Orange County commissioners voted 4-3 Tuesday to challenge the Central Florida Expressway Authority’s move to use eminent domain to acquire about 24 acres of conservation land near Split Oak Forest to build a toll road.
The toll road is already planned to run through the protected Split Oak Forest, a nearly 1,700-acre preserve stretching across Orange and Osceola counties. In August, CFX’s governing board declared additional Orange County land, including 24.3 acres of environmentally-sensitive land, as necessary for building State Road 534.
Just under three acres of that environmentally-sensitive land is in Eagles Roost, a 232-acre park near Split Oak Forest and a wildlife refuge called Back to Nature. Commissioners said they weren’t aware CFX planned to acquire part of Eagles Roost until last year, when it was included in the highway authority’s declaration of land necessary for the future toll road.
That August declaration was the first step in the eminent domain process, which governments and other authorities can use to acquire land deemed necessary for a public purpose. In this case and many others, that public purpose is a road.
RELATED: Central Florida Expressway Authority says it needs more conservation land
‘Taking’ property through eminent domain
Tuesday’s vote by the Orange County Commission marks another key step in the eminent domain process. But before the vote, the county on Friday received written offers from CFX to purchase the four parcels of environmentally-sensitive land, totalling about 24 acres.
Entities exercising their eminent domain power are required to make such monetary offers, as proof of their effort to negotiate with property owners in good faith. Now that the offer has been made, Orange County has 30 days to respond before CFX can file suit. Within that 30-day timeframe, the county could request more information about how CFX appraised the land’s value. The county could also enter into a pre-suit mediation process with the agency, slowing down the possibility of a lawsuit.
But instead, commissioners voted Tuesday to fight CFX’s attempt to use eminent domain. In doing so, they acted against legal advice provided by the county’s attorney’s office.
‘Insult to injury’
Senior Assistant County Attorney Debra Babb-Nutcher has been working on eminent domain cases in Florida since the 1990s. She told commissioners Tuesday, while not impossible, stopping an authority like CFX from using its eminent domain power is “very difficult.”
“We won't win, because we are an inferior entity (to CFX),” Babb-Nutcher said. “The only way to defeat an order of taking is we would have to show bad faith or gross abuse of discretion, and it is very difficult to prove that.”
But several commissioners contend that CFX was acting in bad faith from the start.
“This all came from a bad-faith negotiation, where you promised that no part of Orange County would be involved,” said District 1 Commissioner Nicole Wilson. “The issue is, I think we are trying to play fair against an unfair player.”
Wilson said back in December of 2019, when county commissioners voted to support CFX’s efforts to build a toll road through part of Split Oak Forest, they were assured the project would only impact land in Osceola, not Orange. At that time, Wilson hadn’t yet been elected to the commission but was attending the 2019 meeting in support of Friends of Split Oak Forest.
Last year, upon learning of CFX’s plans to also acquire nearby conservation land in Orange County, Wilson raised questions about how any of that land — especially Eagles Roost, a Green PLACE property — could’ve wound up in the toll road’s path without notice to commissioners or the public.
“This is really insult to injury, and that injury was really based on quite a few misrepresentations,” Wilson said Tuesday.
Correcting the record
Initially, the county maintained that staff had indeed informed commissioners, back in 2019, that Eagles Roost was part of CFX’s “preferred alignment” for its planned toll road. The county said as much in a statement sent via email to Central Florida Public Media on Aug. 8.
But the following week, a county spokeswoman walked back that statement, after Wilson requested a correction to the record. The corrected statement reads in part:
“The discussion (in 2019) centered almost entirely on Split Oak Forest. Eagles Roost was never mentioned, nor was there any indication that the preferred alignment would require land previously acquired for Eagles Roost.”
“It was never part of the discussion in 2019,” Wilson said Tuesday. “It is all factually incorrect. So this entire record, to me, feels very tainted. And I don't know how to get that right.”
Babb-Nutcher said, at this point, there’s not much the county can do.
“I know that it's frustrating, what happened,” Babb-Nutcher said. “So far, they've followed the necessary steps to get to this point, despite what they may have said in 2019: that we're not going to be touching your parcels.”
Legal challenges and ‘creative solutions’
For District 5 Commissioner Kelly Semrad Martinez, the inconsistency reflects a troubling lack of transparency, making it hard for voters to trust in county government.
“Confidence in this democratic process is worth more than $2.3 million,” she said. “There’s no price tag for this.”
Semrad Martinez was citing the price she said CFX has offered the county for all four environmentally-sensitive parcels: “$2.3 million and some change.” In 2006, Orange County paid $8.5 million for Eagles Roost, according to Environmental Program Supervisor Beth Jackson.
Orange County could push back on CFX’s initial offer during the pre-suit mediation process, Assistant County Attorney Georgiana Holmes said.
The process would also allow the county to negotiate with CFX on other “creative solutions” beyond financial offers, such as mitigation land. Declining the pre-suit mediation process means Orange County would lose its chance to work with CFX on those “creative solutions,” Holmes said.
Still, Semrad Martinez was unswayed.
“It’s not about a legal win, it’s about voter confidence,” Semrad Martinez said. “It's about telling people that your local democratic process matters, and your local government is going to stand up in court and ask a judge to give the recipe for success to conserve our conservation land.”
In the last two election cycles, Semrad Martinez said, voters have approved six constitutional amendments focused on protecting Orange County’s natural resources, including a 2020 charter amendment to protect Split Oak Forest.
That charter amendment has been the subject of a years-long and repeatedly unsuccessful legal challenge from Osceola County. Most recently, in November, an appellate court found Orange County’s charter amendment to be legally sound. Osceola has asked for a rehearing, in hopes of the Florida Supreme Court hearing the case.
“We don't think they'll be successful,” Babb-Nutcher said of Osceola’s most recent challenge.
But, Babb-Nutcher added: “It's also important to note that although it was a great win — we're very proud of the success, that we're upholding our charter amendment — that case has nothing to do with CFX's ability to use its power of eminent domain to acquire Orange County's parcels.”
Once a lawsuit is filed in an eminent domain case, Babb-Nutcher said, all attorney’s fees and other costs are covered by the suing entity, which in this case would be CFX.
No deal
An earlier motion from District 6 Commissioner Michael Scott, seconded by Mayor Jerry Demings, would’ve directed the county to enter into pre-suit negotiations with CFX.
“I'm all for being a gladiator, right? But if we can resolve this in a way that makes sense in a conversation, why not make that effort?” Scott said.
Scott’s motion failed, 3-4.
Semrad Martinez made the winning motion, seconded by Wilson, to challenge CFX’s attempt to take Orange County land. District 3 Commissioner Mayra Uribe and District 4 Commissioner Maribel Gomez Cordero also voted for the motion.
