MARRIAGE AT A CROSSROADS | TAKINGS ON TRIAL | A NEW DEAN FOR UF LAW

U N I V E R S I T Y O F F L O R I D A F R E D R I C G . L E V I N C O L L E G E O F L A W S P R I N G 2 0 1 5

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The fate of a soccer stadium and an African-American church hang in the balance as Gator lawyers battle over eminent domain and public purpose in Florida

B Y R I C H A R D G O L D S T E I N

TAKINGSon trial

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The city was in the midst of acquiring land for what it

considered the final jewel in the crown in Orlandos

Parramore neighborhood when the project ground to a halt.

One of the landowners wouldnt sell, at least at a price the

city considered reasonable. Its not an unusual situation, and

most public works land acquisition cases can be wrapped up relatively

quickly. The city asks a court for authority to take the land for public use

in return for just and full compensation under the Fifth Amendment to

the U.S. Constitution and Article X, Section 6 of the Florida Constitution.

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But this case had a few twists. One was the target of the taking a small nondenom-inational African-American church called Faith Deliverance Temple. Relocated to Parramore in 1983, its a family-owned and run church with about 100 members. Another twist was the project the city was acquiring the land for: A $115 million, 19,500-per-son soccer stadium to be used by Orlando City Soc-cer Club. Prickly sensitivi-ties were awoken of race, class and privilege. A national media story compared the church to David while the city and sports team were likened to Go-liath.

And third was the fact that an eminent domain case would enter unchartered legal territory in the wake of the U.S. Supreme Courts decision in Kelo v. New London. Changes to the states eminent domain laws after the 2005 decision raised questions about whether the city had the authority to

take land from one private party and grant its benefits to another. Did the sports sta-dium represent a public use at all after Florida tightened its laws on government takings in 2006?

On Aug. 4, 2014, discovery was due from the city in the eminent domain case. At that moment the battle would be well and truly joined.

Orlando Mayor Buddy Dyers (JD 87) administration has brought a series of big projects to downtown Orlando. The Amway Center, a stadium for professional basketball and concerts opened in 2010. An enormous venue, the Dr. Phillips Center for the Per-forming Arts, opened last year. And now

construction of a Major League Soccer sta-dium for the Orlando Lions, the first team in the Southeast, is planned for the heart of the city. By 2013, the soccer team had agreed to the deal for a new stadium in which it would

license from the city a new-ly built soccer stadium.

Orlando City Attorney Mayanne Downs (JD 87) explained Orlandos down-town development strategy.

She contrasted what used to be small-town Or-lando to the one that now in-

cludes major downtown amenities and, soon, will include a professional soccer stadium. Downs said Dyers object is building a place that attracts people as opposed to ejects them because theres nothing to do.

And she said eminent domain is a key tool to accomplish these goals.

At the same time, Downs was frank about the administrations sensitivity to crossing a constituency whom Dyer wants to assist.

The Parramore neighborhood was a

We spent a lot of time and resources. We worked hard to make

sure we did the right thing.ORLANDO CITY ATTORNEY MAYANNE DOWNS (JD 87)

A mockup of the Orlando

Lions Soccer Stadium

planned for the Parramore

Neighborhood downtown

neighborhood that fell into blight arguably because of the bad actions of governments long ago. It was a segregated neighborhood long ago. We agonized over the right thing to do for the entire community, Downs said. We spent a lot of time and resources. I got outside lawyers, which I dont do very often because our legal team is so great. We worked hard to make sure we did the right thing.

Downs is a past Florida Bar president and a power broker in Orlando known for her sharp wit. She also re-covered from a near-fatal blood bacterial infection in 2007 (famously awaking after several days in a coma to ask if the Gators had won the NCAA basketball tournament). In addition to serving as city attorney she is a shareholder with GrayRobinson and chair of its litigation de-partment.

In dealings with the church, a litigation clock was ticking in Downss head. And it was counting down against promises to pro-vide a soccer stadium to the Orlando Lions Major League Soccer team. The team had intended to move in for the start of the 2015 season, but this year is playing games in the Orlando Citrus Bowl.

Having spent months and months and months making offers into a vacuum we never believed that we would have to take (the churchs) property, but because they told us they wanted to sell us their property we had relied on that and assembled other property, Downs said. We were facing de-mands for $37 million for a property we ap-praised at $500,000. We cant look at taxpay-ers and say were going to move all this tax money into a private landowner.

Downs said the city offered $4 million for the church property before filing the eminent domain case. Without stating a specific amount, the churchs eminent do-main counsel said the church reduced dras-tically its initial $37 million demand, which was premised upon the citys settlement with another downtown church acquired as part of the Dr. Phillips Center.

The churchs counsel was Andrew Prince Brigham (JD 91).

A third generation Florida property law attorney, Brighams grandfather, E.F.P. Brigham, was party to the 1950 Florida Su-

preme Court case establishing that payment of an owners attorneys fees and costs are part of Floridas constitutional guarantee of full compensation. Brighams father, Toby Brigham (JD 59), delivered a guest lecture in UF Law Professor Alyson Flournoys prop-erty law class during Andrews 1L year.

Since graduating, Andrew Brigham has built a property rights law practice, The Brigham Property Rights Law Firm in Jacksonville that devotes its practice to representing property owners in eminent

domain or other property rights cases. In 2008, Brigham obtained the largest eminent domain jury verdict in Florida state court proceedings representing Keystone Coal Company. The Jacksonville Port Authority, JAXPORT, presented testimony at trial that full compensation should be only $14 mil-lion. The jury awarded $67 million.

As sale negotiations to acquire land for the new soccer stadium were breaking down and the city filed an eminent domain case, Faith Deliverance Temple needed an attor-ney. Brigham was a natural choice.

Brigham jumped into a familiar type of case, but a legal landscape altered since the last time Orlando had condemned proper-ty for a sports stadium. The difference was Kelo v. New London and the political back-lash it spawned. Kelo was a 2005 decision by the U.S. Supreme allowing the transfer

of a well-kept, if aging New London, Con-necticut, neighborhood from homeowners to the control of a land developer for new retail, sports club and other amenities as-sociated with a planned pharmaceutical development.

Takings can only move forward for a public purpose. The public purpose claimed by New London was increasing eco-nomic value of the land and thereby increas-ing tax revenue to the city. The homeowners, with Suzanne Kelos pink house serving as

Exhibit No. 1, objected to the plan.

In an opinion au-thored by Justice John Paul Stevens, the Supreme Court ruled 5-4 that the Constitution permitted New London to take the property and transfer its benefits to the land de-

veloper. The homes were demolished, the neighborhood destroyed, but the developer abandoned the project. It stands today as a barren refuge for a colony of feral cats.

Even before the cats moved in, the Kelo decision was, to say the least, a controversial outcome, as Stevens himself observed dur-ing a 2013 visit to UF Law.

I read over and over again that (Kelo) is the most unpopular opinion the Supreme Court has rendered in decades, and I am the villain in the case, Stevens said, speak-ing in the UF Law Marcia Whitney Schott Courtyard. But I happen to think it was the correct decision, and it was a matter of eco-nomic legislation that generally the states are given broad leeway in.

Michael Allan Wolf, whose Powell on Real Property treatise contains a 20-page footnote detailing reactions to Kelo, has

I read over and over again that (Kelo) is the most unpopular opinion the

Supreme Court has rendered in decades.U.S. SUPREME COURT JUSTICE JOHN PAUL STEVENS

Downs BrighamDownsDownsDyer

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collected editorial cartoons published in the aftermath of the decision. One shows a Supreme Court justice with a cleaver in one-hand labeled Eminent Domain De-cision and a heart dripping in the other as he strides away from a torn Constitution.

Grasping the heart out of the Con-stitution, Wolf said during the Richard E. Nelson Symposium, a Feb. 2 UF Law conference devoted to the repercussions of Kelo a decade later.

Its subtle. I hope everyone under-stands the message, Wolf deadpanned.

The reaction of the states was no more subtle.

Nearly all of them made it more dif-ficult for government to transfer private property to other private owners. By 2013, all but five states had made legislative or constitutional changes or both to eminent domain law in response to the Kelo decision, accord-ing to a report presented at the symposium by Bradley Tennant (2L) and Amanda Hudson (2L). Forty of the states made changes with-in two years of the deci-sion with only New York, Massachusetts, Oklahoma, Arkansas and Hawaii leaving takings law unaltered after Kelo, Tennant said.

Floridas changes were among the most far reaching. Soon after the opinion, Flor-ida House Speaker Allan Bense appointed the bipartisan Select Committee to Protect

Private Property Rights. The committee was chaired by up-and-coming state Rep. Marco Rubio (today a U.S. senator and presidential candidate), and it included future Florida House Speaker Dean Can-non (JD 92). A news release from Bense issued in July 2005 fretted that the right to provide property was placed in jeopardy by the Kelo decision. The committee produced legislation signed into law by then-Gov. Jeb Bush (another presidential aspirant) and a constitutional amendment that would be approved by 69 percent of voters.

State law now declared that it was no longer valid for purposes of eminent do-main proceedings to transfer control of private property to another private entity.

With these new parameters it fell to chief assistant city attorney Roy K. Payne (JD 88) to oversee acquisition of the land for building the stadium and to make sure the agreement that the city made with the sports team allowed the city to exercise eminent domain.

Payne explained to the audience at the UF Law Kelo conference how city attorneys were careful to conform to current law.

Payne said the new soccer stadium will be licensed to the owners of the Orlando Lions instead of leased to developers, as in Kelo. Meanwhile, revenue including nam-ing rights, parking and ticket sales will go to the private team owner.

Payne noted that the Legislature didnt rule out economic development as a public use. And he noted that a Florida Supreme Court bond validation case had declared that stadiums constitute a legitimate pub-lic use in eminent domain. So Payne said the only question was that of control. Did the city retain it under the licensing agree-ment?

We have control of that facility. We have the right to tell the team things that they didnt want to give us the right to do, Payne said. But they had to do that because thats what needed to happen to

make this project happen.But questions re-

mained. Does the agree-ment do what the city purports, and are sports stadium really still a pub-lic purpose post-Kelo?

Its not a public pur-pose simply because the

city of Orlando calls it a public purpose, Brigham said. Essentially, much of our ef-forts in discovery were to show that the city of Orlandos Stadium Use Agreement with the Orlando Sports Holdings was a lease, only referenced by the city as something else.

In other words, if you want to know whos in control then follow the money.

If both the money for development costs are being paid by the private entity, Orlando Sports Holdings, and the money expected in revenues are being received by the private entity, Orlando Sports Hold-ings, this seems to us to be the best evi-dence of whether it is the private or public entity that has ownership and control of the proposed MLS stadium, Brigham said. It is the tail that is wagging the dog. The publics use of the stadium is incidental when compared to the predominant use of the proposed stadium by Orlando Sports Holdings.

If it did represent ownership and con-trol by the sports team owners then, by the terms of the 2006 constitutional amend-ment, such a transfer would require an act

Grasping the heart out of the Constitution. Its subtle. I hope

everyone understands the message.UF LAW PROFESSOR MICHAEL ALLAN WOLF

Chief Assistant Orlando City Attorney Roy K. Payne (JD 88) speaks during UF Laws Nelson Symposium.

UF Law Professor Michael Allan Wolf talks about the backlash from Kelo v. New London during the Nelson Symposium.

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of two-thirds of the Legislature to clear the way for taking the church. Brigham added the city would also necessarily have to show that eminent domain could be used in this context to build a sports stadium.

Brigham points to the implementing legislation for the constitutional amend-ment. If you go to the legislative staff analysis, it was defined as traditional in-frastructure as roads, water, sewer.

The 2006 property rights reforms were all about rejecting Kelos premise that eminent domain could be used for eco-nomic development as a public purpose, Brigham added.

Faith Deliverance Temple and the city of Orlando looked like they were on a col-lision course as both sides prepared to lay out their legal arguments before the 9th Circuit trial court in Orange County.

Orlandos legal staff did feel they recog-nized the new legal environment. But they also recognized that an eminent domain case would generate an almost certain ap-peal if the city won at the trial court. Downs expressed confidence in the outcome, while Brigham remained equally confident in the opposite result. For Downs, the ticking clock of litigation would finally determine her policy recommendation.

While I was positive we would win that case in the end, I had to tell the may-or this could take two to three years, and time was something we didnt have an abundance of, Downs said. My recom-mendation to him was, we will win the case, but the landowners will get an appeal to the 5th (District Court of Appeal) and it could go to the Supreme Court. Soccer doesnt get started till 2018 or later.

So on Aug. 4, the day discovery on the Citys Stadium Use Agreement was due by the City of Orlando and Orlando Sports Holdings in the circuit court, Payne filed a voluntary dismissal of the eminent do-main case on behalf of the city.

The city would move the location of the stadium a block west and the church prop-erty was no longer needed. The move cost the city millions more, though it also re-ceived additional parcels of land in the deal.

Brigham quipped that faith not only moves mountains, but sports stadiums, too.

With dismissal of the suit, construc-tion has moved forward on the stadium. It will require a future case for a Florida

Justice John Paul Stevens addressed the Kelo decision at UF Law in 2013.

Iread over and over again that (Kelo) is the most unpopular opinion the Supreme Court has rendered in decades and I am the villain in the case. But I happen to think it was the correct decision and it was a matter of economic legislation that generally the states are given broad leeway in. And I really think that we got it dead right in the case.

And of course some states have responded by making takings for economic redevelopment more difficult, which is fine, nothing wrong with that. But I do think that as a matter of federal constitutional law that the Kelo case was correctly decided.

Maybe the extent of the reaction to Kelo was more than I expected, partly because it was generated there are groups out there who feel very strongly that property rights should get more protection. But the fact that there was a very hostile public reaction was not a surprise to me at all.

Retired Justice John Paul Stevens, speaking at UF Law, Feb. 5, 2013

In defense of Kelo v. New London

court of appeal to rule on whether a sports stadium is considered a public use for eminent domain purposes.

After all the negotiations, the legal and the political arguments Downs is sanguine about the outcome.

They have their church and we have a better site than we had to begin with, and it will cost us more money and we can live with that, she said.

Editors note: As UF LAW Maga-zine went to press, the Orlando City Soccer Club owner announced that the Orlando city government would not foot the bill for a new soccer stadium after all. Construction would be pri-vately financed and the stadium will be privately owned and operated. The stadium is expected to be completed in summer 2016.

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