Judge To Determine Whether Bramans Legal Team Will Get Information About Parking Garage Financials
Written by Risa Polansky on November 6, 2008
By Risa Polansky
Financial projections for parking at a planned new Marlins ballpark should have come into play when a judge ruled this summer that stadium plans serve a public purpose, says auto dealer Norman Braman, who vows to continue his ongoing legal battle against local governments’ plans for a stadium and other large-scale public works projects.
The parking numbers themselves are secondary, argues Miami City Manager Pete Hernandez, maintaining that it’s the concept that the garage would be self-sustaining that really matters.
The decision lies now in Circuit Judge Jeri Beth Cohen’s hands as she considers a motion filed by the Braman team asking permission to seek evidence from the city and question Mr. Hernandez about parking garage financial projections they say were not revealed during this summer’s legal battle.
"We feel it’s important information," Mr. Braman said. "We want the right to go in discovery and ask why they did it."
The motion applies only to one count of the multi-pronged lawsuit: whether the stadium serves a "paramount public purpose." The judge ruled that it does. She has ruled against Mr. Braman on all but one outstanding count in the suit.
The city was not a party to the "public purpose" count, but an assistant city attorney made closing arguments at the trial.
Mr. Hernandez, who maintains that a garage should cost no more than 10% above his original $94 million estimate, said the city provided all information available when Mr. Braman’s lawyers requested it, including, "in my understanding," October 2007 Miami Parking Authority estimates that show building a garage could cost $150 million and operating it could lose the city more than $8 million a year.
According to the motion, that document was never considered by the court.
"If they’re asking for additional information, it may be they’re fishing — I don’t know what," Mr. Hernandez said.
Bob Martinez, Mr. Braman’s attorney, said it could be that the city’s attorney did not have the information the city manager had, rather than an omission.
"Sometimes the left hand doesn’t know what the right hand is doing in government," he said.
Assistant City Attorney Henry Hunnefeld, who represented the city in court, declined to comment on the record. City Attorney Julie Bru did not respond to calls and e-mails.
It’s important that the judge see the parking authority document now, along with June 2008 numbers — also tens of millions of dollars higher — prepared by consultant Jones Lang LaSalle, "because the court’s order on that issue relied upon in some part benefits from parking garage" revenues, Mr. Martinez said.
In her court order, Judge Cohen wrote that "the court does credit evidence that the Marlins are required to pay $10 per space for all parking spaces for all stadium events, even if the spaces are not actually used. This is estimated to produce $200 million in revenues to the city over the term of the lease."
But the Miami Parking Authority estimates drawn up for the city a year ago project a nearly $8.3 million annual net loss.
Those numbers were run before the Marlins and local governments agreed to their space-payment arrangement, Mr. Hernandez noted, which, as the judge wrote, says the team is to pay for each home game $10 a space, a number set to rise gradually to $12.50 per space by the stadium’s 31st year.
Mr. Hernandez added that the Jones Lang LaSalle report "was done in June or end of June ’08. So when they did discovery, obviously that was not available. That didn’t exist"
But Mr. Martinez points out in the motion that the information was in the city’s hands "in the month preceding the trial."
The motion says the information should have been brought to light during the trial itself, not specifically during the discovery period.
But it "doesn’t make any sense" that parking cost estimates would matter in determining whether the stadium serves a paramount public purpose, Mr. Hernandez said, especially when the garage price depends heavily on timing and could change due to outside factors such as materials costs.
All of that will be considered when the time comes, he said.
John Paccione of Jones Lang LaSalle said in an interview last week that the consultant is taking another look at garage costs.
"There’s a lot of fluctuation in the marketplace right now, and that’s an advantage to the city," he said.
No matter what, Mr. Hernandez insisted any garage built would pay for itself, as the city cannot afford a project that would require a subsidy.
"What’s of most importance is that whatever we end up building… it will be done in such a way that’s self-sustaining," he said.
He maintained that the judge was not addressing the issue of cost — "the court was dealing with an issue of paramount public purpose."
Still, Mr. Braman’s motion emphasizes that the city used its lower numbers in making its case in court, and the judge referred to them in making her ruling.
"Having argued that the parking garage would provide an economic benefit to the city and the community, the city should have also informed the court that its own hired consultant and the MPA (the public expert on the construction and operation of parking garages) had disagreed with its conclusion on these key issues, and that they had, in fact, told the city that it would suffer a substantial operating loss and that the cost of construction would be at least 50% greater than the amount represented to the court," the ruling says. "Instead, the court only received an incomplete, one-sided, favorable presentation that appears not to have been accurate."
It’s now up to the judge what to make of the motion, attorney Mr. Martinez said. The judge could grant it and allow the city to be questioned. Or, she could declare it irrelevant and dismiss it altogether.
"A variety of different things could come out of it," he said.
Regardless, Mr. Braman vows to appeal his earlier losses once the judge issues her final written order on the last count in the suit, which deals with the financing plan for the stadium and other projects.
Judge Cohen has said she may rule against Mr. Braman but is waiting to formally issue her opinion until the state Supreme Court finalizes a related case.