Remember that decision by a U.S. District Court in Tampa, Florida last year that we crowed about? The court held that a county's "Right of Way Preservation Ordinance" which allows it to land bank for future road corridors by means of an exaction is "both coercive and confiscatory in nature and constitutionally offensive in both content and operation."
A property owner brought a substantive due process claim, and the court first rejected the county's argument that the substantive due process claim was not ripe under Williamson County because Hillcrest had not pursued a waiver or variance. It also concluded the Right of Way Preservation Ordinance violated the Takings Clause because it shifts the burden to disprove rough proportionality to the property owner and empowers the county to obtain land in excess of what it would otherwise get in the absence of the ordinance. The court enjoined enforcement of the ordinance.
The county filed an interlocutory appeal, and the Eleventh Circuit reversed. Applying Florida's personal injury statute of limitations, In Hillcrest Property, LLC v. Pasco County, No. 13-12383 (June 18, 2014), the court held that if Hillcrest wanted to facially challenge the Ordinance, it had to have brought the claim within four years. Within four years of what, you ask? Well, within four years of knowing that it was injured. And when was it injured? When the ordinance was adopted, answered the court (which happened to be more than 4 years before Hillcrest brought its claim).
But wait, you say, isn't this a "knew or should have known" situation, and how could Hillcrest have known it was injured until it put together its development proposal and actually tried to develop the land (you know, to avoid a Williamson County type claim)? Not relevant, held the court, this is a facial challenge to the ordinance, and even though a case of first impression in the Eleventh Circuit, the Ninth and Sixth hold that a facial claim accrues upon adoption of the ordinance.
We are persuaded by the reasoning expressed by our sister circuits in Kuhnle and Action Apartment Association. Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. Its property would havedecreased in value at that time because any current or future development plans would have been subject to the Ordinance’s requirement that, in exchange for granting a commercial development permit, Hillcrest would have to deed part of the land to the county without payment for the acquisition. This injury should have been apparent to Hillcrest upon the Ordinance’s passage and enactment because it had been the owner of the property since 2001 and had been actively engaged in developing the property since at least 2003.
Slip op. at 9.
The court relied on Action Apartment Ass'n v. Santa Monica Rent Control Bd., 509 F.3d 1020 (9th Cir 2007) for this proposition. Ninth Circuit Judge Alarcon, sitting by designation, authored the Hillcrest Property opinion, so perhaps it should not come as a suprise that the court found a Ninth Circuit case persuasive. The one interesting line in the opinion is on page 5, where the court notes that the issue is one of first impression in the Eleventh Circuit but that "[s]ome of our sister circuits, however, have applied this rule to facial substantive due process claims alleging property deprivations." Slip op. at 5 (emphasis added). Some? Are there others which don't?
And how does the court's conclusion square with the county's argument in the District Court that the case wasn't even ripe? "A foolish consistency is the hobgoblin of little minds," you little statesman. Or so counseled Emerson. And the Eleventh Circuit, even though it never addressed this arguing-in-the-alternative approach.