THE OPENING OF A PANDORA'S BOX: HOW SPORTS TEAMS EXPLOIT THE BROAD READING OF KELO TO DEVELOP SPORTS STADIUMS.

• Author: Racine, Bruce

Introduction 144 I. The Evolving Nature of "Public Use" and Eminent Domain 149 A. History of "Public Use" and Eminent Domain 149 i. Berman v. Parker. The Use of Eminent Domain for Economic Development Starts 151 ii. Hawaii Housing Authority v. Midkiff. The Court Further Expands "Public Use" 152 iii. Kelo v. City of New London: The Court Opens a Pandora's Box 153 iv. Ramifications of Kelo 156 II. Eminent Domain Relating to Sports Stadiums and Arenas 158 A. History of Using Eminent Domain for Sports Stadiums and Arenas in the United States 158 B. Rampant Building of Sports Stadiums and Arenas During the Last Few Decades 161 C. Recent Uses of Eminent Domain by Sports Teams and Cities 164 i. Nationals Park: Eminent Domain in the Nation's Capital 165 ii. Goldstein v. Pataki: The Nets Move to Brooklyn 166 iii. Sacramento Kings: Eminent Domain Usage Spreads to the West Coast 168 iv. Audi Field: Eminent Domain Returns to the District 170 D. Future Problems of Eminent Domain with Sports Stadiums 173 E. The Power of Snorts in People's Lives 176 III. Ending Sports Teams' Exploitation of Kelo for Sports Stadiums 180 A. The Supreme Court Could Narrow Kelo 181 B. State Legislatures Stepping In 185 C. State Courts Narrowing Takings Under State Laws 187 D. Eminent Domain and Relocation Contractual Provisions 190 E. The Public Purpose Doctrine 190 IV. The Solutions That Can Work 192 Conclusion 195 INTRODUCTION

The Faith Deliverance Temple sits in the middle of downtown Orlando, Florida, right near the Amway Center, where Orlando's National Basketball Association (NBA) team plays. (1) The Faith Deliverance Temple has been serving the Parramore residents in Orlando for over 40 years; the Temple has been at its current location for almost three decades. (2) In 2014, the City of Orlando approached the church to buy its property through a voluntary acquisition. (3) When the church refused to negotiate with the City because its roots in the community were too strong, Orlando looked into other options to acquire land to build a new Major League Soccer (MLS) stadium for the Orlando City Soccer Club. (4) The City settled on using eminent domain to obtain the land. (5) At first, the City threatened the Faith Deliverance Temple with eminent domain, but the church still refused to sell their land. (6) Weeks of negotiations over prices eventually faltered, forcing Orlando to file an eminent domain lawsuit to take the land. (7)

The City of Orlando was under a tight timeframe to begin constructing the stadium in time for the 2016 MLS season. (8) The Faith Deliverance Temple had no intention of moving and decided to play the long game with city officials, which meant challenging the taking in court. (9) In January 2014, Circuit Judge Patricia Doherty ruled that the stadium served a public purpose and the City had the right to take the land needed for the MLS stadium. (10) Despite this ruling, the church chose to continue challenging the taking. (11) But, by this point in the suit, Orlando's use of eminent domain to take property from a small church to build a $100 million stadium became national news. (12) After receiving backlash for their intended actions, City officials stopped pursuing the church's land and relocated the stadium one block from the original plan. (13) Today, the Faith Deliverance Temple stands in the shadow of the Orlando City Soccer Club's stadium. Orlando's use of eminent domain made national news as reporters from ESPN, Forbes, and The Washington Post wrote articles about the use. (14) Many reporters observed that despite Florida having some of the strongest post-Kelo (15) eminent domain reform laws in the country, the judge ruled for the City. (16)

Throughout the country, cities and local governments compete to build the next greatest stadium or arena. Land use experts Amirit Kulkarni, Brenda Aguilar-Guerrero, and David Skinner observed that "[c]ities, counties and private enterprises throughout the U.S., particularly in California, are competing to recruit and retain professional sports teams. The decisive factor in nearly every proposed deal is providing a new multi-million dollar sports arena." (17) In the past 27 years, there have been over 122 sports facilities erected in the United States. (18) In the last 12 years alone, the four major sports leagues--the National Football League (NFL), National Basketball Association (NBA), Major League Baseball (MLB), and National Hockey League (NHL)--have built 27 stadiums or arenas. (19) These statistics on major stadiums do not include smaller leagues like MLS, which has constructed, or is in the process of constructing, 12 new facilities. (20)

The use of eminent domain to build these stadiums or arenas has risen significantly since the Supreme Court's 2005 decision in Kelo v. City of New London? (21) Sports team owners see the benefits of building a facility as close to downtown areas as possible and view eminent domain as a practical means to achieving that goal. (22) Before 2005, sports team owners rarely used eminent domain to acquire the land on which to build their facility; by contrast, since 2005, at least eight sports team owners have used eminent domain to secure land. (23) Teams now petition local governments to use the power of eminent domain, given the Supreme Court's Kelo interpretation of the word "public use" in the Takings Clause. (24)

While other articles have addressed sports team owners' use of eminent domain to obtain the land on which to build their sports arenas, this Note discusses if it is time for a critical reexamination as to whether this is a proper use of eminent domain. (25) Since the Kelo decision, the effects and consequences of the Court's expansive view of what constitutes an acceptable "public use" have raised major concerns in many communities. Invoking eminent domain, local governments are transferring title of private property from one private entity to another. Eminent domain remains an attractive option for local governments' attempts to find new ways to keep sports teams in their cities and build the next "premier" stadium or arena. While certain writers have suggested limiting eminent domain by passing local or state laws that restrict what constitutes an appropriate public use, this Note maintains that this is not sufficient, as these laws could pit jurisdictions or states against one another. (26) Other authors have suggested increasing the amount of compensation paid for the taken land, but this Note contends that such a proposal does not address the fundamental question of eminent domain's constitutionality. (27) As detailed below, the government should not use eminent domain for sports stadiums or arenas for the primary benefit of sports team owners. This Note argues the Supreme Court should narrow the current broad holding of Kelo and the Takings Clause. A narrow interpretation of the Takings Clause would prohibit governments from caving to the demands of sports team owners to use eminent domain to construct sports facilities.

Part I of this Note discusses the history of the interpretation of "public use" in the Fifth Amendment and the government's use of eminent domain. Part I further reviews how the Court has interpreted the phrase "public use" over the decades, leading to an analysis of two major cases--Hawaii Housing Authority v. Midkiff (28) and Berman v. Parker (29)--that gave rise to the Kelo decision. After examining those cases, this Note construes the Kelo decision by dissecting the Court's broad reading of the Takings Clause and its ramifications.

Part II reviews the criticism and support of the broad interpretation of Kelo. Part II also scrutinizes Kelo's use for building sports stadiums by determining how sports team owners build sports stadiums at a much higher rate presently than before. Part II then considers how sports team owners lobby local governments to utilize eminent domain to acquire the land they need for new stadiums or arenas. Further, this Part scrutinizes four recent cases of sports team owners using eminent domain to build sports stadiums or arenas, and their implications for potential future use of eminent domain for sports stadiums or arenas. Part II, however, also analyzes the perceived benefits that sports stadiums and arenas provide cities, and why building new stadiums or arenas can work if done properly. Lastly, Part II analyzes how sports stadiums and arenas are being built at an accelerating rate, displaying the need to resolve the overuse, and possible exploitation, of eminent domain by sports team owners and local governments.

Part III explores potential solutions to this excessive use of eminent domain. This Note submits that the Supreme Court should revisit the issues in Kelo and limit the interpretation of "public purpose" and "public use" in the Takings Clause. If the Court does not explicitly overrule Kelo, then the Court should read the Takings Clause to guarantee that local governments cannot sell or lease to private developers private land taken through eminent domain, for the benefit of sports team owners. Part III discusses other approaches that state legislatures and courts can apply to the extensive reliance on eminent domain, particularly if the Supreme Court refuses to review Kelo.

Part IV explains which solutions from Part III are feasible. Part IV presents strengths and weaknesses related to each possible solution and why some responses are more likely to succeed than others. This Part also offers the most direct way to curb the exploitation of sports team owners utilizing eminent domain. Finally, in conclusion, this Note forecasts a potential case that might rise to the Supreme Court and how the Court should rule.

1. THE EVOLVING NATURE OF "PUBLIC USE" AND EMINENT DOMAIN

   This Section reviews the key Supreme Court cases leading to the Kelo decision, particularly focusing on how the Court has developed its interpretation of "public use" in the Takings...