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UNIVERSITY OF FLORIDA FREDRIC G.

LEVIN COLLEGE OF LAW • SPRING 2015

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

TAKINGS
on trial

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
BY R I C H A R D G O L D ST E I N

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T

he city was in the midst of acquiring land for what it
considered the “final jewel in the crown” in Orlando’s
Parramore neighborhood when the project ground to a halt.
One of the landowners wouldn’t sell, at least at a price the
city considered reasonable. It’s 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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A mockup of the Orlando
Lions Soccer Stadium
planned for the Parramore
Neighborhood downtown

But this case had a few twists. One was take land from one private party and grant construction of a Major League Soccer stathe target of the taking – a small nondenom- its benefits to another. Did the sports sta- dium for the Orlando Lions, the first team in
inational African-American church called dium represent a “public use” at all after the Southeast, is planned for the heart of the
Faith Deliverance Temple. Relocated to Florida tightened its laws on government city. By 2013, the soccer team had agreed to
the deal for a new stadium in which it would
Parramore in 1983, it’s a family-owned and takings in 2006?
license from the city a newrun church with about 100
ly built soccer stadium.
members. Another twist
Orlando City Attorney
was the project the city was
Mayanne Downs (JD 87)
acquiring the land for: A
explained Orlando’s down$115 million, 19,500-pertown development strategy.
son soccer stadium to be
She contrasted what
used by Orlando City Soc—ORLANDO CITY ATTORNEY MAYANNE DOWNS (JD 87)
used to be small-town Orcer Club. Prickly sensitivilando to the one that now inties were awoken – of race,
class and privilege. A national media story
On Aug. 4, 2014, discovery was due cludes major downtown amenities and, soon,
compared the church to “David” while the from the city in the eminent domain case. will include a professional soccer stadium.
city and sports team were likened to “Go- At that moment the battle would be well and Downs said Dyer’s object is “building a place
that attracts people as opposed to ejects them
liath.”
truly joined.
Orlando Mayor Buddy Dyer’s (JD 87) because there’s nothing to do.”
And third was the fact that an eminent
And she said eminent domain is a key
domain case would enter unchartered legal administration has brought a series of big
territory in the wake of the U.S. Supreme projects to downtown Orlando. The Amway tool to accomplish these goals.
At the same time, Downs was frank about
Court’s decision in Kelo v. New London. Center, a stadium for professional basketball
Changes to the state’s eminent domain laws and concerts opened in 2010. An enormous the administration’s sensitivity to crossing a
after the 2005 decision raised questions venue, the Dr. Phillips Center for the Per- constituency whom Dyer wants to assist.
“The Parramore neighborhood was a
about whether the city had the authority to forming Arts, opened last year. And now

“We spent a lot of time and
resources. We worked hard to make
sure we did the right thing.”

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neighborhood that fell into blight arguably preme Court case establishing that payment of a well-kept, if aging New London, Conbecause of the bad actions of governments of an owner’s attorneys’ fees and costs are necticut, neighborhood from homeowners
long ago. It was a segregated neighborhood part of Florida’s constitutional guarantee of to the control of a land developer for new
long ago. We agonized over the right thing full compensation. Brigham’s father, Toby retail, sports club and other amenities asto do for the entire community,” Downs Brigham (JD 59), delivered a guest lecture in sociated with a planned pharmaceutical
said. “We spent a lot of time and resources. UF Law Professor Alyson Flournoy’s prop- development.
I got outside lawyers, which I don’t do very erty law class during Andrew’s 1L year.
Takings can only move forward for
often because our legal team is so great. We
Since graduating, Andrew Brigham a “public purpose.” The public purpose
worked hard to make sure we did the right has built a property rights law practice, claimed by New London was increasing ecothing.”
The Brigham Property Rights Law Firm nomic value of the land and thereby increasDowns is a past Florida Bar president in Jacksonville that devotes its practice to ing tax revenue to the city. The homeowners,
and a power broker in Orlando known for representing property owners in eminent with Suzanne Kelo’s pink house serving as
her sharp wit. She also reExhibit No. 1, objected to
covered from a near-fatal
the plan.
blood bacterial infection
In an opinion auin 2007 (famously awaking
thored by Justice John
after several days in a coma
Paul Stevens, the Supreme
to ask if the Gators had
Court ruled 5-4 that the
won the NCAA basketball
Constitution permitted
tournament). In addition
New London to take the
—U.S. SUPREME COURT JUSTICE JOHN PAUL STEVENS
to serving as city attorney
property and transfer its
she is a shareholder with
benefits to the land deGrayRobinson and chair of its litigation de- domain or other property rights cases. In veloper. The homes were demolished, the
partment.
2008, Brigham obtained the largest eminent neighborhood destroyed, but the developer
In dealings with the church, a litigation domain jury verdict in Florida state court abandoned the project. It stands today as a
clock was ticking in Downs’s head. And it proceedings representing Keystone Coal barren refuge for a colony of feral cats.
was counting down against promises to pro- Company. The Jacksonville Port Authority,
Even before the cats moved in, the Kelo
vide a soccer stadium to the Orlando Lions JAXPORT, presented testimony at trial that decision was, to say the least, a controversial
Major League Soccer team. The team had full compensation should be only $14 mil- outcome, as Stevens himself observed durintended to move in for the start of the 2015 lion. The jury awarded $67 million.
ing a 2013 visit to UF Law.
season, but this year is playing games in the
As sale negotiations to acquire land for
“I read over and over again that (Kelo)
Orlando Citrus Bowl.
the new soccer stadium were breaking down is the most unpopular opinion the Supreme
“Having spent months and months and and the city filed an eminent domain case, Court has rendered in decades, and I am
months making offers into a vacuum we Faith Deliverance Temple needed an attor- the villain in the case,” Stevens said, speaknever believed that we would have to take ney. Brigham was a natural choice.
ing in the UF Law Marcia Whitney Schott
(the church’s) property, but because they
Brigham jumped into a familiar type of Courtyard. “But I happen to think it was the
told us they wanted to sell us their property case, but a legal landscape altered since the correct decision, and it was a matter of ecowe had relied on that and assembled other last time Orlando had condemned proper- nomic legislation that generally the states
property,” Downs said. “We were facing de- ty for a sports stadium. The difference was are given broad leeway in.”
mands for $37 million for a property we ap- Kelo v. New London and the political backMichael Allan Wolf, whose Powell on
praised at $500,000. We can’t look at taxpay- lash it spawned. Kelo was a 2005 decision Real Property treatise contains a 20-page
ers and say we’re going to move all this tax by the U.S. Supreme allowing the transfer footnote detailing reactions to Kelo, has
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 church’s eminent domain counsel said the church reduced drastically its initial $37 million demand, which
was premised upon the city’s settlement
with another downtown church acquired as
part of the Dr. Phillips Center.
The church’s counsel was Andrew
Prince Brigham (JD 91).
A third generation Florida property
law attorney, Brigham’s grandfather, E.F.P.
Downs
Downs
Brigham
Dyer
Brigham, was party to the 1950 Florida Su-

“I read over and over again that (Kelo)
is the most unpopular opinion the
Supreme Court has rendered in decades.”

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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 Decision” and a heart dripping in the other as
he strides away from a torn Constitution.
“Grasping the heart out of the Constitution,” Wolf said during the Richard
E. Nelson Symposium, a Feb. 2 UF Law
conference devoted to the repercussions
of Kelo a decade later.
“It’s subtle. I hope everyone understands the message,” Wolf deadpanned.
The reaction of the states was no more
subtle.
Nearly all of them made it more difficult 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, according to a report presented at
the symposium by Bradley
Tennant (2L) and Amanda
Hudson (2L). Forty of the
states made changes within two years of the decision with only New York,
Massachusetts, Oklahoma, Arkansas and
Hawaii leaving takings law unaltered after
Kelo, Tennant said.

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

Florida’s changes were among the most
far reaching. Soon after the opinion, Florida House Speaker Allan Bense appointed
the bipartisan Select Committee to Protect

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 naming rights, parking and ticket sales will go
to the private team owner.
Payne noted that the Legislature didn’t
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 public use in eminent domain. So Payne said
the only question was that of control. Did
the city retain it under the licensing agreement?
“We have control of that facility. We
have the right to tell the team things that
they didn’t want to give us the right to
do,” Payne said. “But they had to do that
because that’s what needed to happen to
make this project happen.”
But questions remained. Does the agreement do what the city
purports, and are sports
stadium really still a public purpose post-Kelo?
“It’s not a public purpose simply because the
city of Orlando calls it a public purpose,”
Brigham said. “Essentially, much of our efforts in discovery were to show that the city
of Orlando’s ‘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
who’s 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 Holdings, this seems to us to be the best evidence 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
public’s 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 control” by the sports team owners then, by the
terms of the 2006 constitutional amendment, such a transfer would require an act

“Grasping the heart out of the
Constitution. It’s subtle. I hope
everyone understands the message.”

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

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—UF LAW PROFESSOR MICHAEL ALLAN WOLF

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 Cannon (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 domain 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.

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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 amendment. “If you go to the legislative staff
analysis, it was defined as traditional infrastructure as roads, water, sewer.”
“The 2006 property rights reforms
were all about rejecting Kelo’s premise that
eminent domain could be used for economic development as a public purpose,”
Brigham added.
Faith Deliverance Temple and the city
of Orlando looked like they were on a collision course as both sides prepared to lay
out their legal arguments before the 9th
Circuit trial court in Orange County.
Orlando’s legal staff did feel they recognized the new legal environment. But they
also recognized that an eminent domain
case would generate an almost certain appeal 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 mayor this could take two to three years, and
time was something we didn’t have an
abundance of,” Downs said. “My recommendation 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
doesn’t get started till 2018 or later.”
So on Aug. 4, the day discovery on the
City’s 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 domain case on behalf of the city.
The city would move the location of the
stadium a block west and the church property was no longer needed. The move cost
the city millions more, though it also received additional parcels of land in the deal.
Brigham quipped that “faith not only
moves mountains, but sports stadiums, too.”
With dismissal of the suit, construction 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.

In defense of Kelo v. New London

“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. 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

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.

Editor’s note: As UF LAW Magazine 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 privately financed and the stadium will be
privately owned and operated. The
stadium is expected to be completed in
summer 2016.

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