Calling it an illegal land grab, a federal judge in Tampa has declared Pasco County’s road preservation ordinance unconstitutional.
U.S. District Judge Steven Merryday issued a scathing 52-page opinion last week comparing the county ordinance to an “out-and-out plan of extortion” and opined that “it cannot stand.”
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 saved the county untold millions of dollars.
“Nonetheless, this ordinance is an unmistakable, abusive, and coercive misapplication of governmental power, perpetrated to cynically evade the Constitution,” Merryday wrote.
He agreed with the plaintiff, Hillcrest Preserve, that the ordinance was adopted so the county could avoid using eminent domain to acquire road rights of way, a process that guarantees the landowner “just compensation” for property.
Merryday also noted that landowners who have no development plans were compensated for their property via eminent domain.
Hillcrest attorney David Smolker called the ruling a “bittersweet victory” because of the timing. The lead plaintiff, George Karpay, died on April 8, four days before Merryday’s ruling. He was vacationing with his wife in Rome.
Karpay, 83, held the controlling interest in Hillcrest Preserve, a 668-acre tract on the north side of State Road 52, west of Interstate 75 and Old Pasco Road.
Mike Kass, Karpay’s business partner, said they decided to challenge the ordinance because “we feel strongly that government should not trample over the rights of its citizens.”
Hillcrest won approval in 2003 to develop 1,599 homes and a 180,000-square-foot shopping center. The company submitted a preliminary site plan in 2006 for a shopping center anchored by a grocery store, but the county’s development review committee approved the site plan with the condition Hillcrest donate right of way to the county for the future widening of S.R. 52.
Hillcrest initially agreed to donate a 50-foot strip of land, but Pasco demanded an additional 140 feet after the Florida Department of Transportation shifted the S.R. 52 project farther north. The FDOT plans to award a contract for the road project in July.
Kass said the project cannot proceed until FDOT and Pasco County acquire the right of way from Hillcrest. “They should pay fair compensation — just like anyone else,” he said.
He said the government’s actions limited Hillcrest from being able to develop or sell the land. “They essentially have kept us from doing anything with the property,” he said.
Chief Assistant County Attorney David Goldstein, who drafted the ordinance, said “conditioning development approval on the dedication of right of way is constitutional and has been upheld by the United States Supreme Court. It’s a common practice for most local governments in Florida.”
Florida law states that “early acquisition of property to accommodate future transportation facilities is a matter of state policy and state concern.”
The state Legislature charged local jurisdictions with creating transportation corridors and using their police powers “to the greatest extent possible” to acquire corridor rights of way by donation, purchase or eminent domain “as far in advance of construction need as possible.”
Pasco County Commission Chairman Ted Schrader defended the ordinance, arguing that developers should shoulder the cost of road construction. “But for the development being there, the need for those road improvements is not necessary,” he said. “You would expect developers to recognize that and provide the necessary right of way for those improvements.”
Schrader was on the board when it adopted the disputed ordinance after the county spent $50 million to purchase right of way for the S.R. 54 widening project. That type of spending was unsustainable, he said.
“When (the late) Bob Sumner was county attorney, he had all the confidence in the world the right-of-way preservation ordinance we approved would withstand legal challenge,” Schrader said.
Paul Boudreaux, who teaches land-use law at Stetson University College of Law, said Pasco County makes a valid argument that new development means new people and more cars, hence the need for new roads. Government has the right to demand right of way in some cases. “The problem lies in the details,” Boudreaux said. “In general principle, governments can do that — if there’s a clear connection between the development and the need for new roads.”
But the Pasco ordinance went too far, he said. “The U.S. Supreme Court said you have to make a specific individual finding with each development,” he said. “Governments get into trouble when they use too broad a brush.”
The ruling could have devastating consequences for Pasco County, because it could open the door for developers who were required to donate rights of way to sue for damages.
“It could be very problematic,” Schrader said.
Goldstein said it’s too early to discuss an appeal or whether the county would continue to enforce the ordinance.
Smolker said both Merryday and the federal magistrate were emphatic that the county should “be restrained from continuing to enforce the ordinance.” That’s one of many issues on the agenda at an upcoming hearing and status conference with the judge scheduled for April 25. Smolker said he has a conflict and has asked the judge to reschedule the hearing.