Posted by: Patricia Salkin | August 26, 2014

Eleventh Circuit Finds Facial Substantive Due Process Claim Accrued at the Enactment of an Ordinance

The Pasco County Board of County Commissioners (“Commissioners”) enacted the Right–of–Way Preservation Ordinance as part of a comprehensive plan to expand public highways in the county by 2025. The Ordinance requires landowners whose property encroaches on SR 52 to convey in fee simple a portion of their property as a condition for receiving a development permit from the County. The Ordinance also contains a provision allowing developers to seek a dedication waiver upon a showing that the “amount of land required to be dedicated to the County … exceeds the amount of land that is roughly proportional to the transportation impacts of the proposed development site.” In this case, Pasco County appealed from the District Court’s decision granting a partial summary judgment on Hillcrest’s motion and issuing a permanent injunction against enforcement of the Right–of–Way Preservation Ordinance (“Ordinance”). The District Court held that the Ordinance facially violates substantive due process under the Fourteenth Amendment, and that this claim was not barred by the statute of limitations. It also denied Pasco County’s motion for summary judgment on Hillcrest’s as-applied substantive due process claim.

The court looked to the Sixth and Ninth Circuits reasoning in Kuhnle and Action Apartment Association respectively, and found that Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. This was due to the fact that its property would have decreased in value at that time because any current or future development plans would have been subject to the Ordinance’s requirement that, in exchange for granting a commercial development permit, Hillcrest would have to deed part of the land to the county without payment for the acquisition. The court further found that this injury should have been apparent to Hillcrest upon the Ordinance’s passage and enactment because it had been the owner of the property since 2001 and had been actively engaged in developing the property since at least 2003. Accordingly, the court vacated the District Court’s holding and found that Hillcrest’s facial substantive due process claim accrued when the Ordinance was enacted on November 22, 2005, and was time-barred when Hillcrest filed this action more than five years later on April 7, 2010.

Hillcrest Property, LLC v Pasco County, 754 F.3d 1279 (11th Cir. 6/18/2014)

The opinion can be accessed at:

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