Amid orchestra search, no easy answer to Payne Park legal question

The Sarasota Orchestra has said a lack of legal clarity prevents it from pursuing the construction of a music hall in Payne Park, the location the organization has called the only viable site for a new venue within city limits.

Depending on the degree of certainty the orchestra is looking for, it may not be possible for the city to proactively answer the questions surrounding the property — at least not without a firm relocation commitment from the orchestra.

On June 17, City Attorney Robert Fournier sent a memo to City Manager Marlon Brown regarding the prospect of the city obtaining a declaratory judgment on the legality of building a music hall in Payne Park.

Since 2019, opponents of the orchestra’s push to move into Payne Park have cited a provision in the property’s 1925 deed that states the land must be used “for park, playground and kindred uses.” Although Fournier has said he believes the city could effectively argue that a music hall is an allowable use, a group of residents have suggested a declaratory judgment could definitively settle any legal issues.

Fournier, however, said he believes the city is not in a position to seek a declaratory judgement. Fournier said a declaratory judgement can only be requested if there is a practical need to obtain one, not in situations where a party is only trying to procure legal advice. To meet that standard, Fournier said both the city and the orchestra would need to have a firm commitment to place a music hall in Payne Park, not just an interest in exploring the possibility.

“Otherwise, the suit is merely seeking an advisory opinion, which the courts cannot do,” Fournier wrote. “Not only that, but the city would be incurring the expense of the suit without a commitment from the orchestra to locate in the park if the suit were successful.”

Although orchestra President and CEO Joe McKenna has said legal issues are an obstacle to considering Payne Park as a new home, he has not publicly shared specific steps the city could take to address those issues.

“Our sense is that it’s in their court to determine how we might approach those items,” McKenna said in a previous interview with the Sarasota Observer.

After receiving Fournier’s memo, Brown said he would meet with McKenna in the next several weeks and provide an update on the orchestra’s search to the City Commission in July or August.