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Pasco County land ordinance faces test in federal court

The owners of a 16-acre commercial parcel outside San Antonio could be on the verge of defeating an ordinance that allows the county to bank land at low prices for future road corridors.

Pasco's so-called Right of Way Corridor Preservation ordinance is being challenged in federal court by Hillcrest Properties, which owns the parcel just west of Interstate 75 off Old Pasco Road. Hillcrest argues the ordinance unfairly forces owners to surrender land at no cost to the county if they want to develop their property.

Last month, a federal magistrate agreed, suggesting the law is unconstitutional.

The ordinance is a "calculated measure by the county to avoid the burdens and costs of eminent domain and take private property without just compensation," magistrate Thomas McCoun wrote in his March 9 report.

The ordinance has not been struck down. McCoun's recommendation now heads to U.S. District Judge Steven Merryday. The county now hopes to convince the judge not to follow the magistrate's findings.

Attorneys for the two sides filed responses to the report Friday. A ruling could be several weeks away.

The stakes are much higher than the fate of a 16-acre parcel near San Antonio. If the ordinance is ruled unconstitutional, the county will no longer be able to require such land donations and could have to pay more for right of way in the future. Also, a ruling could open the door for dozens of other landowners who received past approvals to sue the county for damages.

An adverse ruling wouldn't only affect Pasco and developers who do business there. It could also give other counties and cities pause before passing such a measure.

The ordinance, passed in 2005, says property owners must dedicate a portion of their land to the county if part of it falls on a map of future road expansions. If owners believe the dedication is unfair, they can argue their project won't generate enough traffic to justify the land dedication. They can also apply for a variance that the requirement creates an "inordinate burden."

The county's key goal was to plan for future road expansions and to save taxpayers millions of dollars by acquiring right of way before the cost balloons. Consider the recently completed widening of State Road 54 in Wesley Chapel. The project cost roughly $100 million, but only about 30 percent of the cost was for construction. The rest went toward buying land.

"Right now we get a lot of right of way under that ordinance, donated to the county," said County Administrator John Gallagher. "If that stops, one of two things happen. The impact fees go up to cover the additional cost of the right of way, or the roads don't get expanded."

And if the roads aren't expanded, some developments that generate too many car trips could be stalled.

Hillcrest in 2007 agreed to give up 50 feet of right of way for a future State Road 52 widening. But then the state Department of Transportation shifted the future alignment of the highway to the north, requiring an additional 90 feet of right of way.

Owners said that decision reduced developable land on the parcel by about 25 percent and caused a grocery store development to pull out. The county and Hillcrest tried to negotiate compensation for the land, but those talks broke down. Hillcrest sued in April 2010.

"The ordinance effectively forces landowners seeking development approval to choose between that approval and the right to be compensated for the taking of their property," Hillcrest's lawyers argue in court briefs.

Assistant county attorney Nicki Spirtos declined to comment on the suit because Merryday has not issued a ruling.

In court briefs, the county argues Hillcrest declined to seek remedies available under the ordinance and noted that a Hillcrest lawyer agreed to dedicate the land required by the county ordinance during a 2007 meeting of the Development Review Committee.

The county also argues Hillcrest cannot prove that the ordinance "always operates unconstitutionally." As such, the court cannot strike down the ordinance on its face.

Lee Logan can be reached at llogan@tampabay.com or (727) 869-6236.

Pasco County land ordinance faces test in federal court 04/07/12 [Last modified: Saturday, April 7, 2012 3:24pm]
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