A divided Pasco County Board of Commissioners voted last week to appeal Federal Judge Steven Merryday’s ruling overturning an ordinance that has saved the county untold millions in right-of-way costs.
“We don’t believe it is correct to have the judge declare your ordinance unconstitutional,” County Attorney Jeffrey Steinsynder said. The 2005 ordinance lets the county demand land in exchange for zoning and development rights.
Merryday called it an “illegal land grab” and said the ordinance “cannot stand.”
Only Commissioner Kathryn Starkey agreed with the judge. “This is my opportunity to say I’m not comfortable with that ordinance,” she said.
“Well, I’m not comfortable with the alternative,” Chairman Ted Schrader countered.
Pasco County could be facing hundreds of claims from property owners and developers who were required to donate land to the county or Florida Department of Transportation as a condition for a rezoning or building permit.
“Now that the ordinance has been found unconstitutional, all the people from whom they got property are going to sue them, either to get the property back or for damages,” said Mike Kass, an attorney and part-owner of Hillcrest Preserve.
Kass and his business-partner, George Karpay, sued the county when officials demanded they donate 140-feet of right-of-way fronting their property on State Road 52 as a condition of approval for a shopping center. Karpay died four days before Merryday issued his ruling.
Attorney David Smolker, who represents Hillcrest, said he wasn’t surprised that commissioners voted to appeal. “What option do they have?” he asked. “They’re in quite a pickle.”
Since the ruling, attorneys who practice in Pasco County have been fielding phone calls from clients who want to know how to sue for damages.
“Hundreds of property owners have been affected by this,” attorney Shelly May Johnson said. “There are instances when developers can legally and rightfully be required to donate right of way, but this ordinance went far beyond that.”
Johnson said she knew the ordinance would be challenged, but it took someone from outside Pasco to do it. “There were no clients who were willing to put themselves out front,” she said. “This was approved during the real estate boom, and no one had the time or money to shut a project down to challenge it.”
Others accepted it as the cost of doing business in Pasco County. For Bimal Bhojani, who moved to Wesley Chapel from England to open a day care and preschool on Overpass Road, the taking seemed “un-American.” He was required to dedicate right-of-way to the county even though he paid close to $250,000 in transportation impact fees and built a right turn lane.
“I’m not entirely familiar with American laws,” Bhojani said. “I just assumed it was part of the bargaining process. For a county that wants regeneration and job creation, it seems counterproductive.”
Property owners could apply to the county’s Development Review Committee for a waiver. Saint Petersburg attorney Jim Hellinger said he sought a waiver on behalf of one client, A Plus Fireplaces on Ridge Road. “It was the most onerous thing I’ve ever been through,” he said. Hellinger said the company needed to expand, so the owner bought a 3-acre parcel on Ridge Road, about a mile from his existing store.
“When the nice people at Pasco County were through with him, he could only develop half of it. They wanted to take half his property, even though there was no plan in our lifetime to widen that road,” Hellinger said.
He had to hire an engineer and an appraiser and had to pay them to attend appeal hearings that the DRC continued. “They just delayed it and delayed it and made it more expensive for my client,” Hellinger said. “It was nuts. Nuts! I get angry talking about this.”
Hellinger got the waiver, but it cost his client $50,000 and delayed the project for a year. “It never should have cost him a nickel,” he said. “What those people are doing up there is unconscionable. I hope they get creamed over this.”
Property owners in rural areas were subject to the same regulation. 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 even though it has no plans to widen Hale Road beyond its current two-lanes.
“There was no proportionality,” attorney Clarke Hobby said. “There was a disconnect between what they took and what was really important. They put every arterial and collector road on the list, even if it was never going to be more than two lanes.”
Individual property owners who were affected could file a reverse condemnation claim to get compensation for the land, or they could sue to force the county to return it.
Johnson said a class action is likely. “It’s unfortunate for the county,” she said. “The opinion was very clear, and I agree with the judge, that the county should not continue to enforce the ordinance, even if they appeal.”
David Goldstein, Pasco’s chief assistant county attorney, said the county does not have a list of property owners who were required to donate right-of-way in the seven years since the ordinance went into effect. “You shouldn’t assume that because someone donated right-of-way, that is was a condition because of the ordinance,” he said.
Hobby said that “virtually every dedication from the time the ordinance went into effect was a result of the ordinance.” And it wasn’t just road right-of-way. “If the county decided they wanted to build a drainage pond on your property, they made you donate that right-of-way, too,” he said.
Kass suspects that County Administrator John Gallagher knows exactly how many property owners have potential claims. “I definitely think they have a list,” he said. “They know what their exposure is; it could be huge. We’re talking tens of millions, and this is all because of a recalcitrant county administrator up there who thought he could get away with just taking people’s property. We could have resolved this but he wanted to find out if it was unconstitutional; well now he knows it’s unconstitutional and he’s retiring.”
Johnson said Gallagher’s successor will have to deal with the fallout. “Whoever the county administrator is that walks into this is going to have a serious problem to deal with,” she said.
Kass said Hillcrest will have a trial later this year to determine to what damages the company is entitled. The Department of Transportation, which is scheduled to widen S.R. 52 this year, has not contacted him about purchasing the needed right-of-way.