Glorius Bethlehem Temple, et al vs. Florida Dep't of Trans. - Complaint filed 09.27.13
-
Upload
andrew-brigham -
Category
Documents
-
view
84 -
download
0
description
Transcript of Glorius Bethlehem Temple, et al vs. Florida Dep't of Trans. - Complaint filed 09.27.13
-
- 1 -
IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA
CASE NO.: DIVISION: PARCELS: 187, 191, 193, 197
GLORIUS BETHLEHEM TEMPLE, INC., IN TRUST FOR FLORIDA STATE COUNCIL, INC., 29TH EPISCOPAL DISTRICT, PENTECOSTAL ASSEMBLIES OF THE WORLD, INC.,
Plaintiff, v. STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,
Defendant. _____________________________________/
COMPLAINT
Plaintiff, Glorious Bethlehem Temple, Inc., in Trust for Florida State Council, Inc.,
29th Episcopal District, Pentecostal Assemblies of the World, Inc., ("Glorious Bethlehem
Temple") by and through undersigned counsel, hereby file this action against Defendant,
State of Florida Department of Transportation, ("FDOT"), alleging as follows:
Jurisdiction
1. This is an action regarding certain property in Duval County, Florida, that is
owned by a religious assembly or institution.
2. This action involves real property that exceeds $15,000 in value, exclusive
of attorneys fees and costs.
blaingTypewritten Text
blaingTypewritten TextCV-D
blaingTypewritten Text2013-CA-008825
-
- 2 -
3. Jurisdiction is invoked pursuant to the First, Fifth, and Fourteenth
Amendments to the Constitution of the United States of America.
4. Jurisdiction is invoked pursuant to Article I, 2, 3, 9, 21 and 22, and
Article X, 6, of the Constitution of the State of Florida.
5. Jurisdiction is also invoked pursuant to the Religious Land Use and
Institutionalized Persons Act (RLUIPA).
Parties
6. Plaintiff, Glorious Bethlehem Temple, Inc., in Trust for Florida State Council,
Inc., 29th Episcopal District, Pentecostal Assemblies of the World, Inc., ("Glorious
Bethlehem Temple") is a religious assembly or institution consisting of church members
who are predominantly African American.
7. Plaintiff, Glorious Bethlehem Temple, owns property consisting of a
sanctuary building, occupying a single lot, and several other nearby lots, all located along
Wister Street and Waldo Avenue, in Jacksonville (the Subject Property).
8. Defendant, State of Florida, Department of Transportation (hereafter,
FDOT), is a political subdivision of the State of Florida and is actively engaged in the
implementation of its I-95 Overland Bridge Project (the Project).
9. More specifically, Duval County Property Appraiser identifies the Subject
Property under parcel identification numbers 130276-0000, 130347-0000, 130279-0000,
and 130283-0000. These parcel identification numbers from the Duval County Property
Appraiser correspond, respectively, to FDOTs I-95 Overland Bridge Project Parcels 187,
191, 193, and 197.
-
- 3 -
General Allegations
10. Glorious Bethlehem Temple is a church with over a fifty year history that is
woven into the fabric of the neighborhood which surrounds its location at 2210 Wister
Avenue, Jacksonville, Florida. In fact, the church has survived and thrived after the
neighborhood was originally bifurcated by I-95 so many years ago. The current pastor is
Donald Richardson, who began attending the church in 1978. He has served for the past
13 years, first as an associate pastor and now as senior pastor. His predecessor before
him had served the church as its pastor for over 40 years.
11. Additionally, Glorious Bethlehem Temple is one of five Jacksonville area
churches belonging to the Pentecostal Assemblies of the World. Of the five churches,
Glorious Bethlehem Temple is the oldest of the three congregations and has oversight
responsibilities over the other sister churches. It is the only one of the five churches
located south of the City of Jacksonville, east of the St. Johns River, and still proximate to
downtown. The real property belonging to the church, and its members, are under the
care of Bishop Billy G. Newton. Bishop Newton is also the pastor of Word of God church
in Orlando, Florida.
12. Today, Glorious Bethlehem Temple presently has approximately 85
communing members with approximately 130 total congregants in regular attendance on
Sunday mornings. Attached and incorporated as Exhibit A hereto are photographs of
Glorious Bethlehem Temple, its property and, more importantly, its people.
13. From 2010 to 2012, FDOT proceeded with the Project Engineering &
Design (PD&E) phase of its I-95 Overland Bridge Project which resulted in the
preparation of a comprehensive Environmental Impact Study (EIS) that included both
an Interchange Modification and Pond Siting Reports.
-
- 4 -
14. Because FDOT's I-95 Overland Bridge Project is receiving federal funds,
FDOT is required as part of its EIS to evaluate different build or no-build alternatives in
order to justify its selection of a recommended alternative upon which to proceed.
15. FDOT is also required to conduct public hearings and workshops to provide
public information and receive public input and comment during its PD&E phase of its I-95
Overland Bridge Project.
16. For this purpose, in 2010, FDOT right-of-way representatives requested
that Glorious Bethlehem Temple allow a number of these public hearings and workshops
be held at the sanctuary building. Glorious Bethlehem Temple consented to allow FDOT
to use its church facilities for this civic purpose.
17. These public hearings and workshops occurred at different times between
2010 and 2012. Many who attended were understandably concerned when FDOT
informed them that needs of the project may require the taking of private property for
right-of-way. Many were church members of Glorious Bethlehem Temple. They were
not only concerned for their homes, but also for their church.
18. At these public hearings and workshops, FDOT representatives, trained
and experienced with the public acquisition process, gave assurances to those who
attended that the need for acquisition would be properly studied and that those whose
properties would ultimately be acquired would be cared for and fully compensated.
19. After completing its study of alternatives within the framework of an
Environmental Impact Statement (EIS), FDOT determined that it intended to acquire a
whole take of all Glorious Bethlehem Temples property.
-
- 5 -
20. FDOT representatives, trained and experienced with the public acquisition
process, further notified Glorious Bethlehem Temple that FDOT intended to acquire a
whole take of all of Glorious Bethlehem Temples property and that the church would be
cared for through federal relocation assistance and the payment of full compensation.
FDOT representatives informed Pastor Richardson and several church members that the
church would be displaced and would need to relocate.
21. Already, FDOT has proceeded to demolish the houses on the residential
properties it acquired as part of its I-95 Overland Bridge Project within the footprint of
Pond E in Basin 6. This includes all of the lots immediately surrounding and adjacent to
the lots owned by Glorious Bethlehem Temple. Such an acquisition policy and practice
creates a significant blight upon the neighborhood.
22. The residential neighborhood in which the church was located is no more
and the churchs sanctuary is left on an island in the middle of what FDOT has indicated
by its construction plans will be Pond E in Basin 6. The historic pattern of land use has
been completely disrupted by FDOT resulting in a substantial burden on the religious
exercise and assembly of Glorious Bethlehem Temple.
23. Glorious Bethlehem Temple is now the last remaining property within the
footprint of Pond E in Basin 6 that is not acquired by FDOT. Attached and incorporated
as Exhibit B hereto are photographs of the residential properties surrounding the
church that are within the footprint of Pond E in Basin 6.
24. At the urging of FDOTs representatives, Glorious Bethlehem Temple
began efforts to locate a suitable replacement church facility within the immediate area or
a reasonable distance away. Glorious Bethlehem Temple, however, could not locate
-
- 6 -
any improved property for sale within the immediate area or a reasonable distance away
that could be adapted for church use.
25. Without being able to locate any improved property suitable as a
replacement, Glorious Bethlehem Temple was able to locate and purchase a vacant 1.2
acre parcel within 1.3 miles of its present location. The property was formerly subject to
foreclosure which prompted the bank to donate the property to HabiJax. HabiJax was
willing to sell the property for $50,000, understanding that the purchase would enable the
relocation of the church. Attached and incorporated as Exhibit C hereto are
photographs of the substitute property.
26. After purchasing the substitute property, Glorious Bethlehem Temple was
able to work with the City of Jacksonville and Mayor Browns staff to obtain a PUD
rezoning following the normal course of public hearings. The PUD rezoning also
included an exception to a local development code which requires a minimum of 2 acres
for development of a new church, recognizing that the church was relocating because of
the I-95 Overland Bridge Project and trying to remain in the same neighborhood.
27. Glorious Bethlehem Temple retained a contractor that was recommended
to them by HabiJax to provide a design-build contract for constructing a replacement, or
substitute church. After revision, the program of construction for the new sanctuary
building is a reasonable substitute for the church building and parking areas being
acquired by FDOT as a whole take.
28. With regard to the states responsibilities in exercising its eminent domain
power, the Supreme Court of Florida has held that the constitutional guarantee of full
compensation is that which makes the owner whole so far as is possible and
-
- 7 -
practicable. Dade Co. v. Brigham, 74 So. 2d 602, at 604 (Fla. 1950); Jacksonville
Expressway Authority v. Henry G. Dupree, 108 So. 2d 289 (Fla. 1958). Citing from these
two cases, the standard jury instruction reads as follows:
The constitutional requirement of full compensation means that the property owners must be completely paid for that which is taken, and compensated for the whole loss occasioned by the taking. In most cases, it will be necessary and sufficient to full compensation that the award constitute the fair market value of the property. Although fair market value is a reliable standard in determining the amount of full compensation to be paid to the owner, it is not the only standard. It is merely a tool to assist you in determining what is full compensation as guaranteed by the Florida Constitution. In determining full compensation, however, all facts and circumstances that bear a reasonable relationship to the owners loss must be taken into account.
***** The owner is to be put in as good a position financially as he or she would have been if the property had not been taken.
See, Instruction Number 1 Introductory: General Principles; 11.5 Florida Eminent Domain Practice and Procedure, Sixth Edition, 2003.
29. On March 9, 2012, FDOT presented an initial offer to Glorious Bethlehem
Temple for a whole take of all of the churchs property.
30. An initial offer is mandated as part of presuit negotiation procedures set
forth in Chapter 73, Florida Statutes. See, 73.015, Fla. Stat. These procedures require
FDOT to negotiate in good faith.
31. FDOTs initial offer contemplated a whole take of Parcels 187, 191, 193,
and 197 for the purpose of constructing Pond E in Basin 6 of the I-95 Overland Bridge
Project.
-
- 8 -
32. The appraisal upon which FDOTs initial offer was based was premised
upon a $285,750 estimate of fair market value for the existing church land and buildings.
The initial offer also included what FDOT right-of-way administrators refer to as an
incentive of $105,320 which is added to the fair market value estimate to encourage
earlier settlement in order to avoid more significant costs and attorneys fees the state is
obligated to pay if filing a lawsuit. Thus, the total amount of FDOTs initial offer was
$391,070.
33. In light of Floridas constitutional guarantee that the measure of full
compensation be that which makes the owner whole so far as is possible and
practicable, it can be demonstrated that FDOTs estimate for the depreciated value of
Glorious Bethlehem Temples existing building improvements is not sufficient to construct
a replacement church with parking area in accordance with land use and zoning
regulations of the City of Jacksonville. While the cost expended by Glorious Bethlehem
Temple to purchase substitute property and have it rezoned is less than FDOTs
appraisers land value estimate for Parcels 187, 191, 193, and 197, the cost of a new
replacement sanctuary building and parking lot is greater than the depreciated value of an
existing sanctuary building and parking areas.
34. More specifically, FDOTs appraisers estimate of fair market value was
based upon the land value and the depreciated value of the existing building
improvements. Considering that the original sanctuary building of Glorious Bethlehem
Temple was constructed in 1954, the depreciation applied to the cost of a new building is
significant. Likewise, the existing church does not have a formal parking lot. Those
attending worship services park on the churchs other three nearby lots which are
-
- 9 -
unimproved except for level grass areas which are used for parking under an
aesthetically pleasing tree canopy. FDOTs estimate considered only the value of land
for these three other lots which are used for parking and other church activities.
35. Amidst presuit negotiations, FDOT proceeded with the acquisition of all of
the residential properties immediately surrounding Glorious Bethlehem Temple needed
for Pond E in Basin 6 of its I-95 Overland Bridge Project as depicted in FDOTs
right-of-way maps and construction plans. This placed tremendous pressure on the
Pastor Richardson and church members, creating extraordinary anxiety in that the church
property was the only property left to be acquired by FDOT for Pond E.
36. During the course of presuit negotiations, Glorious Bethlehem Temple
informed FDOT that it would not be able to replace the church after its whole take for an
amount less than $725,000. Because the church was not in debt before the taking, and
was losing its church property through no fault of its own to accomplish the public
purposes alleged by FDOT in its I-95 Overland Bridge Project, Glorious Bethlehem
Temple would not accept FDOTs initial offer with the incentive because the church did
not believe it was the proper measure of full compensation.
37. On September 25, 2012, a FDOT representative forwarded a letter that
informed the church that FDOT would be proceeding to file eminent domain proceedings
and that, on the day that the lawsuit was filed, the incentive of $105,320 would expire.
Thereafter, the letter said, FDOT would use only the appraisal estimate of fair market
value of $285,750 without the incentive as the basis of its negotiations. Glorious
Bethlehem Temple maintained that FDOTs initial offer, plus incentive, was not sufficient
to place the church in the same position, financially, after the taking as the church was
-
- 10 -
before the taking.
38. On October 5, 2012, FDOT passed a Parcel Resolution to authorize the use
of eminent domain to take private property necessary to accomplish the public purpose
associated with its I-95 Overland Bridge Project, specifically for Parcels 187, 191, 193
and 197.
39. On November 30, 2012, FDOT filed its lawsuit styled State of Florida,
Department of Transportation FDOT v. Glorius Bethlehem Temple, In Trust for Florida
State Council, Inc. 29th Episcopal District, Pentecostal Assemblies of the World, Inc. et al.,
Case No. 2012-CA-012858 (Fla. 4th Judicial Circuit Court, Duval Co.) and later served a
Summons to Show Cause together with a Petition in Eminent Domain on Glorious
Bethlehem Temple on January 2, 2013.
40. Glorious Bethlehem Temple responded by serving its Answer on February
1, 2013.
41. Glorious Bethlehem Temple also served discovery on February 1, 2013.
The discovery requested that FDOT produce its study of the environmental impacts of
proposed alternatives for the alignment of its highway facilities. This included all of the
documents prepared by FDOT during the Project Engineering & Design (PD&E) phase
of its I-95 Overland Bridge Project.
42. FDOT responded to discovery on March 15, 2013, only four days prior to
the hearing in which FDOT sought an Order of Taking to acquire a whole take of Parcels
187, 191, 193, and 197. Among the documents produced was FDOTs EIS that included
both the Interchange Modification and Pond Siting Reports.
-
- 11 -
43. A review of the responsive documents related to the EIS created further
anxiety for Glorious Bethlehem Temple and gave cause to question FDOTs
decision-making concerning which alternative was selected for Pond E in Basin 6.
44. In regards to Glorious Bethlehem Temple, the EIS showed that FDOT
gave no consideration to the displacement of Glorious Bethlehem Temple as a result of
condemnation for the project for Pond E in Basin 6 even though the purpose of the study
was to identify environmental impacts relating to the no-build and build alternatives for the
project, including cultural and social impacts.
45. Glorious Bethlehem Temple was left without any mention in the study
between alternatives set forth for stormwater pond sites within Basin 6, including Pond E.
This is so despite the fact that FDOT held its public hearings and workshops in the
sanctuary building owned by Glorious Bethlehem Temple during the course of such
study. The church, of course, is located in the footprint of proposed Pond E. It was
evident to FDOT that Glorious Bethlehem Temple predominantly consists of church
members who are African American.
46. By contrast, when looking at another basin studied within the I-95 Overland
Bridge Project, Basin 5, FDOT gave consideration to the displacement of property owned
by another church, Southside Assembly of God. The displacement of this property,
although vacant, was identified by FDOT as a cultural and social impact, because the
vacant property was church-owned. Such factor was considered in selection between
alternatives for the Basin 5 stormwater pond. Instead of displacement of the property
owned by the church, FDOT chose to acquire a commercial storage facility as the
preferred alternative. It was evident to FDOT that Southside Assembly of God
-
- 12 -
predominantly consists of church members who are Caucasian.
47. The primary documents, attached and incorporated hereto, show the
following:
Exhibit D Addendum Interchange Modification Report I-95 Overland Bridge Northbound Modifications, FDOT District Two, December 2010:
3.6 Existing Environmental Conditions, 3.6.2 Cultural Resources There is one school, one cemetery and multiple churches [within the study area]. None of these cultural resources are within close proximity of the proposed changes, and are not expected to be impacted by the modifications. Page 3-18.
6.4 Recommended Alternative The Build Alternative can be implemented with no impact to sensitive environmental areas or existing cultural assets. Page 6-32.
Exhibit E Addendum Interchange Modification Report I-95
Overland Bridge Northbound Modifications (IMR), FDOT District Two, December 2012:
3.4 Existing Environmental Conditions, 3.4.1 Cultural Features As documented in the 2010 Addendum Interchange Modification Report I-95 Overland, there is one school, one cemetery, and multiple churches in the study area limits. None of these cultural resources are expected to be impacted by the modifications proposed under the D-B alternative in this IMR Addendum. Page 3-3.
Exhibit F Pond Siting Report, I-95 Overland Bridge
Replacement, FDOT District Two, July 2011 (prepared by Arcadis):
Compare
Analysis of Basin 5, Alternative 1 and 2 which identifies one of the social impacts by referencing that, It is currently vacant land that is owned by a church, Southside Assembly of God.
-
- 13 -
Page 20 and Table 7 on Page 30.
With
Analysis of Basin 6, Alternative 2, in regards to social impacts, makes no mention whatsoever of improved property that is owned by a church, Glorious Bethlehem.
Page 21 and Table 8 on Page 31.
48. On March 19, 2013, the parties appeared before the Honorable Jean M.
Johnson, Circuit Judge, 4th Judicial Circuit in and for Duval County, for a hearing on Order
of Taking.
49. At the hearing on Order of Taking on March 19, 2013, Glorious Bethlehem
Temple asserted its concerns over FDOTs Pond Siting Report as it appeared that
insufficient study was performed by FDOT to evidence that any consideration was given
to the displacement of Glorious Bethlehem Temple.
50. Instead of requesting that the Court deny FDOTs authority to take,
however, Glorious Bethlehem Temple requested that the hearing on Order of Taking be
continued so as to allow for a court-ordered mediation.
51. Glorious Bethlehem Temple contended that, if FDOT did not consider the
environmental impacts, including cultural and social impacts, when it should have at the
time it was considering no-build and build alternative locations for its projects stormwater
ponds, FDOT would be able to correct its failure by resolving the dispute over full
compensation that would allow the church to proceed to rebuild on the substitute property
it acquired and for which it obtained a PUD rezoning with the City.
52. Judge Johnson granted Glorious Bethlehem Temples request and ordered
-
- 14 -
mediation between the parties to occur on or before April 18, 2013.
53. Judge Johnson also provided that, if mediation concluded in impasse,
FDOT would be able to set the continued hearing on Order of Taking on an emergency
basis based upon FDOTs representations, made in open court.
54. FDOT represented that FDOT required title to Parcels 191 and 193 by May
17, 2013, because of FDOTs contractual obligation to turn the property over to the
projects design-build firm by June 1, 2013. FDOT also represented that it required title
to Parcels 187 and 197 (sanctuary building) by August 15, 2013.
55. This was consistent with FDOTs counsels representations to Glorious
Bethlehem Temples counsel before the hearing when inquiry was made concerning
extended possession. Attached and incorporated as Exhibit G hereto is a copy of the
e-mail confirmation.
56. As part of the Courts granting its request for a continuance of the hearing
on Order of Taking, Glorious Bethlehem Temple committed to exchange an appraisal to
support its valuation contentions prior to mediation. To this end, Glorious Bethlehem
Temple timely exchanged an appraisal which considered the church to be a limited
market property wherein the proper appraisal methodology requires the appraiser to
estimate the land value using the comparable sale method and estimate the building and
improvement value based upon the replacement cost of subject improvements without
depreciation consistent with the principle of substitution. Under this appraisal
methodology, the total appraisal estimate was $838,406.
57. Notwithstanding, Glorious Bethlehem Temple informed FDOT prior to
mediation that it would not negotiate from the total appraisal estimate of $838,406, but
-
- 15 -
would instead reduce the amount by removing elements of financing, entrepreneurial
incentive, and owners risk for escalating building costs on the assumption that a
settlement could be achieved to avoid delay and allow the church to proceed to build on
its substitute property and avoid those elements. The church desired only that the
measure of full compensation pay for the costs associated with building a sanctuary and
parking lot of similar size to the church facilities taken by FDOT.
58. Mediation commenced on April 10, 2013, at the office of Glorious
Bethlehem Temples counsel in Jacksonville, Florida. Mr. Larry Gendzier, former Chief
of Eminent Domain, Office of General Counsel, FDOT, Tallahassee, served as mediator.
At FDOTs request, mediation was continued until April 17, 2013, at the office of FDOT
District Two in Lake City, Florida. Mr. Gendzier declared a mediation impasse at
approximately 1:00 p.m., April 17, 2013, at the office of FDOT District Two in Lake City,
Florida.
59. Immediately following the mediation impasse, FDOT served Notice of
Voluntary Dismissal Without Prejudice of its eminent domain lawsuit, State of Florida,
Department of Transportation FDOT v. Glorius Bethlehem Temple, In Trust for Florida
State Council, Inc. 29th Episcopal District, Pentecostal Assemblies of the World, Inc. et al.,
Case No. 2012-CA-012858 (Fla. 4th Judicial Circuit Court, Duval Co.), by U.S. Mail and an
e-mail message at 2:47 p.m., April 17, 2013.
60. It is through its Voluntary Dismissal Without Prejudice that FDOT seeks to
force Glorious Bethlehem Temple to accept less than full compensation for the taking of
Parcels 187, 191, 193, and 197. It is contrary to what FDOT represented in open court
with regard to its need for Parcel 187, 191, 193, and 197. It employs a bait and switch
-
- 16 -
negotiating tactic that is used to force a compromise of constitutional rights. In essence,
FDOT is saying that it is the choice of Glorious Bethlehem Temple to either accept less
than what the church knows to be full compensation for the taking or remain stranded on
an island in the middle of what FDOT has indicated by its construction plans will be Pond
E in Basin 6. This, of course, follows FDOT decimating the historic pattern of land use
resulting in a substantial burden on the religious exercise and assembly of Glorious
Bethlehem Temple. It is the consummate bully tactic which abuses the discretion
afforded FDOT when wielding the governments sovereign power.
61. Shortly after serving its Notice of Voluntary Dismissal Without Prejudice,
FDOTs counsel invited Glorious Bethlehem Temple to continue negotiations for
voluntary acquisition. However, FDOT is well aware that dismissal of its eminent
domain lawsuit removes the possibility of a jury determination of the constitutional
measure of full compensation should FDOT and Glorious Bethlehem Temple not be able
to agree. Meanwhile Glorious Bethlehem Temple faces the prospects of having already
purchased substitute property, having already paid for a PUD rezoning, and now being
left behind after the transformation of its immediate surroundings from a residential
neighborhood to a FDOT highway project and stormwater pond construction site. FDOT
knows and intends for this to crush the churchs resolve to hold fast for a constitutional
measure of full compensation.
62. Indeed, these oppressive pre-condemnation tactics leave the church in an
unduly vulnerable position, uncertain as to its property rights or its future, as FDOT
explores possibilities for design and construction of its stormwater pond without the
churchs property afforded by its design-build method of procurement of engineering
-
- 17 -
and contracting services. Although this design-build method has existed as a creature
of statute, it has been rarely used by FDOT until recently. Through this design-build
method, in accordance with the facts and circumstances of this case, FDOT is
transferring the decision-making on whether or not Parcels 187, 191, 193, and 197 are
necessary for public acquisition to a third party. While FDOT has indicated that it no
longer needs the churchs property for the construction of Pond E in Basin 6, FDOT has
not provided to Glorious Bethlehem Temple any alternative right-of-way maps or
construction plans to show how Pond E in Basin 6 can be constructed without the
churchs property.
63. Glorious Bethlehem Temple responded by challenging the validity of
FDOTs service of the aforesaid Notice of Voluntary Dismissal Without Prejudice, seeking
as well to amend its answer so as to assert a counterclaim. Upon hearing, Judge
Johnson, denied the relief sought and entered an Order on Amended Motion to Strike
Pleading or, in the Alternative, Strike E-mail Service which denied the relief sought, has
since appealed to the Fifth District Court of Appeal in Glorius Bethlehem Temple, In Trust
for Florida State Council, Inc. 29th Episcopal District, Pentecostal Assemblies of the
World, Inc. et al. v. State of Florida, Department of Transportation, Case No. 1D13-2980
(Fla. 5th DCA).
64. Every Sunday, when arriving at the church for worship services, the Pastor
Richardson and members of Glorious Bethlehem Temple are reminded of their
vulnerable position when looking at the all of the bulldozed lots around their sanctuary
building. This is not what public acquisition of right-of-way should look like under the
Constitution of the United States of America and the State of Florida Constitution.
-
- 18 -
65. Viewed in their entirety, all of FDOTs acquisition policies and practices with
regard to Glorious Bethlehem Temple constitute oppressive pre-condemnation conduct.
The church and its members are presently experiencing the very environmental impacts,
including cultural and social impacts, that FDOT failed to consider during the PD&E phase
of its I-95 Overland Bridge Project. Such failure is evidenced by the EIS, together with
the associated Interchange Modification and Pond Siting Reports, which acknowledged
what impacts may accrue to one church assembly if locating a stormwater pond within its
neighborhood in Basin 5 while completely ignoring the impacts now experienced by
Glorious Bethlehem Temple because it is located within the footprint of Pond E in Basin 6.
Instead of correcting its error by resolving the dispute over full compensation, FDOT has
voluntarily dismissed its eminent domain lawsuit to remove the possibility of a jury
determination of the constitutional measure of full compensation should FDOT and
Glorious Bethlehem Temple not be able to agree. Glorious Bethlehem Temple is now
left on an island in the middle of FDOTs highway project and stormwater pond
construction site to contemplate how vulnerable a position it will remain if not capitulating
to FDOTs bludgeoning tactics.
66. In setting forth the facts and circumstances at bar, it worth reflecting upon
Justice Drews special concurrence in the Florida Supreme Courts 1959 opinion in
Jacksonville Expressway Authority v. Henry G. Dupree Co., 108 So. 2d 289 (Fla. 1958):
The fact that the sovereign is now engaged in great public enterprises
necessitating the acquisition of large amounts of private property at greatly
increasing costs is no reason to depart from the firmly established principle
that under our system the rights of the individual are matters of the greatest
concern to the courts. The powerful government can usually take care of
itself; when the courts cease to protect the individual - within, of course,
-
- 19 -
constitutional and statutory limitations - such individual rights will be rapidly
swallowed up and disappear in the maw of the sovereign. If these immense
acquisitions of lands point to anything, it is to the continuing necessity in the
courts of seeing to it that, in the process of improving the general welfare,
individual rights are not completely destroyed. The fact that the sovereign is
now engaged in great public enterprises necessitating the acquisition of
large amounts of private property at greatly increasing costs is no reason to
depart from the firmly established principle that under our system the rights
of the individual are matters of the greatest concern to the courts. The
powerful government can usually take care of itself; when the courts cease
to protect the individual - within, of course, constitutional and statutory
limitations - such individual rights will be rapidly swallowed up and
disappear in the maw of the sovereign. If these immense acquisitions of
lands point to anything, it is to the continuing necessity in the courts of
seeing to it that, in the process of improving the general welfare, individual
rights are not completely destroyed. COUNT I - OPPRESSIVE PRE-CONDEMNATION CONDUCT
67. Glorious Bethlehem reiterates and alleges paragraphs 1 - 65 as though
fully set forth herein.
68. FDOT has engaged in oppressive pre-condemnation conduct with the
intention of forcing Defendant, Glorious Bethlehem Temple to accept less than
constitutional full compensation in the taking of Parcels 187, 191, 193, 197 for Pond E in
Basin 6 of the I-95 Overland Bridge Project.
69. This is an additional or alternative action for damages arising from the
failure of the FDOT to act in good faith and in violation of fundamental due process, both
procedural and substantive, in its implementation of a program of acquisition for the I-95
Overland Bridge Project.
-
- 20 -
70. Such governmental misconduct has caused blight on Glorious Bethlehem
Temples property and has removed the reasonable investment-backed expectation,
use, and enjoyment of vested rights in private property used by Glorious Bethlehem in
the exercise of religious freedom for over 50 continuous years. Accordingly, pursuant to
Article 1, 2, 9, and 21 and Article X, 6 of the Florida Constitution, and Chapters 73 &
74, Florida Statutes, Glorious Bethlehem Temple is entitled to relief from this Court.
71. FDOT has proceeded beyond mere planning efforts for the I-95 Overland
Bridge Project and has engaged in a deliberate pattern of conduct designed to coerce
Glorious Bethlehem to forgo certain constitutional rights of due process of law and full
compensation in connection with the condemnation of Glorious Bethlehem Temples
private property needed for the public purpose set forth in the project.
72. FDOT has negotiated in bad faith and/or has abused its discretion in the
following manner:
a. failing to consider the environmental impacts, including the social
and cultural impacts, associated with the acquisition of Glorious
Bethlehem Temples property when studying alternative locations for
Pond E in Basin 6 of the I-95 Overland Bridge Project;
b. representing to Glorious Bethlehem Temple over an extended
period of time that acquisition by a whole take was reasonably
necessary to accomplish the public purpose associated with the I-95
Overland Bridge Project and that the entire neighborhood
surrounding the church would likewise be taken for Pond E in Basin
6 of the I-95 Overland Bridge Project;
-
- 21 -
c. representing to Glorious Bethlehem Temple over an extended
period of time that the church would be cared for through relocation
assistance and payment of full compensation and that the church
would need to relocate from its home of over 50 years because of
FDOTs intention to whole take the property;
d. proceeding with its project by acquisition and demolition of
residential properties on all sides of Glorious Bethlehem Temples
property and thereby disrupting the traditional neighborhood pattern
of use and value that have been sustained by land use and zoning
regulations which the church had enjoyed for over 50 years;
e. to segregate Glorious Bethlehem Temple from other similarly
situated property owners, leaving Glorious Bethlehem Temple in a
class of one, when both performing its EIS and Pond Siting studies
and when acquiring all other properties marked for Pond E Basin 6
except Glorious Bethlehem Temple, leaving the church to weather
the storm associated with the project construction around it and
doubt as to the future now that the neighborhood pattern has been
completely disrupted and FDOT owns all of the surrounding
property; and
f. when knowing that Glorious Bethlehem Temple had relied on its
representations by purchasing substitute property and when
representing for three years that it would whole take the property
only to threaten leaving the church stranded on an island in the
-
- 22 -
middle of its highway project, by using the potential of a voluntary
dismissal in a coercive manner in an all-out attempt to force Glorious
Bethlehem Temple to accept an amount less than full compensation
or forgo a jury trial that would otherwise establish the constitutional
measure.
73. FDOT has failed to abide to a fair and equitable program of acquisition.
Instead, FDOT has employed its own policies and practices utilizing condemnation blight,
delay, threats, and bait-and-switch tactics in negotiations. Again, such deliberate
conduct toward Glorious Bethlehem Temple is intended to coerce Glorious Bethlehem
Temple into accepting an amount less than the constitutional measure of full
compensation for a partial taking of their private property.
74. The reasons behind FDOTs present attempt to voluntarily dismiss these
eminent domain proceedings are entirely pre-textual; FDOT has moved from the
allegations of its own Petition as to the reasonable necessity of taking Glorious
Bethlehem Temples property and representations in open Court as to requiring title to
Parcels 187, 191, 193, 197 by dates certain within such a short time that the only thing
happening in-between was mediation with the owner.
75. The program of acquisition is one-sided, and oppressive, making the
exercise of the eminent domain power a more harsh process than is reasonably
necessary because the constitutional protections of due process of law and full
compensation are threatened to be held out-of-reach from Glorious Bethlehem Temple
by the FDOT.
-
- 23 -
76. Because the policies, practices, and tactics of FDOT are without the check
and balance, Glorious Bethlehem Temple seeks access to the courts so that a
constitutionally appropriate manner of public acquisition proceeds wherein the judicial
branch may adjudicate the proper manner in which the exercise of the sovereign power
may be completed while securing the constitutional guarantee to the individual whose
private property is needed to further the public good.
77. The program of acquisition and associated oppressive conduct by FDOT
has proximately caused Glorious Bethlehem Temple to incur economic losses which
Glorious Bethlehem Temple would not otherwise have suffered due not to the
uncertainties of whether their property will be acquired for the I-95 Overland Bridge
Project, but based on representations made by FDOT.
78. Glorious Bethlehem Temple has been obliged by the actions of FDOT to
engage attorneys to represent themselves and to incur costs in order to advance the
claims of this action.
WHEREFORE, Glorious Bethlehem Temple respectfully prays that this Court:
A. Declare that FDOTs program of acquisition, its policies, practices, and
tactics, alleged herein constitute bad faith or an abuse of its statutorily delegated
authority and oppressive pre-condemnation conduct;
B. Declare that FDOT forthwith immediately file eminent domain proceedings
to condemn Parcels 187, 191, 193, 197 pursuant to the Chapters 73 and 74, Florida
Statutes, so that Glorious Bethlehem Temples private property will be taken with due
process of law and with payment of full compensation in court proceedings held without
sale, denial, or delay;
-
- 24 -
C. Empanel a jury to determine the full compensation along with any
compensatory damages due Glorious Bethlehem Temple for economic damages
consequent of FDOTs oppressive pre-condemnation conduct, together with interest; and
D. Award Glorious Bethlehem Temples costs and fees incurred in bringing
this action; and
E. Grant such other relief as this Court deems proper.
COUNT II DECLARATORY AND INJUNCTIVE RELIEF
79. Glorious Bethlehem Temple reiterates and alleges paragraphs 1 - 65 as
though fully set forth herein.
80. This is an action for declaratory relief and supplemental injunctive relief,
pursuant to Chapter 86, Florida Statutes.
81. Specifically, Glorious Bethlehem Temple seeks a declaration that the
practices of the FDOT herein alleged unlawfully infringe upon the Glorious Bethlehems
constitutional rights to due process of law and access to courts, which the FDOT has a
duty to secure for landowners in the process of acquisition of private property for public
purpose.
82. A controversy has arisen between Glorious Bethlehem Temple and FDOT,
as alleged herein, and, as a result, there is doubt as to the rights and status of the parties.
83. Glorious Bethlehem Temple alleges that there is a bona fide, actual,
present and practical need for a declaration of their constitutional rights.
84. FDOT, as part of its negotiating tactic, is in bad faith or abuses its discretion
by voluntarily dismissing its eminent domain proceeding.
-
- 25 -
85. Such governmental misconduct has caused blight on Glorious Bethlehem
Temples property and has removed the reasonable investment-backed expectation,
use, and enjoyment of vested rights in private property used by Glorious Bethlehem in
the exercise of religious freedom for over 50 continuous years. Accordingly, pursuant to
Article 1, 2, 9, and 21 and Article X, 6 of the Florida Constitution, and Chapters 73 &
74, Florida Statutes, Glorious Bethlehem Temple is entitled to relief from this Court.
86. The program of acquisition of FDOT, together with its policies, practices,
and tactics, violate the following constitutional rights of Glorious Bethlehem Temple, to
wit:
a. Glorious Bethlehem Temples rights under Article I, Section 2, Fla.
Const., to be equal before the law and have inalienable rights,
among which are the right to enjoy and defend life and liberty, to
pursue happiness, to be rewarded for industry, and to acquire,
possess and protect property.
b. Glorious Bethlehem Temples rights under Article I, Section 9, Fla.
Const., which provides, no person shall be deprived of life, liberty or
property without due process of law...
c. Glorious Bethlehem Temples rights under Article I, Section 21, Fla.
Const., which provides, the courts shall be open to every person for
redress of any injury, and justice shall be administered without sale,
denial or delay.
d. Glorious Bethlehem Temples rights under Article X, Section 6, Fla.
Const, which provides, no private property shall be taken except for
-
- 26 -
a public purpose and with full compensation thereof paid to each
owner or secured by deposit in the registry of the court and available
to the owner.
87. Glorious Bethlehem Temple further seeks supplemental injunctive relief
requiring the FDOT to provide Glorious Bethlehem Temple with due process by enjoining
FDOT from voluntarily dismissing these eminent domain proceedings.
88. Glorious Bethlehem Temple also seeks damages for losses sustained to
date as a result of FDOTs unlawful conduct together with costs and attorneys fees
incurred in bringing this action to enforce Glorious Bethlehems rights.
89. Glorious Bethlehem Temple has no adequate remedy of law unless and
until the court in this case will declare that the acquisition practices and tactics of the
FDOT alleged herein are contrary to Glorious Bethlehem Temples constitutional rights,
as well as the provisions of 42 U.S.C. 4601 et. seq., the Uniform Real Property
Acquisition Act of 1970.
90. Glorious Bethlehem Temple has no adequate remedy of law unless and
until the court in this case will declare that the acquisition practices and tactics of the
FDOT alleged herein are contrary to Chapters 73 & 74, Florida Statutes, including good
faith in presuit negotiations so as to balance the public need with the individual rights to
procedural and substantive due process.
91. The I-95 Overland Bridge Project is a federally funded and/or assisted
project and therefore the provisions of the Uniform Relocation Assistance and Real
Property Acquisition Act of 1970 are applicable to the acquisition of all property within the
project.
-
- 27 -
92. FDOTs program of acquisition, as applied to Glorious Bethlehem Temple
contravenes the provisions of 42 U.S.C. 4601, et seq. which provides in 4651(7) the
following:
"In no event shall [the condemnor] either advance the time of acquisition or defer
negotiations or condemnation, or take any other action coercive in nature, in order
to compel an agreement on the price to be paid for the property."
Glorious Bethlehem Temple alleges that FDOTs program of acquisition does not comply
with the above federal guidelines and if such is determined accurate in this cause, the
federal funding for the project is in jeopardy.
93. Glorious Bethlehem Temple suffers immediate, continuing and irreparable
injury, to which there is no adequate remedy at law, because the FDOT is without check
and balance and is allowed to continue with its coercive practices and disregard of
constitutional guarantees of private ownership in the acquisition process. Without
judicial intervention, FDOT deliberately suppresses any use and value inconsistent with
its proprietary plans to put the area to public use.
94. The injury to Glorious Bethlehem Temple, if injunctive relief is not granted,
outweighs any potential injury to the FDOT if injunctive relief is granted because the relief
sought would only compel the FDOT to actually proceed with a project for which it is fully
ready and fully funded and which the FDOT already contends is reasonably necessary
for the public interest.
95. Granting the injunctive relief sought herein would not be adverse to the
public interest because the relief sought would only compel the FDOT to proceed with a
public project which is fully authorized, planned, and funded. Furthermore, protection of
individual constitutional rights serves the public interest.
-
- 28 -
96. Glorious Bethlehem Temple has been obliged by the actions of FDOT to
engage attorneys to represent themselves and to incur costs in order to advance the
claims of this action.
WHEREFORE, Glorious Bethlehem Temple respectfully prays that this Court:
A. Declare that the FDOTs program of acquisition, its policies, practices, and
tactics, alleged herein violate Glorious Bethlehem Temples rights under Article I, 2, 9,
and 21, and Article X, 6 of the Florida Constitution;
B. Declare that the FDOTs program of acquisition, its policies, practices, and
tactics, alleged herein violate 42 U.S.C. 4601 et. seq., the Uniform Real Property
Acquisition Act of 1970;
C. Declare that the FDOTs program of acquisition, its policies, practices, and
tactics, alleged herein violate Chapters 73 & 74, Florida Statutes;
D. Declare that FDOT forthwith immediately file eminent domain proceedings
to condemn Parcels 187, 191, 193, 197 pursuant to the Chapters 73 and 74, Florida
Statutes, so that Glorious Bethlehem Temples private property will be taken with due
process of law and with payment of full compensation in court proceedings held without
sale, denial, or delay;
E. Empanel a jury to determine the full compensation along with any
compensatory damages due Glorious Bethlehem Temple for economic damages
consequent of FDOTs oppressive pre-condemnation conduct, together with interest; and
F. Award Glorious Bethlehem Temples costs and fees incurred in bringing
this action; and
G. Grant such other or further relief as this Court deems proper.
-
- 29 -
COUNT III - MANDAMUS
97. Glorious Bethlehem Temple reiterates and alleges paragraphs 1 - 65 as
though fully set forth herein.
98. This is an additional or alternative action for injunctive relief by way of
mandamus.
99. The Florida Eminent Domain Code, Chapters 73 & 74, Florida Statutes,
contains a mandated presuit procedure that is to be conducted in good faith by a
condemning authority acting under its delegation of authority to use the eminent domain
power, in this case, the FDOT.
100. FDOT has a clear legal duty and Glorious Bethlehem Temple has a clear
legal right to good faith in negotiations when the eminent domain power is delegated to
one of the parties to the negotiations.
101. FDOT cannot lawfully engage in a program of acquisition, including its
policies, practices, and tactics, that are oppressive or require Glorious Bethlehem
Temple to accept less than full compensation for the taking as same is in violation of
Article I, 2, 9, 21 and Article X, 6 of the Florida Constitution.
102. The facts alleged herein demonstrate that Glorious Bethlehem Temple will
suffer immediate, continuing, and irreparable injury, to which there is no adequate
remedy at law, if the FDOT is allowed to continue with its conduct toward Glorious
Bethlehem in the acquisition of its private property.
103. Further, the facts alleged herein demonstrate that FDOT is with knowledge
of the injury inflicted upon Glorious Bethlehem Temple resulting from its improper
conduct.
-
- 30 -
104. Glorious Bethlehem Temple has been obliged by the actions of FDOT to
engage attorneys to represent themselves and to incur costs in order to advance the
claims of this action.
WHEREFORE, Glorious Bethlehem Temple respectfully prays that this Court:
A. Find that the FDOTs program of acquisition, its policies, practices, and
tactics, alleged herein violate Glorious Bethlehem Temples rights under Article I, 2, 9,
and 21, and Article X, 6 of the Florida Constitution;
B. Find that FDOT has a clear legal duty and Glorious Bethlehem Temple has
a clear legal right that FDOT not engage in a program of acquisition, including its policies,
practices, and tactics, that are oppressive or require Glorious Bethlehem Temple to
accept less than full compensation for the taking as same is in violation of Article I, 2,
9, 21 and Article X, 6 of the Florida Constitution.
C. So that Glorious Bethlehem Temple will not suffer immediate, continuing,
and irreparable injury, grant mandamus and require that FDOT forthwith immediately file
eminent domain proceedings to condemn Parcels 187, 191, 193, 197 pursuant to the
Chapters 73 and 74, Florida Statutes, so that Glorious Bethlehem Temples private
property will be taken with due process of law and with payment of full compensation in
court proceedings held without sale, denial, or delay;
D. Empanel a jury to determine the full compensation along with any
compensatory damages due Glorious Bethlehem Temple for economic damages
consequent of FDOTs oppressive pre-condemnation conduct, together with interest; and
E. Award Glorious Bethlehem Temples costs and fees incurred in bringing
this action; and
-
- 31 -
F. Grant such other or further relief as this Court deems proper.
COUNT IV PROMISSORY ESTOPPEL
105. Glorious Bethlehem Temple reiterates and alleges paragraphs 1 - 65 as
though fully set forth herein.
106. This is an additional or alternative action for equitable relief based upon
Glorious Bethlehem Temples reliance on FDOTs representations and estoppel.
107. The facts and circumstances alleged in paragraphs 1 64 of the Amended
Complaint evidence an inexcusable lack of due care on the part of JTA.
108. FDOT representatives, trained and experienced with the public acquisition
process, repeatedly notified Glorious Bethlehem Temple that FDOT intended to acquire a
whole take of Glorious Bethlehem Temple and that the church would be cared for
through federal relocation assistance and the payment of full compensation. In good
faith, Glorious Bethlehem Temple relied on FDOTs representations.
109. FDOT representatives repeatedly informed Glorious Bethlehem Temples
pastor and several church members that the church would be displaced and would need
to relocate. In good faith, Glorious Bethlehem Temple relied on FDOTs representations.
110. At the urging of FDOTs representatives, Glorious Bethlehem Temple
purchased a suitable replacement church facility within the immediate area and a
reasonable distance away. Further, Glorious Bethlehem Temple expended its monies to
obtain a PUD rezoning in order to build a new church sanctuary and parking lot. Again,
in good faith, Glorious Bethlehem Temple relied on FDOTs urging.
111. As evidenced by the facts and circumstances alleged in paragraphs 1 64
of the Amended Complaint, FDOT made these representations to Glorious Bethlehem
-
- 32 -
Temple, intended for Glorious Bethlehem Temple to rely on said representations, and, as
part of negotiating tactics, filed and voluntarily dismissed eminent domain proceedings
because the church would not accept FDOTs appraisal estimate as the measure of full
compensation.
112. It is through its Voluntary Dismissal Without Prejudice that FDOT seeks to
force Glorious Bethlehem Temple to accept less than full compensation for the taking of
Parcels 187, 191, 193, and 197. In essence, FDOT is saying that it is the choice of
Glorious Bethlehem Temple to either accept less than what the church knows to be full
compensation for the taking or remain stranded on an island in the middle of what FDOT
has indicated by its construction plans will be Pond E in Basin 6.
113. This abuse of discretion is nothing less than pulling the rug out from under
Glorious Bethlehem Temple owner in order to force Glorious Bethlehem Temple to accept
less than full compensation for the taking of Parcels 187, 191, 193, 197.
114. FDOT is well aware that dismissal of its eminent domain lawsuit removes
the possibility of a jury determination of the constitutional measure of full compensation
should FDOT and Glorious Bethlehem Temple not be able to agree. Meanwhile
Glorious Bethlehem Temple faces the prospects of having already purchased substitute
property, having already paid for a PUD rezoning, and now being left behind after the
transformation of its immediate surroundings from a residential neighborhood to a FDOT
highway project and stormwater pond construction site. FDOT knows and intends for
this to crush the churchs resolve to hold fast for a constitutional measure of full
compensation.
-
- 33 -
115. Indeed, these oppressive pre-condemnation tactics leave the church in an
unduly vulnerable position, uncertain as to its property rights or its future, as FDOT
explores possibilities for design and construction of its stormwater pond without the
churchs property afforded by its design-build method of procurement of engineering
and contracting services. Although this design-build method has existed as a creature
of statute, it has been rarely used by FDOT until recently. Through this design-build
method, in accordance with the facts and circumstances of this case, FDOT is
transferring the decision-making on whether or not Parcels 187, 191, 193, and 197 are
necessary for public acquisition to a third party.
116. While FDOT has indicated that it no longer needs the churchs property for
the construction of Pond E in Basin 6, FDOT has not provided to Glorious Bethlehem
Temple any alternative right-of-way maps or construction plans to show how Pond E in
Basin 6 can be constructed without the churchs property.
117. Glorious Bethlehem Temple has suffered damages as a result of their good
faith reliance on FDOTs representations and actions toward the condemnation of Parcels
187, 191, 193, and 197.
118. So as to avoid injustice, Glorious Bethlehem Temple seeks to have this
Court require FDOT to file eminent domain proceedings to condemn Parcels 187, 191,
193, and 197 in order to restore the right of a jury determination of the constitutional
measure of full compensation should FDOT and Glorious Bethlehem Temple not be able
to agree.
-
- 34 -
119. Glorious Bethlehem Temple has been obliged by the actions of FDOT to
engage attorneys to represent themselves and to incur costs in order to advance the
claims of this action.
WHEREFORE, Glorious Bethlehem Temple respectfully prays that this Court:
A. Find that the FDOTs program of acquisition, its policies, practices, and
tactics, alleged herein violate Glorious Bethlehem Temples rights under Article I, 2, 9,
and 21, and Article X, 6 of the Florida Constitution;
B. Find that FDOT inexcusably violated a duty of due care by knowingly
making representations to Glorious Bethlehem Temple, that Glorious Bethlehem Temple,
relied on said representations in good faith, and then, as part of negotiating tactics, FDOT
filed and voluntarily dismissed eminent domain proceedings because Glorious
Bethlehem Temple would not accept FDOTs appraisal estimate as the measure of full
compensation;
C. Find that FDOTs policy and practice of condemning all other private
property surrounding Glorious Bethlehem Temple in Pond E in Basin 6 of its I-95
Overland Bridge Project, demolishing the houses on these properties, filing and
voluntarily dismissing eminent domain proceedings against Glorious Bethlehem Temple,
and continuing to delay acquisition of Parcels 187, 191, 193, 197 during its design build
method of procurement of engineering and contracting services also violates a duty of
due care and is not in good faith when negotiating constitutional full compensation;
D. Find, on principles of promissory estoppel, that FDOT cannot engage in a
program of acquisition, including its policies, practices, and tactics, that are oppressive or
-
- 35 -
require Glorious Bethlehem Temple to accept less than full compensation for the taking
as same is in violation of Article I, 2, 9, 21 and Article X, 6 of the Florida Constitution.
E. So that Glorious Bethlehem Temple will not suffer immediate, continuing,
and irreparable injury, require that FDOT forthwith immediately file eminent domain
proceedings to condemn Parcels 187, 191, 193, 197 pursuant to the Chapters 73 and 74,
Florida Statutes, so that Glorious Bethlehem Temples private property will be taken with
due process of law and with payment of full compensation in court proceedings held
without sale, denial, or delay;
F. Empanel a jury to determine the full compensation along with any
compensatory damages due Glorious Bethlehem Temple for economic damages
consequent of FDOTs oppressive pre-condemnation conduct, together with interest;
G. As alternative relief to requiring that FDOT forthwith immediately file
eminent domain proceedings, although Glorious Bethlehem Temple contends such relief
is not fully adequate, impanel a jury of six (6) persons to try the issues of liability and
damages for promissory estoppel for which Glorious Bethlehem Temple demands
judgment against FDOT for compensatory, special, and consequential damages,
together with attorneys fees, costs, interest, and such other relief the Court deems is
proper under the facts and circumstances;
H. Award Glorious Bethlehem Temples costs and fees incurred in bringing
this action; and
I. Grant such other or further relief as this Court deems proper.
-
- 36 -
COUNT V - EQUAL PROTECTION
120. Glorious Bethlehem Temple reiterates and alleges paragraphs 1 - 65 as
though fully set forth herein.
121. This is an additional or alternative action for injunctive relief to alleviate
unequal and discriminatory treatment by the FDOT toward Glorious Bethlehem Temple
pursuant to Article I, 2, 3, 9, 21, and 22 of the Florida Constitution and also the Fifth
and Fourteenth Amendments to the United States Constitution.
122. With no factual basis, FDOT arbitrarily, irrationally, intentionally,
purposefully, unjustifiably, and unlawfully has discriminated against Glorious Bethlehem
Temple in a manner unlike the treatment given other similarly situated owners whose
properties have been the subject of the I-95 Overland Bridge Project.
123. FDOT has failed to abide to a fair and equitable program of acquisition that
has been implemented in regards to other similarly situated owners, but not to Glorious
Bethlehem. Instead, the FDOT has employed its own policies and practices utilizing
condemnation blight, delay, and bait-and-switch tactics in negotiations against Glorious
Bethlehem Temple.
124. Glorious Bethlehem Temple has not been treated like other owners
similarly situated and have been denied their rights of equal protection guaranteed by
Article I, 2 (Basic Rights), 3 (Religious Freedom), 9 (Due Process), 21 (Access to
Courts), and 22 (Trial by Jury) of the Florida Constitution and also the Fifth and
Fourteenth Amendments of the United States Constitution.
125. FDOT has no compelling reason to discriminate against Glorious
Bethlehem Temple due to the race or religious affiliation or beliefs of its members; there
-
- 37 -
are least restrictive means by which FDOT can achieve the public purpose alleged for its
I-95 Overland Bridge Project without discriminating against Glorious Bethlehem Temple.
126. FDOT has no rational basis for which to discriminate against Glorious
Bethlehem Temple by treating Glorious Bethlehem Temple unequal to other similarly
situated property owners; FDOTs intention to voluntarily dismiss these eminent domain
proceedings is not reasonably related to a legitimate government purpose when the
basis for taking such action is to force Glorious Bethlehem Temple to accept either less
than constitutional full compensation in the taking of Parcels 187, 191, 193, 197 for Pond
E in Basin 6 of the I-95 Overland Bridge Project or be left as the only property owner
remaining in the midst of a highway construction project. FDOT is not forcing the issue
with any other property within the I-95 Overland Bridge Project.
127. FDOT has violated equal protection in the following manner:
a. failing to consider the environmental impacts, including the social
and cultural impacts, associated with the acquisition of Glorious
Bethlehem Temples property when studying alternative locations for
Pond E in Basin 6 of the I-95 Overland Bridge Project;
b. representing to Glorious Bethlehem Temple over an extended
period of time that acquisition by a whole take was reasonably
necessary to accomplish the public purpose associated with the I-95
Overland Bridge Project and that the entire neighborhood
surrounding the church would likewise be taken for Pond E in Basin
6 of the I-95 Overland Bridge Project;
-
- 38 -
c. representing to Glorious Bethlehem Temple over an extended
period of time that the church would be cared for through relocation
assistance and payment of full compensation and that the church
would need to relocate from its home of over 50 years because of
FDOTs intention to whole take the property;
d. proceeding with its project by acquisition and demolition of
residential properties on all sides of Glorious Bethlehem Temples
property and thereby disrupting the traditional neighborhood pattern
of use and value that have been sustained by land use and zoning
regulations which the church had enjoyed for over 50 years;
e. to segregate Glorious Bethlehem Temple from other similarly
situated property owners, leaving Glorious Bethlehem Temple in a
class of one, when both performing its EIS and Pond Siting studies
and when acquiring all other properties marked for Pond E Basin 6
except Glorious Bethlehem Temple, leaving the church to weather
the storm associated with the project construction around it and
doubt as to the future now that the neighborhood pattern has been
completely disrupted and FDOT owns all of the surrounding
property; and
f. when knowing that Glorious Bethlehem Temple had relied on its
representations by purchasing substitute property and when
representing for three years that it would whole take the property
only to threaten leaving the church stranded on an island in the
-
- 39 -
middle of its highway project, by using the potential of a voluntary
dismissal in a coercive manner in an all-out attempt to force Glorious
Bethlehem Temple to accept an amount less than full compensation
or forgo a jury trial that would otherwise establish the constitutional
measure.
128. If either party to presuit negotiations condemnor or condemnee believes
that the other party is making an unreasonable offer or has an unreasonable expectation
with regard to the measure of compensation applied to the facts and circumstances of the
matter, then the proper manner in which to proceed is to go through the process which is
due both from a procedural and substantive due process standpoint and proceed with
eminent domain proceedings pursuant to Chapters 73 & 74, Florida Statutes, so that the
judicial branch of government may perform its constitutional role and function and
balance the sovereign power asserted with the constitutional rights at stake.
129. It is because Glorious Bethlehem Temple has a legitimate disagreement
with the price and terms for acquisition set by FDOT that Glorious Bethlehem Temple is
singled-out by FDOT and that FDOT voluntarily dismissed its eminent domain
proceedings.
130. It is because the predominance of Glorious Bethlehem Temples church
members race, or its religious affiliation or beliefs, that Glorious Bethlehem Temple is
singled-out by FDOT and that FDOT voluntarily dismissed its eminent domain
proceedings.
131. This Court should not refuse to observe the tremendous disparity in
resources and in the goals and objectives between the parties to this action, or in the
-
- 40 -
parties competing dispositions to the legal principles stated herein. The issues before
this Court compose a clear question between the sovereign and the individual: the extent
to which the exercise of the eminent domain power may be limited in that it must adhere
to a process that is fundamentally fair to the individual whose private property is needed
for a public purpose for which all should equally bear the burden of expense.
132. The program of acquisition and associated unequal treatment by FDOT to
date has proximately caused Glorious Bethlehem Temple to incur economic losses which
Glorious Bethlehem Temple would not otherwise have suffered due not to the
uncertainties of whether their property will be acquired for the I-95 Overland Bridge
Project, but due to the uncertainties associated with the conduct of FDOT.
133. Glorious Bethlehem Temple has been obliged by the actions of FDOT to
engage attorneys to represent themselves and to incur costs in order to advance the
claims of this action.
WHEREFORE, Glorious Bethlehem Temple respectfully prays that this Court:
A. Find that the FDOTs program of acquisition, applied to Glorious Bethlehem
Temple, has violated the constitutionally guaranteed equal protection rights;
B. Find that FDOT is liable for all Glorious Bethlehem Temples resulting
financial losses, related thereto;
C. So that Glorious Bethlehem Temple will not suffer immediate, continuing,
and irreparable injury, require that FDOT forthwith immediately file eminent domain
proceedings to condemn Parcels 187, 191, 193, 197 pursuant to the Chapters 73 and 74,
Florida Statutes, so that Glorious Bethlehem Temples private property will be taken with
due process of law and with payment of full compensation in court proceedings held
-
- 41 -
without sale, denial, or delay;
D. Empanel a jury to determine the full compensation along with any
compensatory damages due Glorious Bethlehem Temple for economic damages
consequent of FDOTs oppressive pre-condemnation conduct, together with interest;
E. As alternative relief to requiring that FDOT forthwith immediately file
eminent domain proceedings, although Glorious Bethlehem Temple contends such relief
is not fully adequate, impanel a jury of six (6) persons to try the issues of liability and
damages for which Glorious Bethlehem Temple demands judgment against FDOT for
compensatory, special, and consequential damages, together with attorneys fees, costs,
interest, and such other relief the Court deems is proper under the facts and
circumstances;
F. Award Glorious Bethlehem Temples costs and fees incurred in bringing
this action; and
G. Grant such other or further relief as this Court deems proper.
COUNT VI - RLUIPA
134. Glorious Bethlehem Temple reiterates and alleges paragraphs 1 - 65 as
though fully set forth herein.
135. This is an additional or alternative action for injunctive relief to alleviate
unequal and discriminatory treatment by the FDOT toward Glorious Bethlehem Temple
pursuant the Religious Land Use and Institutionalized Persons Act (RLUIPA).
136. FDOT receives federal financial assistance in regards to the I-95 Overland
Bridge Project.
-
- 42 -
137. FDOT has proceeded with its project by acquisition and demolition of
residential properties on all sides of Glorious Bethlehems property and has thereby
disrupted the traditional neighborhood pattern of use and value that has been sustained
by land use and zoning regulations which the church had enjoyed for over 50 years.
138. As a direct result of FDOTs program of acquisition, demolition, and use of
property for the I-95 Overland Bridge Project, all of the properties surrounding the church
will be rezoned to accommodate public, not private, use. This constitutes a defacto
landmarking of land within FDOTs project boundaries.
139. By intention, FDOT means to take the neighborhood, but leave the church.
140. It is the change in land use pattern that FDOT is using as a means to coerce
Glorious Bethlehem Temple to accept either less than constitutional full compensation in
the taking of Parcels 187, 191, 193, 197 for Pond E in Basin 6 of the I-95 Overland Bridge
Project or be left as the only property owner remaining in the midst of a highway
construction project.
141. FDOTs decisions with regards to the land use and zoning of all surrounding
property will result in a substantial burden on the religious exercise of Glorious Bethlehem
Temple as a religious assembly without a compelling government interest that cannot
otherwise be achieved by less restrictive means.
142. Additionally, Glorious Bethlehem Temple has not been equally treated like
other owners similarly situated that are not religious assemblies.
143. Glorious Bethlehem Temple has been obliged by the actions of FDOT to
engage attorneys to represent themselves and to incur costs in order to advance the
claims of this action.
-
- 43 -
WHEREFORE, Glorious Bethlehem Temple respectfully prays that this Court:
A. Find that the FDOTs program of acquisition, demolition, and use of
property for the I-95 Overland Bridge Project has imposed a defacto landmarking that will
result in a substantial burden on the religious exercise of Glorious Bethlehem Temple as
a religious assembly without a compelling government interest that cannot otherwise be
achieved by less restrictive means;
B. Find that Glorious Bethlehem Temple has not been equally treated like
other owners similarly situated that are not religious assemblies;
C. Find that FDOT is liable for all Glorious Bethlehem Temples resulting
financial losses, related thereto;
D. So as to avoid further financial loss, require FDOT to forthwith file eminent
domain proceedings to condemn Parcels 187, 191, 193, 197 pursuant to Chapters 73 &
74, Florida Statutes, so that Glorious Bethlehem Temples private property will be taken
with due process of law and with payment of full compensation in court proceedings held
without sale, denial, or delay;
E. Empanel a jury to determine the compensatory damages due Glorious
Bethlehem Temple for said losses, together with interest;
F. Award Glorious Bethlehem Temples costs and fees incurred in bringing
this action; and
-
- 44 -
G. Grant such other or further relief as this Court deems proper, including
injunctive relief that would remove the substantial burden on religious exercise of
Glorious Bethlehem Temple.
Respectfully submitted, /s/ Andrew Prince Brigham Andrew Prince Brigham Florida Bar No. 903930 Brigham Property Rights Law Firm PLLC 2963 Dupont Avenue, Suite 3 Jacksonville, FL 32217 Phone: 904-730-9001 Fax: 904-733-7633 [email protected] [email protected] Attorneys for Defendant, Glorius Bethlehem and James T. Golden, Esq. Florida Bar No. 192303 P.O. Box 299 Bradenton FL 34206 [email protected] Attorneys for Defendant, Glorius Bethlehem
-
Glorious Bethlehems
Current Location
blaingTypewritten TextEXHIBIT "A"
-
The People of Glorious Bethlehem
---Worship Service
-
Footprint of Pond E in Basin 6
blaingTypewritten TextEXHIBIT "B"
-
Glorious Bethlehems
Future Location
blaingTypewritten TextEXHIBIT "C"
-
blaingTypewritten TextEXHIBIT "D"
-
blaingTypewritten TextEXHIBIT "E"
-
blaingTypewritten TextEXHIBIT "F"
-
7/21/2011 8:53:09 PM G:\TRA\06259 RWA I95 Overland Bridge\21330435201\drainage\DRMPRD01_PSR.DGN
ROAD NO. COUNTY
DESCRIPTIONDATE DESCRIPTIONDATE
REVISIONS
FINANCIAL PROJECT ID
STATE OF FLORIDADEPARTMENT OF TRANSPORTATION
SHEET
NO.
213304-3-52-01 DUVAL SR 9
hnguyen
1650 Prudential Drive, Suite 400Jacksonville, Florida 32207Phone (904) 721-2991 Fax (904) 861-2450
Engineer of Record: Gene Howerton, P.E.Florida Registration Number: 43992
Certificate of Authorization No.: 7917
Infrastructure, environment, buildings
NO
TIC
E: T
HE
OF
FICIA
L
RE
CO
RD
OF
THIS
SH
EE
T IS
TH
E
ELE
CT
RO
NIC FIL
E
SIG
NE
D
AN
D
SE
ALE
D
UN
DE
R
RU
LE 61G
15-23.003, F.A.C.
FIGURE 8BASIN ALTERNATES
110
120
130
140
150
160
170
180
0
Feet
100 500
DO NOT USE THE INFORMATION ON THISSHEET FOR CONSTRUCTION PURPOSES.This sheet is in the plans for documentation and toassist construction personnel with drainage concerns.
N
1"
=
500
BASIN 1 BASIN 2 BASIN 3
BASIN 1ALTERNATE 1
BASIN 1ALTERNATE 2
BASIN 1ALTERNATE 4
BASIN 2ALTERNATE 2
BASIN 2ALTERNATE 1
BASIN 1ALTERNATE 3
SA
N
MA
RC
O
BO
ULE
VA
RD
PA
LM
AVE
NU
E
KIN
GS
AVE
NU
E
(US
1)
HE
ND
RIC
KS
AVE
NU
E
(SR
13)
BEGIN PROJECTSTA. 106+18.14{ CONST. I-95
ACOSTA
EXPRESSWAY
{ CONST. SR 9
BASIN 2ALTERNATE 3
BASIN 2ALTERNATE 4
BASIN 2ALTERNATE 5
BASIN 2ALTERNATE 6
BASIN 2ALTERNATE 7
BASIN 3ALTERNATE 1
BASIN 3ALTERNATE 2
BASIN 3ALTERNATE 3
BASIN 3ALTERNATE 4
BASIN 4ALTERNATE 3
BASIN 4ALTERNATE 1
BASIN 4ALTERNATE 2
BASIN 5ALTERNATE 1
BASIN 4
BASIN 5
-
7/21/2011 8:54:51 PM G:\TRA\06259 RWA I95 Overland Bridge\21330435201\drainage\DRMPRD01_PSR.DGN
ROAD NO. COUNTY
DESCRIPTIONDATE DESCRIPTIONDATE
REVISIONS
FINANCIAL PROJECT ID
STATE OF FLORIDADEPARTMENT OF TRANSPORTATION
SHEET
NO.
213304-3-52-01 DUVAL SR 9
hnguyen
1650 Prudential Drive, Suite 400Jacksonville, Florida 32207Phone (904) 721-2991 Fax (904) 861-2450
Engineer of Record: Gene Howerton, P.E.Florida Registration Number: 43992
Certificate of Authorization No.: 7917
Infrastructure, environment, buildings
NO
TIC
E: T
HE
OF
FICIA
L
RE
CO
RD
OF
THIS
SH
EE
T IS
TH
E
ELE
CT
RO
NIC FIL
E
SIG
NE
D
AN
D
SE
ALE
D
UN
DE
R
RU
LE 61G
15-23.003, F.A.C.
FIGURE 8BASIN ALTERNATES
180
190
200210
220
230
240
0
Feet
100 500
DO NOT USE THE INFORMATION ON THISSHEET FOR CONSTRUCTION PURPOSES.This sheet is in the plans for documentation and toassist construction personnel with drainage concerns.
N
1"
= 500
BASIN 4
ATLA
NTIC
BOU
LEVA
RD
SA
N
D
IEG
O
RO
AD
PHILIPS HIGHWAY (US 1)
END CONSTRUCTIONSTA. 241+30.00{ CONST. I-95
{ CONST. SR 9
BASIN 5
BASIN 6 BASIN 7
BASIN 5ALTERNATE 1
BASIN 5ALTERNATE 2
BASIN 4ALTERNATE 3
BASIN 4ALTERNATE 4
BASIN 4ALTERNATE 5
BASIN 5ALTERNATE 3
BASIN 6ALTERNATE 1
BASIN 6ALTERNATE 2
BASIN 7ALTERNATE 2
BASIN 7ALTERNATE 1
-
1Andrew Brigham
From: Doud, Clinton Sent: Monday, March 18, 2013 11:44 AMTo: Andrew BrighamCc: Henderson, Marcia; Teal, CraigSubject: Extended Possession - parcels 187, 191, 193 & 197
Andy,Pursuanttoourtelephoneconversation,Ihaveinquiredaboutextendedpossessionforthese4parcels.TheDepartmentwillneedpossessionoftheparcelson2separatedates.ForParcels191and193(vacantlandusedforparking),theDepartmentwillneedthepropertybyMay17,2013,sincetheDepartmenthasacontractualobligationtoturnoverthepropertytothedesignbuildfirmbyJune1,2013.ThisturnoverdateprovidesminimaltimefortheDepartmentneedstoinspectandremoveanyunexpectedpropertyfromtheparcels.ForParcels187and197(includesthechurch),theDepartmentcangrantextendedpossessionuntilAugust15,2013.But,toextenduntilthisdate,theDepartmentwillneedaccesstothepropertycommencingJuly15toallowittoconductasbestostesting.Also,sinceasbestostestingrequirescuttingintotheroof,theremayberoofleaksfromthedateoftestinguntilthechurchvacatesthepremises.Thus,theDepartmenthighlyrecommendsterminatingpossessionbyJuly15.Finally,thereare2additionalmatters.First,regardlessofthedateofpossession,theDepartmentwillsendoutits30dayrelocationnoticeduringthelast30daysofoccupancy.Second,sincetheseparcels191and193wouldnolongerbeavailableforparking,thechurchwillneedtofindalternativeparkingforitsmembersafterMay17.Clinton L. Doud Special Counsel, Eminent Domain Florida Department of Transportation Office of the General Counsel 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Phone (850)414-5367 Fax (850) 414-5264 This message is intended for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient, please notify the sender, delete this message, and do not use, disseminate, or copy its contents. Thank you. TheOGCwouldappreciateFDOTemployeescompletingourQualityAssuranceLegalServicesSurveybyclickinghere.Thankyou.
blaingTypewritten TextEXHIBIT "G"