Here's the latest in a case we've been following, the property owner's cert petition, filed last week, in which a U.S. District Court invalidated a Florida county's "Right of Way Preservation Ordinance" which allows it to land bank for a future road corridors by means of an exaction. The court concluded the ordinance is "both coercive and confiscatory in nature and constitutionally offensive in both content and operation," and struck it down under Nollan/Dolan.
The transportation corridor protrudes into Hillcrest's undeveloped commercially-zoned property. Hillcrest wanted to build a shopping center and it submitted a plan to the Review Committee, which rejected the application because it did not account for the corridor. Hillcrest submitted a second plan which was rejected, and a third plan which was eventually approved, which required Hillcrest to dedicate the right of way to the county. Hillcrest reserved its right to object to the dedication. and filed a federal action seeking to invalidate the ordinance, asserting several claims including facial and as-applied invalidity under federal due process, and a takings claim under Florida law. Hillcrest had not applied for a waiver or a variance.
Although the District Court invalidated the ordinance, on an interlocutory appeal of the facial challenge, the Eleventh Circuit disagreed, applying Florida's personal injury statute of limitations to conclude that Hillcrest's facial due process claim had not been raised within four years of the time Hillcrest had been injured. The court concluded that the date of injury was the date of enactment of the ordinance, and not the date on which the ordinance governed Hillcrest's project.
The cert petition sets out two Questions Presented:
1. Whether a state statute of limitations should apply to a claim brought pursuant to 42 U.S.C. § 1983 seeking to enjoin enforcement of a county ordinance that, on its face, and in violation of the Fifth Amendment’s Due Process Clause, extortionately leverages the police power every time it is applied to coerce landowners into dedicating road right-of-way the county would otherwise have to pay for.
2. If there is a statute of limitations, whether the federal Continuing Violation Doctrine applies, such that a landowner whose property is subject to the ordinance may elect to bring a facial Due Process claim either upon enactment of the ordinance or later, within the limitations period following application of the ordinance to that landowner.
Stay tuned here, or follow along on the Court's docket.