Here's the amici brief of the National Association of Home Builders, the National Association of Realtors, the National Association of Independent Business Small Business Legal Center, and others in the case we've been following out of the federal courts in Florida about a county's "right of way preservation" ordinance (which is somewhat similar, but perhaps worse in some ways than North Carolina's Map Act).
As you might recall, the federal district court held that the ordinance -- which allows the county 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" -- violated Hillcrest's due process rights. Yes, the Takings Clause was part of the mix in that it was Hillcrest's right to just compensation that the county wrongfully interfered with (see Nollan, Dolan, and Koontz), but this was a Due Process case and not a classic "takings" case seeing compensation.
The Eleventh Circuit reversed, concluding that Hillcrest had not raised its facial due process claim within the applicable four-year limitations period, because the window on the statute of limitations opens when an ordinance is adopted, and not when the owner put together its development proposal and actually tried to develop the land (maybe the reason it waited was so that it had article III standing, and it wanted to avoid a Williamson County argument?).
Hillcrest filed a cert petition.
The NAHB amici brief urges the Court to review the case, and argues:
The Eleventh Circuit erred by creating a blanket rule of law that the mere enactment of an ordinance always commences a statute of limitations for a facial substantive due process claim. Such a rule creates an untenable scenario since property owners will often lack Article III standing to bring a claim within the time allowed under a statute of limitations, thereby effectively shutting the courthouse door. In cases where courts have found that the enactment of a law starts the statute of limitations clock, there have been concrete and particularized injuries to the plaintiffs.To uphold the Eleventh Circuit’s decision will waste precious judicial resources by requiring property owners to prematurely initiate lawsuits. At the same time, many of the amici members are small businesses, and are unable to mount a long and costly legal challenge before suffering a concrete injury.
Further, this is not a Fifth Amendment Takings Clause case. Yet, the Eleventh Circuit incorrectly utilized statute of limitations rules from Takings jurisprudence by holding that Petitioner’s facial substantive due process claim was time-barred, because the statute of limitations commenced from the mere enactment of Respondent’s unconstitutional Right-of-Way Preservation Ordinance (“Ordinance”). The court below held that the event of the Ordinance enactment, by itself, devalued Petitioner’s property. Hillcrest Prop., LLC v. Pasco County, 754 F.3d 1279, 1283 (“We are persuaded by the reasoning expressed by our sister circuit’s . . . . Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. Its property would have decreased 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.”). The Eleventh Circuit’s reliance on a purported “decrease[] in value” is in error. As this Court has explained, devaluation of property is part of the analysis of whether just compensation is due under the Takings Clause, but devaluation does not play a role in substantive due process analysis. Lingle v. Chevron, 544 U.S. 528 (2005).
Finally, in cases where lower courts have found that the statute of limitations commences from the enactment of a law, the injury sustained by the plaintiff was fully effectuated by the enactment of the statute. Such an injury did not occur here.
Br. at 5-7.
We've been following this case, and will continue to do so.
