Hillcrest Prop., LLC v. Pasco Cnty.

• Decision Date: 18 June 2014
• Docket Number: No. 13–12383.,13–12383.
• Citation: 754 F.3d 1279
• Parties: HILLCREST PROPERTY, LLC, Plaintiff–Appellee, v. PASCO COUNTY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

754 F.3d 1279

HILLCREST PROPERTY, LLC, Plaintiff–Appellee,

v.PASCO COUNTY, Defendant–Appellant.

No. 13–12383.

United States Court of Appeals, Eleventh Circuit.

June 18, 2014.

David Smolker, Jacob T. Cremer, Ethan J. Loeb, Smolker Bartlett Schlosser Loeb & Hinds, PA, Kristin Marie Tolbert, Attorney at Law, Tampa, FL, for Plaintiff–Appellee.

Donald Edward Hemke, Herbert Raymond Allen, II, April Justus Bristow, Carlton Fields Jorden Burt, PA, Tampa, FL, Nicki H. Spirtos, Jeffrey N. Steinsnyder, New Port Richey, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:10–cv–00819–SDM–TBM.

Before TJOFLAT, FAY and ALARCÓN,^* Circuit Judges.

ALARCÓN, Circuit Judge:

In this civil rights action, brought by Hillcrest Property, LLC (“Hillcrest”) pursuant to 42 U.S.C. § 1983, Pasco County appeals from the District Court's decision granting a partial summary judgment on Hillcrest's motion and issuing a permanent injunction against enforcement of the Right–of–Way Preservation Ordinance (“Ordinance”). The District Court held that the Ordinance facially violates substantive due process under the Fourteenth Amendment, and that this claim was not barred by the statute of limitations. It also denied Pasco County's motion for summary judgment on Hillcrest's as-applied substantive due process claim. No final judgment has been entered in this matter because Hillcrest's as-applied claim is still pending before the District Court. We have jurisdiction over the District Court's interlocutory order granting a permanent injunction pursuant to 28 U.S.C. § 1292(a)(1). We also have pendent jurisdiction over the District Court's order granting Hillcrest's motion for partial summary judgment based on its claim that the Ordinance is a facial substantive due process violation. See Bayshore Ford Trucks Sales, Inc. v. Ford Motor Co. (In re Bayshore Ford Trucks Sales, Inc.), 471 F.3d 1233, 1260 (11th Cir.2006) (holding that federal courts have pendent appellate jurisdiction over an “otherwise nonappealable interlocutory order” if it is “ ‘inextricably intertwined’ with or ‘necessary to ensure the meaningful review’ of an injunctive order.” (quoting Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir.2000))). We vacate the permanent injunction and summary judgment on Hillcrest's facial challenge because we are persuaded that the statute of limitations began running on the date the Ordinance was enacted.

I

The Pasco County Board of County Commissioners (“Commissioners”) enacted the Right–of–Way Preservation Ordinance on November 22, 2005. It is part of a comprehensive plan to expand public highways in the county by 2025. (Doc. No. 36, Exh. E.) One of the highways set for expansion within this plan is State Road 52 (“SR 52”). (Doc. No. 36, Exhs.B–D.) The Ordinance requires landowners whose property encroaches on SR 52 to convey in fee simple a portion of their property as a condition for receiving a development permit from the County. (ER 125; Pasco County Land Development Code § 901.2(H).) The Ordinance also contains a provision allowing developers to seek a dedication waiver upon a showing that the “amount of land required to be dedicated to the County ... exceeds the amount of land that is roughly proportional to the transportation impacts of the proposed development site.” (ER 126–30; Pasco County Land Development Code § 901.2(I).)

Hillcrest, a property development company, has owned property encroaching on SR 52 since April 2001. (Doc. No. 36, Exh. A.) On October 21, 2003, the Commissioners approved Hillcrest's request to modify the property's zoning conditions to allow for its commercial development. (ER 28; Doc. No. 96 at 2; Doc. No. 77–2 at 1.) On December 18, 2006, Hillcrest submitted a preliminary site plan seeking a development permit from Pasco County to build a commercial retail shopping center. (ER 34; Doc. No. 96 at 4; Doc. 77–4 at 1.) Pasco County informed Hillcrest on February 3, 2007, that it would be required to dedicate a portion of its property fronting SR 52 as a condition for approval of the permit. (ER 35; Doc. No. 77–1 at 3; Doc. 77–4 at 1–2.) Negotiations between the parties to reach a settlement agreement failed. (Doc. No. 36 at 12–16.) Hillcrest filed suit in the District Court on April 7, 2010. (Doc. No. 1.)

II

Pasco County contends that the District Court erred in holding that Hillcrest's facial due process claim did not accrue on November 22, 2005, the date the Ordinance was enacted. Instead, the District Court held that Hillcrest's facial claim was timely filed within the four-year statute of limitations because it did not begin to run until Pasco County subjected Hillcrest to the Ordinance, either on December 18, 2006, when Hillcrest applied for site plan approval, or on February 3, 2007, when Pasco County denied the site plan. (ER 186.)

“The decision to grant or deny an injunction is reviewed for clear abuse of discretion, but underlying questions of law are reviewed de novo.” FEC v. Reform Party of the U.S., 479 F.3d 1302, 1306 (11th Cir.2007). This Court reviews de novo a district court's grant of summary judgment. Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1377 (11th Cir.1994).

Section 1983 claims are subject to a forum state's statute of limitations for personal injury claims. Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir.1999). In Florida, a personal injury claim must be filed within four years. Id. This Court has held that a cause of action under § 1983 does not accrue until “the plaintiffs know or should know ... that they have suffered [an] injury that forms the basis of their complaint.” Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir.2003) (citing Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir.1987)). This Court has yet to determine whether this “know or should know of an injury” accrual rule applies to a facial constitutional challenge to an ordinance or a statute pursuant to § 1983.

Some of our sister circuits, however, have applied this rule to facial substantive due process claims alleging property deprivations. See Action Apartment Ass'n v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1027 (9th Cir.2007) (applying this accrual rule to a facial substantive due process claim challenging a rent control ordinance); Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 520–21 (6th Cir.1997) (applying rule to a facial substantive due process claim challenging a county ordinance that barred through-truck traffic on certain roads). In doing so, both the Sixth and the Ninth Circuit relied heavily upon prior precedent holding that a facial takings claim accrues upon enactment of the statute. We also find this to be an appropriate starting point in our analysis.

The Ninth Circuit distinguished between facial takings claims and other types of facial challenges in Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.1993). The owner of a mobile-home park filed a facial takings claim long after the challenged city ordinance was enacted. Id. He argued that he “should be allowed to bring an action challenging the enactment of a statute as a taking without just compensation at any point.” Id. In rejecting his contention, the Ninth Circuit explained:

This argument misapprehends the differences between a statute that effects a taking and a statute that inflicts some other kind of harm. In other contexts, the harm inflicted by the statute is continuing, or does not occur until the statute is enforced—in other words, until it is applied. In the takings context, the basis of a facial challenge is that the very enactment of the statute has reduced the value of the property or has effected a transfer of a property interest. This is a single harm, measurable and compensable when the statute is passed. Thus, it is not inconsistent to say that different rules adhere in the facial takings context and other contexts.

Id. The Ninth Circuit reasoned in Levald that in the context of a facial takings claim, the harm occurs immediately upon, and because of, the statute's enactment: the property value depreciates and a taking occurs as soon as the statute goes into effect. Id. Thus, the injury necessarily occurs upon the statute's enactment. Id.

The Sixth Circuit subsequently relied upon Levald in determining when the appellant's facial takings and facial substantive due process claims accrued. Kuhnle Bros., Inc., 103 F.3d at 521. In holding that the appellant's facial takings claim was time-barred, it adopted Levald 's reasoning that the injury in a facial takings claim occurs upon the statute's enactment because the enactment of the statute either “ ‘has reduced the value of the property or has effected a transfer of a property interest.’ ” Id. (quoting Levald, Inc., 998 F.2d at 688). The Sixth Circuit concluded that the appellant's “substantive Due Process claim for deprivation of property is time-barred for the same reason.” Id. It reasoned that “[a]ny deprivation of property that [the appellant] suffered was fully effectuated when [the county ordinance] was enacted, and the statute of limitations began to run at that time.” Id. (citing Ocean Acres Ltd. P'ship v. Dare Cnty. Bd. of Health, 707 F.2d 103 (4th Cir.1983)).

The Ninth Circuit has also applied the accrual rule it developed in the facial takings context to substantive due process claims alleging property deprivations. In Action Apartment Association, an association of landlords filed suit in 2004...