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HomeMy WebLinkAboutexhibitBExhibit "B" CITY OF MIAMI, a Florida municipal corporation, Petitioner, v. NEW BETHANY BAPTIST MISSION, INC., a Florida not for profit corporation, and MIAMI-DADE COUNTY, et al., Respondents. 1 IN THE CIRCUIT COURT OF TFIIE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 04-24598 CA 02 PARCEL: 92 ORDER OF TAKING THIS MATTER came before the Court on January 20, 2005 and January 28, 2005 upon petition of the CITY OF MIAMI ("City" or "Petitioner") for entry of an order of taking to acquire by eminent domain property held in the name ofNEW BETHANY BAPTIST MISSION, INC. ("Church" or "Respondent"). Having reviewed the pleadings, heard sworn testimony of witnesses, examined documents admitted into evidence, and considered argument of counsel, the Court makes the following findings of facts and conclusions of law: INTRODUCTION Following a full hearing on the City's Proposed Taking of "Parcel 92", the Court made inquiry of the attorneys and the Assistant City Manager. When asked by the Court as to what would happen should the Court permit a period of time (no specific period was indicated — eg. one (I) week, one (1) month, six (6) months, or some longer period) before the church had to vacate the premises, the Assistant City Manager indicated that such delay might terminate the entire park project. That's like a little boy saying "I want to play quarterback and call all the plays or l'm taking my football and going home!" Obviously there was no attempt at cooperation by the city manager's office -- an attitude that is very lamentable in view of the fact that the people of Little Haiti have long awaited and are certainly entitled to a neighborhood park and at the same time, the Respondent church serves a laudable function in Little Haiti as well as in other foreign countries. The right approach should have been "How can we accomplish this with the most. benefit and least harm to both the city and the church?" The ideal result for the park would be to have the church vacate the property. This would provide all the land needed for the park with a design that is clearly acceptable to the city. In a perfect world, the church would vacate immediately to another location which it found to be acceptable. Unfortunately, this is not a perfect world — the church has not found a suitable location in almost two (2) years and estimates it could take an additional two (2) years to relocate and rebuild. The Court would like to have seen the parties effect a resolution that would accomodate some relocation, recognizing that an outside date of two (2) years might be excessive. However, the city, instead of trying to work with the church, actually tried to minimize the moving date to virtually "immediately", thus demanding the Court to make a decision to either order an immediate taking or to deny the city's request for taking. This Court need not be bound to such extremes - as set forth below. FINDINGS OF FACT 1. The property at issue is an approximately 32,500 square -foot parcel improved with a church building of approximately 12,600 square feet ("Church property" or "subject parcel"). The Church property is located on N.E. 2"d Avenue in the heart of the Little Haiti community within the municipal boundaries of the City. It is immediately adjacent to an 2 assemblage of approximately 10 acres that the City proposes to develop as the "recreational component" of the Little Haiti park project. 2. The City is divided into 13 communities, or "NET" areas, to create geographic boundaries used by the City's community development department to recommend equitable allocation of public funds and services. The Little Haiti community is located in the north• central section of the City, Its boundaries are N.E. 87th Street / N.W. 79'11 Street to the north, the F.E.C. railroad right-of-way to the east, 1-195 to the south, and I-95 to the west. The Little Haiti community historically has been an economically depressed area whose residents earn considerably less than the median income level of the City as a whole. 3. Due to their longstanding concerns over the need for additional recreational opportunities and community services within the Little Haiti community, elected officials, community leaders, civic activists, and residents provided the impetus for the City to analyze whether the Little Haiti community has sufficient parks and open space to adequately serve its residents. 4, The City conducted a comprehensive study, which included the Parks Open Space Evaluation for Little Haiti and the Little Haiti Park Land Assessment, to determine whether there is a deficiency of parks and open space within the Little Haiti community. The study (which was updated in 2003 and moved into evidence as Petitioner's Exhibit 10) demonstrated a substantial deficiency of parks and open space based upon the Little Haiti community's current and projected population. Although census data indicates that the population of the Little Haiti community decreased from 1990 to 2000, City planners predict an increase in population due to infill development of single and multi -family housing. 5. When considered as a whole, the City arguably provides sufficient parks and open space for its population. However, much of its large parks and open space is located along the eastern edge of the City and is not conveniently accessible to residents from its middle and 3 western areas, Furthermore, some of the City's open space is comprised of conservation areas that cannot be used for. recreation. Compared to other major cities across the county, the City ranks low in parks and open space acreage per capita. 6, Momingside Park is located close to, but outside of, the Little Haiti community. Many residents of the Little Haiti community perceive Momingside Park as a private park due to neighborhood guard gates and traffic barriers that block access to it. Physical barriers, such as Biscayne Boulevard and the F.E.C. railroad tracks, further impede access. 7. As a result of substantial input from the Little Haiti community and the City's park land assessment studies, the City Commission adopted Resolution no. 98-923 (moved into evidence as Petitioner's Exhibit 1) finding a severe recreational deficiency in the Little Haiti community, determining the need for the City to develop an "outstanding park facility of at least 8 L. acres", and providing a funding source. 8. Resolution no. 01-604 (moved into evidence as Petitioner's Exhibit 2) established a working group to "develop a comprehensive plan addressing location, financing, operation, management, and uses for a first class park complex to be located in Little Haiti." Approximately 50 federal, state, and local elected officials, City staff, and community and civic; leaders comprised the working group. After substantial public discussion through town hall meetings, design workshops, and community outreach, the working group recommended boundaries for a proposed "first class park." The City Commission adopted Resolution no. 01 •• 1029 (moved into evidence as Petitioner's Exhibit'3) directing the City Manager to "take all steps necessary to initiate and implement the development of a first-class" park in the Little Haiti area from Northeast 59th to Northeast 67t Streets, between Northeast 2nd Avenue and the railroad tracks" ("park district"). The park district was designated in the City's comprehensive plan as an area to accommodate recreation and open space needs within the Little Haiti community. The working group's "recreation components committee" recommended recreational priorities, such 4 • as a soccer field with bleacher seating, a playground, and a recreational building, as part of a park with a minimum area of 18 acres. 9. The City Commission adopted Resolution no. 02-395 (moved into evidence as Petitioner's Exhibit 4), directing the City Manager "to expedite the land acquisition process for projects approved in the $255 million Homeland Defense / Neighborhood Improvement bond issue," the largest of which is the Little Haiti park project. One of the primary duties of Keith Carswell, the City's former Director of the Department of Economic Development who began working for the City in 2002, was to formulate an acquisition strategy and to quickly move forward with land acquisition for the Little Haiti park project. 10. Immediate acquisition of all property within the park district was not financially feasible or practical due to its size (initially 60 acres). The City Commission adopted Resolution no. 03-597 (moved into evidence as Petitioner's Exhibit 5), which reduced the size of the park district to approximately 45 acres, to minimize job loss and avoid acquisition of homestead exempted property. 11. The City's acquisition strategy for developing the park project was to assemble sufficient property for both a "recreational component" and a "cultural component." For the planned recreational component, acquisition of either of'two large trailer parks would serve as the "critical mass" for accumulation of sufficient acreage. The larger trailer park (parcels 93 and 94) was acquired by the City through negotiated conveyance. Recently, parcel 101. was also acquired. 12. The property assembled for the planned recreational component, parcels 91, 93, 94, and 101, have poor access to streets other than N.E. 2"d Avenue. The western, northern, and eastern periphery of the assemblage is mostly landlocked. Public rights -of -way (other than N.E, 2"d Avenue) which are adjacent to the assemblage are either one-way, partially blocked to traffic, 5 or meander through industrial buildings. The best location for vehicular and pedestrian traffic to and from the area of the planned recreational component is along N.E. 2nd Avenue. 13. The Church property is located between the planned recreational component and N.E. 2nd Avenue and blocks about one-half of the frontage along N.E. 2nd Avenue. City staff and consultants carefully and thoroughly analyzed how to design the planned recreational component around the Church property. Numerous conceptual designs that included and excluded the Church property were drafted. 14. N.E. 2nd Avenue, which is well -traveled by two-way vehicular and pedestrian traffic, is the most significant corridor in the vicinity of the park district because it links the planned recreational component with the planned cultural component. Miami -Dade County and the City have plans to upgrade and beautify the particular segment of N.E. 2nd Avenue that is adjacent to the park district. No other corridor provides adequate ingress and egress fur vehicular and pedestrian traffic to the planned recreational component. Mr. Carswell testified that in order to properly orient the planned recreational component along N.E. 2nd Avenue and to maximize physical and visual access, acquisition of the Church property is essential. However, architect Bernard Zysovich admitted that his own plan includes landscaped fencing that blocks the very lines of sight from the street asserted for "visual access." Additionally, Mr. Zyscovich's "landscaped fence" plan has vehicular and pedestrian access that is similar to the original October 2003 plan that did not require the acquisition of the Church. Both plans provide frontage along and access for N. E. 2nd Avenue. The visual access was explained to be necessary for security and safety reasons — and certainly makes perfect sense. (What doesn't make sense is why the Zyscovitch firm would then draft a design which has beautiful trees and shrubbery totally blocking the sight paths which provide the security.) 15. The City retained Zyscovich, Inc. as the master planner for the entire Little Haiti pack project. Zyscovich, Inc. specializes' in architecture, master planning, and urban design en 6 behalf of public and private sector clients. It currently represents several municipalities and has substantial experience' designing public facilities, including parks. Its president, Bernard Zyscovich, testified to the significance of and need for the Church property for the proper orientation of the planned recreational component. However, it is noted that he was asked to prepare a proposal that would rep sums the taking of the Church property. No alternate proposal. was requested by the City. 16. Mr. Zyscovich explained that without acquisition of the Church property, physical and visual access to the planned recreational component would be limited due to its poor connection to N.E. 2nd Avenue. The Church property prevents connection through a central access point and limits connection to perimeter access points. Mr. Zyscovich testified that not only would access be impeded, but security of the planned recreational component would be compromised. Because the perimeter of the planned recreational component other than along N.E. 2nd Avenue is landlocked or located along interior streets, the planned recreational component "gateway" must be along N.E. god Avenue. Mr. Zyscovich explained that such art orientation would not" only benefit the planned recreational corriponent, but would also further the City's objective of reinvigorating the N.E. 2nd Avenue corridor. 17. Mr. Zyscovich further testified that acquisition of the Church property would "absolutely" benefit the planned recreational component through improved design layout and inclusion of additional park elements (a water feature, domino area, etc.). 18. On cross-examination, neither Messrs. Carswell nor Zyscovich was questioned about their conclusions regarding the necessity for acquisition of the Church property, nor did they testify to any fact or render any opinion to suggest that acquisition of the Church property was not reasonably necessary. The two witnesses who testified on behalf of the Church did not contradict the conclusion of Messrs. Carswell and Zyscovich that acquisition of the Church property is reasonably necessary. 19. Prior to adopting a resolution of condemnation, the City negotiated extensively with the Church. The parties were close to reaching agreement on the price for a negotiated conveyance, but could not reach terms for the Church to relocate. The City offered a period of extended possession and explored ways to relocate the Church to City -owned property. 20. Pastor Devil LeGrand testified about the Church's community involvement and its activities that benefit people in Haiti. The Pastor explained that if the Church finds a suitable replacement site, it will continue to_function and its congregants will continue to practice their religion. 21. The City adopted Resolution no. 04-641 (admitted into evidence as Petitioner', Exhibit 6), which finds that acquisition of the Church property by negotiated conveyance or eminent domain serves a public purpose and is necessary. CONCLUSIONS OF LAW 1'. Under §166.401 '("Right of eminent domain"), Florida Statutes, municipalitiesi have broad condemnation authority and wide latitude in designating property for condemnation. Section 166.411(4) ("Eminent domain; uses or purposes") permits municipalities to exercise the power of eminent domain for acquisition of "public parks, squares, and grounds...." Section 166.411(10) specifically enables municipalities to condemn property to construct public recreational facilities ("[rn]unicipalities are authorized to exercise the power of eminent domain [f]or city buildings, waterworks, ponds, and other municipal purposes which shall be coextensive with the powers of the municipality exercising the right of eminent domain"). A municipalitymay also exercise its eminent domain power to "preserve public health, or for other good reason connected in anywise with the public welfare or the interests of the municipality and the people thereof ...." Section 166.411(1). 8 2. Prior to exercising its eminent domain authority, a condemnor has the initial burden to present some evidence of reasonable necessity for a taking. f See City of Jacksonville v. Griffin, 346 So.2d 988, 990 (Fla. 1977). Once such evidence is presented, the burden shifts to the property owner to demonstrate either bad faith, illegality, or gross abuse of discretion by the condemnor. Id. If the condemnor presents some evidence of reasonable necessity and the property owner does not prove bad faith, illegality, or gross abuse of discretion, the condemnor's exercise of its discretion must be upheld. Id. 3. A condemnor satisfies its initial burden by presenting "some" evidence that it has considered factors relevant to the taking, such as availability of alternate sites, costs, and long range planning. Broward County v. Ellington, 622 So.2d 1029, 1032 (Fla. 4th DCA 1993). In exercising its discretion, a condemnor has no obligation to take specific steps toward development of a proposed use prior to the taking, nor is it obligated to pinpoint the need for the specific property sought for acquisition, prepare plans, create specifications, or obtain funds prior to acquisition. ' See Griffin, supra, at 991. Moreover, Florida courts have supported takings where the use for the property was undetermined, the funds were not obtained, the timeframe to begin construction was uncertain, and there were no plans for development. See, e.g., Central and Southern Florida Flood Control District v. Wye River Farms, 297 So.2d 323 (Fla. 4th DCA 1974); see also, State Road Department of Florida v. Southland, Inc., 117 So.2d 512 (Fla. 1st DcA 1960) (reversing denial of order of taking even though there was no allocation for funding by the federal government, the extent of taking for the project was unknown, and the start date for the project was undetermined). In fact, "it is the duty of public officials to look to the future and plan for the future." Wye River, supra, at 326. Indeed, the City Commission is to be commended for providing this beautiful, long needed, park. Condemnors must also present proof of the public purpose to be served by the proposed acquisition and must establish a good -faith estimate of the property's value. Evidence of public purpose and the City's good -faith estimate of value has not been challenged by the Church and is accepted by this Court. 9 4. The City presented substantial testimonial and documentary evidence in support of reasonable necessity. The testimony of Messrs. Gay, Carswell, Zyscovich, and Quinlivan wELs credible and Petitioner's Exhibit nos. 2 through 10 were moved into evidence without objection. Petitioner's Exhibit no. 1 was properly authenticated and moved into evidence over objection. 5. The City's staff and consultants engaged in extensive analysis before designating the Church property for condemnation. Alternative sites and designs were reviewed based upon the needs of the community, costs, access, and other factors. Long-range planning, reflected by the park land assessment and comprehensive plan, was a major consideration in providing adequate park space for the Little Haiti community. The community was intimately involved in the entire process through public meetings, public hearings, oversight committees, and working groups. After substantial input from the public, City staff, and City consultants, the current location and design of the park was determined to offer the best chance to enhance the Little Haiti community and ultimately bring the park space and recreational opportunities on par with other areas of the City. 6. The fact that the City attempted to design the planned recreational component around the Church property demonstrates the appropriate exercise of its discretion. It was only after lengthy discussion and thorough consideration as to whether the proposed design and objectives of the planned recreational component could be accomplished without the Church property that a decision was made to include it. (Of course, that also suggests that it is possible, although not optimal, to plan the park while still retaining the Church). 7. During the past two (2) years, Pastor Legrand was unable to locate comparable replacement property despite good faith attempts and the evidence presented indicated that at least two (2) years would be needed for relocation of the Church to a new site 8. The evidence before this Court is that the 'City did not offer the Church a relocation site at any time during the negotiation process 10 9. The Church however, presented no evidence of bad faith, illegality, or gross abuse of discretion to overcome the City's proof of reasonable necessity. The two people called as witnesses by the Church, Adriana Santana, an employee of Zyscovich, Inc., and Pastor Devil LeGrand, provided no testimony to suggest bad faith, illegality, or gross abuse of discretion by the City. 10. Neither the Florida Religious Freedom Restoration Act (Florida Statutes, §-- 761.03(1), "FRFRA") nor the Religious Land Use and Institutionalized Persons Act (42 U.S.C. § 2000cc(a)(1), "RLUIPA") liar the City from exercising its eminent domain power in this matter. For either FRFRA or RLUIPA to apply, there must first be a showing that the government's actions will "substantially burden a person's exercise of religion." The Church has not and cannot pass the substantial burden test, as the City's condemnation of the Church property would in no way "forbid [the Church] to engage in conduct that [its] religion requires." Warner v. City of Boca Raton, 887 So.2d 1023, 1033 (Fla. 2004) (emphasis added); Cheffer v, Reno, 55 F.3d 1517, 1522 (I16 Cir. 1995). 11. Pursuant to §74.051(3), this Court has jurisdiction to "fix the time within which and the terms upon which the defendants shall be required to surrender possession to the petitioner...." Accordingly, it is ORDERED AND ADJUDGED that: 1. This Court has jurisdiction over the subject matter and the parties to this cause. 2. The pleadings in this cause are sufficient and the City is properly exercising its delegated authority for a public purpose. • 3. The Declaration of Taking and Estimate of Value filed in this cause by the City was made in good faith and based upon a valid appraisal. 11 4. Upon deposit of the amount hereinafter specified, fee simple title to Parcel 9:2, described as: Tract "K" of Reid Acres, according to the plat thereof, as recorded in Plat Book 50, Page 84, of the Public Records of Miami -Dade County, Florida street address: 6311-6329 N.E. 2nd Avenue Miami, FL 33138 shall vest in the name of the City. 5. The deposit of money in the amount set forth below will secure the persons lawfully entitled to the compensation which ultimately will be determined by final judgment of this Court. d. The sum of money to be deposited into the Registry of this Court, within twenty days • of the entry of this order of taking, shall be in the amount of NINE HUNDRED THOUSAND DOLLARS AND NO CENTS ($900,000.00). 7. The Church shall be entitled to extended possession and occupancy of the Church property for a period of twelve (12) months after the date that this order of taking is entered, If the Church has found and acquired a new location by that date, the Church may apply to this Court for an extension of up to one (1) year for construction purposes. The Church may continue to operate and conduct those activities in the same manner as it did prior to entry of this order of taking. No rent shall be payable to the City during the period of extended possession, but the Church must execute an occupancy agreement, in a form to be approved by this Court, whereby the Church agrees to maintain, at its sole cost and expense, public liability insurance in a minimum amount of $1,000,000.00 for general aggregate and hazard coverage. The Church must also agree to indemnify the City from any and all liability of any nature whatsoever that in any way arises from the Church property or the Church's extended possession, use, and/or occupancy of it. During the period of extended possession, the City may inspect the interior and exterior of the Church property for any reason whatsoever upon reasonable notice to the Church. Upon 12 expiration of the twelve (12)-month period of extended possession, the City shall be entitled to immediate possession of the Church property, unless such period is modified by subsequent order of this Court as described above and in Paragraph 8 below. 8. The Court specifically retains jurisdiction to modify the twelve (12) -month period of extended possession described in Paragraph 7 above. Upon motion filed by the Church within thirty (30) days from the date that this Order is entered, the Court will conduct a hearing to addres modification of the period and/or terms of extended possession. 9. Without further Court order, the Clerk of the Circuit Court shall issue a writ of possession to remove any and all occupants who remain in possession of the Church property, described in Paragraph 4 above, after the deadline for extended possession established through this order of taking or any subsequent order of this Court. Extended possession in favor of the Church shall not be construed as a "nonmonetary benefit" for the purposes of calculating attorney's fees payable to the Church or any other Respondent under §73.092, Florida Statutes. 10. The Church shall deliver, via personal delivery or U.S. Mail, all keys to any improvements upon the Church property to: Madeline Valdes, Property Manager, Department of Economic Development, City of Miami, 444 S.W. 2"d Avenue, 3rd Floor, Miami, FL 33130, no later than the deadline for extended possession established pursuant to the terms of this Order of' Taking or any subsequent Order of this Court. DONE AND ORDERED in Chambers, at Miami -Dade County, Florida this 16th day of February, 2005. Copies furnished to: Mitchell J. Burnstein, Esquire Robert C. Byrne, Esquire Thomas Goldstein, Esquire 13 RONALD M. FRIEDMAN CIRCUIT COURT JUDGE