Thursday, May 24, 2018
News Roundup

Federal appeals court says developer waited too long to challenge Pasco County rules making it give up land for future roads

An attempt to overturn Pasco County government's practice of forcing developers to donate land for roads was dealt a setback when a federal appeals court declared that the challenge was mounted too late.

The 11th U.S. Circuit Court of Appeals ruled Wednesday that Hillcrest Properties LLC, which filed the complaint in 2010, should have known it was adversely affected when the county approved its ordinance in 2005. Hillcrest also should have sued before the four-year legal deadline passed.

"Hillcrest's land became encumbered immediately upon the ordinance's enactment in 2005," a three-judge panel wrote. "This injury should have been apparent to Hillcrest upon the ordinance's passage and enactment because it had been owner of the property since 2001 and has been actively engaged in developing the property since at least 2003."

The decision reverses U.S. District Judge Steven D. Merryday's 2013 order that found the ordinance unconstitutional and called it a "land grab." It also lifts a permanent injunction barring its enforcement.

Merryday's order also assumed the time clock for a lawsuit began ticking when Hillcrest filed for site plan approval in 2006 or when the county denied its permit in 2007, which would have made the 2010 filing legal.

Hillcrest owns 16 acres west of Interstate 75 off Old Pasco Road. In 2003, it received a zoning change to allow commercial development. In 2006, it submitted site plans to build a shopping center. In 2007, county officials told Hillcrest it would have to donate frontage along State Road 52 for approval. Hillcrest argued the county rule unfairly forces owners to surrender land if they want to develop their property.

The 2005 ordinance said property owners must dedicate land to the county if part of it falls on a map of future road expansions. Owners who think that's unfair can argue their project won't generate enough traffic to justify the dedication or apply for a variance. The county's goal was to plan for expansions and save taxpayers millions by acquiring right-of-way before costs balloon.

Since Merryday's order, Pasco has changed its rules so the county could require the right-of-way dedication only if a project would generate enough traffic to warrant a future road improvement.

Senior Assistant County Attorney David Goldstein said Thursday that Hillcrest could appeal to the U.S. Supreme Court or pursue the matter on other legal fronts.

Hillcrest attorney David Smolker could not be reached for comment.

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