is an At Large member) and correcting the many errors made in Plan Commissions deliberations.

But commissioners who voted in favor of the upzoning amendment — most pointedly Flavia Burrell (a Board of Public Works appointee) — also sought to reassure disappointed citizen attendees that they would have another shot at the amendment in City Council hearings. The commission had other options; they could have rejected the plex amendment, which would have kicked it back to the Planning & Transportation Department for more revisions, which eventually would have meant another round of commission hearings on the new version. Or they could have passed it on to the Council with no recommendation on approval.

Commissioners talked up what they saw as virtues of the upzoning, but left a clear impression that they just wanted the issue off their plates. Now it’s the Council’s hot potato.

Much of the Q&A among commissioners and the Mayor’s staff was superficial rationalization. At one point, Burrell asked Planning staffer Jackie Scanlan for clarification on whether historic districts would be protected from objectionable plex development by their neighborhood design guidelines; Scanlan assured her that they would be protected, but didn’t specify how the guidelines would protect neighborhoods, or from what. That was good enough for Burrell, even though:

• Historic guidelines can arm a district to object to the Historic Preservation Commission about a proposed plex that violates neighborhood aesthetic standards, and can be written to restrict the height or mass of a larger structure such as a triplex or quad. But guidelines provide no practical protection against a duplex, which could increase the occupancy from three unrelated adults to six, could be built without demolishing an existing house and would not need to be much larger than the original house; and
• Obviously, guidelines offer no protection at all to core neighborhoods like Eastside, Bryan Park or Waterman, which are not historically designated.

Perhaps the evening’s most provocative conversation was focused on the Planning staff’s contention that the administration could create a system to monitor, at regular intervals, the impact of new density in upzoned neighborhoods and, if adverse effects develop, to take some unspecified action to reverse the damage. 

This suggestion obviously was intended to assure residents that if their concerns about rampant overdevelopment of their neighborhoods by well-heeled  out-of-town corporate developers were realized (exhaustively documented concerns the commission and other upzoning advocates have naively dismissed as unfounded), the city could step in and reverse course.

There is more than just a clash of ideologies going on here. There is a very tangible element of legal risk to the city in proceeding with this irresponsible “experiment” (which is how the commissioners and staff keep referring to the upzoning plan). Thursday night, former Bloomington Mayor Tomi Allison pointedly called attention to that risk.

Upzoning advocates are laboring under a misconception about the reversibility of this policy. Once we open this door, we will never close it again. We have no idea how the city’s planners would monitor the results of eliminating single family zoning or what they would recognize as a problem. We have no idea what scale of new plex development would trigger concern on the part of the administration. We have no idea what action the administration would take if out of town developers did rush in and buy up the scarce affordable houses in the core. And if they did, and the city tried to cap plex development or reinstate single family zoning, developers’ lawsuits would break the city. 

Faced with this objection, commissioners called on City Attorney Mike Rouker to clarify the city’s exposure to litigation in the event the Mayor or Council tried, down the road, to reverse the upzoning. The technical term for the principle behind such lawsuits is “taking.” The plaintiff would contend that he had acquired properties intending to convert them to duplexes, when the then-current ordinance allowed such conversions; the city’s downzoning of neighborhoods would prevent those plex conversions and thus “take” something of considerable value from the plaintiff, who is now entitled to compensation for that taking.

Rouker was non-committal, saying he could not advise the commission with authority what the likelihood of such litigation would be or whether the city would prevail. Scanlan and the commissioners noted that the city had downzoned once before, when Mayor Allison reduced the maximum occupancy in housing units from five unrelated adults to three, back in the 1990s. No one could remember any takings lawsuits resulting from that change, a quarter century ago — hardly a definitive finding.

What Tomi Allison identified last night is a genuine, potentially serious liability exposure for the City of Bloomington. The city’s attorney acknowledged that risk. But the Plan Commission went ahead and voted to recommend approval of the upzoning amendment to the City Council, despite this exposure.

What this clearly indicates is either that:

• The administration, despite its musings about monitoring and reporting of the impact of upzoning of neighborhoods, has no intention whatsoever of reversing course on it, no matter what that impact is, OR
• The administration and its appointed commissioners are willing to subject the city to what any sane observer who gave it even cursory thought would consider an astonishingly irresponsible legal risk. 

There is no going back from the decision to upzone Bloomington, and the Mayor needs to throw out his three-ring binder and stop kidding us about this.

What comes next? Monday, April 5, the Plan Commission will take up the matter of the zoning map, which it never got to Thursday night. There is no telling what mischief the commission has in mind for the map. It already has rejected compromises the city planners offered in response to public outcry over the original upzoning proposal. While commissioners asserted several times Thursday night that core neighborhoods would only be asked to absorb duplexes, upzoning advocates have indicated they would try to convince the commission to restore the Residential Urban (R4) zoning that blanketed the core on the original draft map the city released last fall. That would introduce triplexes and quadplexes as permitted uses as well. 

Who knows whether commissioners would go for such a suggestion, or what other surprises they might have in store? Monday’s hearing starts at 5:30. The Zoom link is:

https://bloomington.zoom.us/j/93543829674?pwd=TlY4TERtN2hQdTc4YzA1d0psOHdkQT09