Hillcrest Property LLP v. Pasco County, 2013 WL1502627 (M.D. Fla.) involved defendant’s “Right of Way Preservation Ordinance” as a means of avoiding payment to landowners through whose property designated existing and future transportation corridors ran. If no development were requested, the County may acquire the property through traditional eminent domain means, but if a development application were filed, the Ordinance requires uncompensated dedication of the land. The county attorney declared that the Ordinance saved millions of dollars annually for the County through this scheme of “voluntary” dedication. Plaintiff challenged the scheme inter alia under the due process and just compensation clauses and state constitutional grounds. A federal magistrate found the Ordinance unconstitutional and recommended issuance of an injunction to a federal judge.
The court said that the challenged Ordinance was adopted to implement the County Comprehensive Plan and allowed interim use by the landowner of the dedicated property until the County needs it. If the landowner believes the rough proportionality of the dedication is excessive, she may apply for a discretionary waiver, but must provide extensive appraisal and other information at her own expense for determination of a County review committee which may pay the differential, grant credits on systems development charges or provide for other waivers of costs of associated improvements, or any combination thereof. A landowner may also apply for a variance from the waiver by showing that the application of that waiver causes a hardship; however, the variance is highly discretionary. Plaintiff owns 16.5 acres of land zoned commercial. Under the challenged Ordinance, there was a 50-foot right-of-way overlap of a future public road along one side of the property for approximately 1400 feet. Plaintiff applied for site plan approval for a shopping center. Defendant demanded the right of way, while the Florida Department of Transportation (“FDOT”) demanded a further 90-foot setback. Plaintiff resubmitted the site plan with the reservation of right objecting to the dedication and setback and did not appeal the grant of the site plan approval with those conditions. Nor did Plaintiff seek a waiver or variance; instead Plaintiff filed this action in Federal District Court. (more…)