TAMPA - Federal Judge Steven Merryday grudgingly approved Pasco County's motion to continue enforcing its road right-of-way ordinance while the county appeals his ruling that it is unconstitutional.
In his initial ruling in April, Merryday said the ordinance "cannot stand," and in May he issued a permanent injunction to prevent the county from continuing to demand free road right of way in exchange for development rights. But last week the judge said he could find no compelling reason to refuse the county's request for a stay of the injunction.
"The continued enforcement of an unconstitutional ordinance is abhorrent," he wrote in the order June 24, noting that property owners who have applied for permits or zoning changes should be alerted to the court ruling.
"The status quo is awkward and unfortunate but tolerable," he wrote.
The 2005 ordinance lets the county demand land in exchange for zoning and development rights. During the boom years of the mid-2000s, county officials used that policy to acquire thousands of acres of land free. Much of that land has been banked for future road needs - and has saved the county untold millions of dollars.
If the county loses the appeal, it could be facing hundreds of claims - or a class-action lawsuit - from property owners and developers who were required to donate land as a condition for a rezoning or building permit.
Commissioners, who voted to appeal Merryday's decision to the 11th Circuit Court of Appeals, will consider a major revision this month to the land development code that changes when and how it can exact right of way from a property owner without paying for it.
Chief Assistant County Attorney David Goldstein, who wrote the original ordinance, said under the new policy, Pasco "would do a rough proportionality calculation" before requiring a right-of-way dedication.
In other words, the county would require the right-of-way dedication only if the applicant's project would generate enough traffic to warrant a future road improvement.
Goldstein said the zoning staff already has done the analysis for property owners who asked the county to strike the condition on their site plans that required a right-of-way dedication.
"Since Judge Merryday's Order was issued, yes," he said. "And there were some instances where we did this review even before Judge Merryday's order was issued."
Gerald and Elaine Flatt bought 14 acres of agricultural land on Hale Road in Land O' Lakes to build a horse farm. When they applied last year to subdivide the parcel into two lots, the county required them to donate 67.5 feet of right of way fronting Hale Road.
The value of the right of way, $22,576, exceeded the mobility fees the Flatts would have been charged for building single-family homes on their two lots, so the planning staff agreed to strike the condition.
Attorney David Smolker, whose lawsuit overturned the ordinance, said the revision doesn't correct all the defects in the original ordinance. For example, it doesn't change the difficult process for property owners to appeal for a variance.
"The court found that to be unconstitutional as well," Smolker said.
Merryday also denied Smolker's request that the county pay his firm nearly $600,000 in legal fees, plus a $125,000 enhancement bonus for exceptional representation and $237,191 for expenses, including expert witnesses.
Smolker said the bonus should apply because the ruling benefited not only his client, but the "hundreds of landowners throughout Pasco County ... who would otherwise be subjected to the county's extortionate leveraging of its police power and to its uncompensated taking of their properties."
Legal fees and expenses would be nearly $1 million. "The judge denied it without prejudice," Smolker said. "He felt the motion was premature, but we can refile it after the appeal."