Earlier, we posted the cert petition in Hillcrest Property, LLP v. Pasco County, No. 12-846 (cert. petition filed Jan. 15, 2015), which asks the Supreme Court to review the Eleventh Circuit's decision throwing out Hillcrest's facial substantive due process challenge to the county's "Right of Way Preservation Ordinance." The ordinance allows the county to land bank for future road corridors by means of an exaction that doesn't come anywhere near to passing muster under Nollan-Dolan-Koontz.
Although the District Court held the ordinance unconstitutional and is "both coercive and confiscatory in nature and constitutionally offensive in both content and operation," the Eleventh Circuit concluded that the mere enactment of the ordinance started the four-year statute of limitations clock running on a facial challenge, and that Hillcrest had waited too long to file its complaint.
Hillcrest's petition asks whether a facial claim is even subject to the statute of limitations, and if so, can the plaintiff wait to bring suit until the ordinance is applied to it. Hillcrest argued it could not have done so until it had been injured by the application of the ordinance (in other words, once it had standing).
Here are the final two cert briefs:
- Brief in Opposition (Pasco County)
- Reply Brief for the Petitioner
- Amici Brief of National Association of Home Builders, the National Association of Realtors, the National Association of Independent Business Small Business Legal Center, et al.
We're not going to detail the arguments in those briefs -- you can read them yourself -- but we did want to add our thoughts on this case since whenever there is talk of facial vs as applied constitutional challenges, our head starts spinning over the nuances in the doctrine. But in our view, the issue doesn't seem that complicated:
- A "facial" challenge to an ordinance is one where the ordinance is universally unconstitutional, i.e., the remedy is that the ordinance is "struck down" (as that term is used in the popular parlance) and is figuratively wiped off the books. In other words, there's no set of circumstances where the ordinance could be applied in a constitutional manner.
- An "as applied" challenge, by contrast, is one where the plaintiff is only claiming that it would be unconstitutional to apply the ordinance to me and the particular circumstances in my case. The remedy in this situation is that the ordinance doesn't apply to me, now, but it may apply to others or in the future and it isn't "struck down."
- But regardless of the claim made or the remedy sought, if the challenge is in federal court, the plaintiff must show Article III standing, and must demonstrate some injury to itself as a result of the ordinance that is different from that of the general public. And we're not sure how that happened in Hillcrest until Hillcrest actually presented development proposal which triggered application of the Right of Way Preservation Ordinance.
- Facial challenges are not an exception to the Article III standing rules. Or is the Eleventh Circuit saying either (a) everyone in Pasco County had standing to challenge the ordinance facially, or (b) developers like Hillcrest at just out of luck if they can't get standing within four years of the date the county adopted the ordinance, and all that Hillcrest can assert after that time is an as-applied challenge?
The petition is scheduled for the Court's April 17, 2015 conference, so we should know shortly thereafter. Stay tuned.
Reply Brief for the Petitioner, Hillcrest Property, LLP v. Pasco Cnty., No. 14-864 (Apr. 1, 2015)
