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Saturday, Apr 19, 2014
Commentary

Pasco tries end-run around U.S. Supreme Court property rights ruling


Published:

Here we go again. Only months after the U.S. Supreme Court, in a case out of Florida, issued a historic opinion safeguarding property owners from overbearing government, Pasco County is trying to take property from local landowners without paying for it.

The county’s Right-of-Way Preservation Ordinance requires some property owners to turn over part of their property if they seek a permit to build on their land. The county’s goal is to acquire land for future roads. But the problem is that the county thinks the ordinance allows it to evade the constitutional requirement to pay the owners just compensation for the land that it takes.

In June, the U.S. Supreme Court ruled that a similar program by another Florida jurisdiction triggered constitutional protection for property owners.

The government must prove that its demands are necessary to mitigate for the actual impact of the proposed development, and that the condition is proportional to the impact. Unless those standards are met, the government’s attempt to wring concessions from a property owner through the permitting process may amount to an uncompensated, unconstitutional taking of property.

Pasco County designed its right-of-way ordinance to take property from developers without going through the “trouble” of paying the owners. If a landowner’s property is located where the county would like to build roads, and if the owner wants to develop the property, the county claims the authority to force the owner to dedicate the desired portion of land to the county in exchange for a development permit.

One landowner, Hillcrest Property (established by Tampa attorney Mike Kass and the late developer and philanthropist George Karpay), sued when the county applied the ordinance to Hillcrest’s plan for a new grocery store complex off the intersection of Old Pasco Road and State Road 52 in central Pasco.

Hillcrest argues that the county is requiring it to hand over a chunk of property, free of charge, so the county can expand its road system at some point in the future. That demand — which Hillcrest contends would make the project unfeasible — flies in the face of the Supreme Court’s Koontz ruling, because the county has not even attempted to demonstrate that it’s required by any impacts caused by the development.

In April, Tampa-based U.S. District Court Judge Steven Merryday ruled that Pasco County’s ordinance is nothing more than a “land grab” intended to “evade the constitutional requirement for just compensation.”

The county has appealed the case to the Eleventh Circuit Court of Appeals.

Yes, the government can require property owners to mitigate for the public impacts of development. But the Constitution does not allow the government to exact land from property owners just because the government would like to use it for something else.

Daniel Himebaugh and Christina Martin are attorneys with Pacific Legal Foundation, a public interest organization that litigates for property rights and limited government. Its Florida office is in Palm Beach Gardens.

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