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Saturday, May 26, 2018
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Appeals court overturns ruling on Pasco’s right-of-way ordinance

The 11th Circuit Court of Appeal has overturned a federal judge’s ruling that Pasco County’s right-of-way ordinance was unconstitutional.

The three-judge panel that heard the case in March issued the 10-page opinion this week vacating the 2013 ruling by Judge Steven Merryday that compared the 2005 ordinance, which let the county demand land in exchange for zoning and development rights, to an illegal “land grab.”

The court ruled that Hillcrest’s developers waited too long to mount a challenge on the legality of the ordinance.

“We vacate the permanent injunction and summary judgement on Hillcrest’s facial challenge because we are persuaded that the statute of limitations began running on the date the ordinance was enacted,” the panel ruled.

Hillcrest founder Mike Kass and his business partner George Karpay sued the county in 2010 after 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. They said the right-of-way amounted to 28 percent of their commercial property.

The court reasoned that the “injury should have been apparent” to the developers when the ordinance was approved because they had owned the property since 2001 and had been developing it since 2003.

“We’re obviously very disappointed,” Hillcrest attorney David Smolker said. “It’s not all over. There’s still going to be a trial on the as-applied claim - the court left that open.”

Chief Assistant County Attorney David Goldstein said the ruling means other property owners and developers across Pasco County won’t be able sue for damages based on an earlier right-of-way donation unless they made a claim within the four-year statute of limitations.

“It’s a positive development, but I’m hesitant to say anything more because the (Hillcrest) case isn’t over,” he said.

Pasco County and Florida Department of Transportation already paid the owners of Hillcrest Preserve $4.7 million to settle the takings claim and clear the way for the road widening, which is underway now. Pasco County’s portion of the settlement was $1.5 million.

Goldstein said it’s unlikely the county would go back to doing business the way it used to, especially while the Hillcrest case is still open. Pasco commissioners amended the ordinance last year to change when and how it can exact right-of-way from a property owner without paying for it.

Under the new policy, the county staff conducts 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.

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