August 7, 2013

Just an old-fashioned land grab

By Brian T. Hodges Senior Attorney

Everyone knows that the shortest distance between two points is a straight line.  That must be what the Pasco County (Florida) planning department was thinking when it dreamed up its “Right of Way Preservation Ordinance.”  You see, the county wants to build more roads, but it doesn’t own much of the land where it wants to place the roads.  Land is expensive, so instead of going through the trouble of buying it, the county decided that the current owners should just hand it over.

Here’s how it works.  The county adopts a comprehensive plan in which it identifies the rights-of-way necessary to build future “transportation corridors.”  The county now knows where it wants to put the roads.  The county then passes a right-of-way ordinance, allowing it to take the land the county will need for the planned roads.  People who own property on which the roads will be built are now required to dedicate the “corridor” portions of their properties to the county in exchange for approval of any development permits.  The property owner gets to develop whatever is left of his property after the dedication, and the county gets the right-of-way for free.  What a deal!

Well, it turns out that the county overlooked a serious problem—it doesn’t get to decide whether it should pay for the land or not.  The Fifth Amendment requires payment of just compensation whenever the government acquires private property for public use.  The planning department must have been aware of that, right?  Well, if they didn’t know it before, they know it now, because a federal district court recently struck down the Right of Way Preservation Ordinance in a case called Hillcrest Property, LLP v. Pasco County.  From the opinion:

Pasco County has enacted an ordinance that effects what, in more plain-spoken times, an informed observer would call a “land grab,” the manifest purpose of which is to evade the constitutional requirement for “just compensation,” that is, to grab land for free.  Viewed more microscopically, Pasco County’s Ordinance designs to accost a citizen as the citizen approaches the government to apply for a development permit, designs to withhold from a citizen the development permit unless the citizen yields to an extortionate demand to relinquish the constitutional right of “just compensation,” and designs first and foremost to accumulate — for free — land for which a citizen would otherwise receive just compensation.

The district court has the right idea in the wake of PLF’s recent Supreme Court victory in Koontz v. St. Johns River Water Management District.  As the Koontz Court explained, “Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation.”  Pasco County must pay for the land if it wants to put a road on it, plain and simple.  The county cannot hold permits hostage just because a property owner does not want to give away his land for free.

Apparently convinced that it is not doing anything wrong, the county has appealed the case to the Eleventh Circuit.  The Hillcrest case provides the Court of Appeals with a good opportunity to apply Koontz.  Expect to see more about this case in future posts.

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