Hillcrest Prop., LLP v. Pasco Cnty., 17-14789

• Citation: 915 F.3d 1292
• Decision Date: 13 February 2019
• Docket Number: No. 17-14789,17-14789
• Parties: HILLCREST PROPERTY, LLP, Plaintiff - Appellee, v. PASCO COUNTY, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

915 F.3d 1292

HILLCREST PROPERTY, LLP, Plaintiff - Appellee,

v.PASCO COUNTY, Defendant - Appellant.

No. 17-14789

United States Court of Appeals, Eleventh Circuit.

February 13, 2019

David Smolker, Ethan J. Loeb, Smolker Bartlett Loeb Hinds & Thompson, PA, Tampa, FL, for Plaintiff - Appellee.

Donald Edward Hemke, Herbert Raymond Allen, II, Carlton Fields Jorden Burt, PA, Tampa, FL, Nicki H. Spirtos, Jeffrey N. Steinsnyder, Pasco County Attorney's Office, New Port Richey, FL, for Defendant - Appellant.

Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.

TJOFLAT, Circuit Judge:

The question before us is whether a litigant in this Circuit has a substantive-due-process claim under the Due Process Clause of the Fourteenth Amendment when the alleged conduct is the unlawful application of a land-use ordinance. The answer to that question is a resounding "no"—an answer that this Court delivered in McKinney v. Pate , 20 F.3d 1550 (11th Cir. 1994) (en banc), 24 years ago and has reaffirmed ever since. We held in McKinney that executive action never gives rise to a substantive-due-process claim unless it infringes on a fundamental right. A land-use decision is classic executive, rather than legislative, action—action that, at least here, does not implicate a fundamental right under the Constitution.

I.

We start by reviewing the ordinance at issue. We then discuss the application of that ordinance to Plaintiff Hillcrest Property and the specific events that give rise to this appeal.

A.

Pasco County ("the County") passed Ordinance No. 11-15 ("the Ordinance") "to preserve, protect, and provide for the dedication and/or acquisition of right-of-way and transportation corridors that are necessary to provide future transportation facilities and facility improvements to meet the needs of [projected] growth."¹ Pasco County, Fla., Land Development Code ch. 900, § 901.2(A)(2). The County found that "provision of an adequate transportation network is an essential public service." Id. § 901.2(A)(2). The Ordinance aimed "to protect transportation corridors from encroachment by structures or other development except under special conditions." Id. § 901.2(A)(6). It applies to all development of land that is located on the County’s corridor-preservation map. Id. § 901.2(B)(1).

The corridor-preservation map includes all of the land that the County believes will be required to adequately provide transportation, regardless of who currently owns the land. When an entity seeks a development permit for land that adjoins a transportation corridor, the County, as a "condition of approval," capitalizes on that need by requiring a right-of-way dedication, which is a dedication by the entity to the County of lands "within the development site or expanded development site which are within the transportation corridor." Id. § 901.2(H)(1). The dedications must be "in accordance with the County Real Estate Division requirements and free and clear of all liens and encumbrances." Id. Importantly, the land to be dedicated is "limited to the amount of land needed for the planned transportation improvements."² Id.

The Ordinance contemplates that disputes might arise between the entity and the County and provides for waiver and appeal. An entity that believes that the County’s demanded dedication "exceeds the amount of land that is roughly proportional to the transportation impacts to be generated by the proposed development site" may apply to the development review committee for a "dedication waiver." Id. The procedures for seeking a waiver are largely the same as those for seeking a variance.³ Id. ch. 900, § 901.2(I)(2)(a). In its application for a waiver, the entity must include the appraised value of the development site and expanded development site, both before and after approval of the development;⁴ a traffic-impact study; and a list of transportation-mitigation measures taken or required to be taken. Id.

The committee, upon finding that the "transportation requirement is not roughly proportional to the transportation impacts of the proposed development site or expanded development site" or that "any portion of the land required to be dedicated ... exceeds the amount of land that is roughly proportional to the transportation impacts of the proposed development site or expanded development site," may proceed in one of two ways. Id. § 901.2(I)(4). One, it can authorize compensation for the excess land. Id. Two, if it elects not to authorize compensation, it must not require the entity to dedicate the excess land and must permit it to use that land subject only to other generally applicable zoning restrictions. Id. ; see also id. § 901.2(I)(6).

The entity may appeal the committee’s decision to the Board of County Commissioners. Id. § 901.2(I)(2)(a).

And this brings us to Hillcrest.

B.

Hillcrest Property owns 16.5 acres of undeveloped, commercially zoned land in Pasco County, Florida.

In December 2006, Hillcrest applied to the County to develop its property with a 83,000 square-foot retail shopping center and three commercial spaces. Just over one year later, in February 2007, the County notified Hillcrest that pursuant to the Ordinance, it would require the dedication of 50 feet for the future development of State Road 52 ("the Road") into four lanes.⁵ The property at issue shares a 1,400-foot border with the Road. Just a few months later, in May, the County then advised Hillcrest that a proposed shift in the Road by the Florida Department of Transportation ("FDOT") would require a dedication of an additional 90 feet, bringing the total to 140 feet. The County was to compensate Hillcrest for these additional 90 feet.

In July 2007, Hillcrest submitted a different proposed site plan that had no improvement inside the 140-foot area. In so doing, Hillcrest reserved its rights to object to the dedication of any land without compensation. The County approved the preliminary site plan that August.

In June 2008, after having denied at least three of Hillcrest’s construction plans for the site, the County approved a construction plan but conditioned approval upon reaching an agreement on the dedication. Thereafter, the Magistrate Judge tells us, things get hazy. What is clear is that Hillcrest and the County continued to disagree on matters related to the dedication. And in January 2010, the County supposedly told Hillcrest that it lacked the ability to compensate Hillcrest the amount that it sought in compensation.

Hillcrest did not apply for a waiver or take any action in state court.

This suit ensued. Later in 2010, Hillcrest filed a seventeen-count complaint in the District Court, as amended, alleging violations of both state and federal law. The federal causes of action included claims under the Takings Clause of the Fifth Amendment, as incorporated by the Fourteenth Amendment, and facial and as-applied substantive-due-process claims under the Fourteenth Amendment.⁶

The crux of Hillcrest’s substantive-due-process claim is that the County required the dedication "without ... having first made an individualized determination that the exaction was reasonably related both in nature and extent to the traffic impacts of the proposed development," "without ... having clearly demonstrated a reasonable connection or rational nexus between the need to 4-lane [the Road] and the traffic generated by the development and between the exaction and the benefits accruing to the development," and

without ... having first demonstrated that the need to widen [the Road] to 4-lanes is substantial and demonstrably clear and present, such that it definitely appears that Hillcrest’s proposed development either forthwith or in the demonstrably immediate future will so overburden [the Road] as to require its accelerated improvement, or that the 4-laning of [the Road] is contemplated by the County or FDOT for immediate improvement.

In July 2011, the parties filed cross motions for partial summary judgment on numerous claims. These included motions by Hillcrest on the facial substantive-due-process claim and the County on the as-applied claim. The Magistrate Judge, in March 2012 and upon referral from the District Court, issued a report recommending that the Court grant both motions.

Just over one year later, in April 2013, the District Court granted summary judgment for Hillcrest on the facial claim but denied summary judgment on the as-applied claim (thus declining to follow the Magistrate Judge’s recommendation). Pursuant to that decision, the Court permanently enjoined the County from enforcing the portions of the Ordinance that are in dispute here.

The County appealed. A panel of this Court held that Hillcrest’s facial substantive-due-process claim, which was the basis for the District Court’s judgment, was barred by the statute of limitations. Hillcrest Prop., LLC v. Pasco County , 754 F.3d 1279, 1283 (11th Cir. 2014). We accordingly vacated the District Court’s order but expressed "no view as to the merits of Hillcrest’s pending as-applied substantive due process claim." Id.

The litigation continued. In April 2016, the parties filed cross-motions for summary judgment on Hillcrest’s as-applied substantive-due-process claim. Then, about a year and a half later, the District Court—riding on the back of the Magistrate Judge’s March 2012 Report and Recommendation—granted Hillcrest’s motion. Hillcrest Prop., LLP v. Pasco County , No. 8:10-CV-819-T-23TBM, 2017 WL 4342347, at *1 (M.D. Fla. Sept. 29, 2017).

The District Court summarily concluded that "application of a facially unconstitutional ordinance necessarily establishes a meritorious as-applied due-process claim." Id. at *2. The Court entered an award of $1 in nominal damages in favor of Hillcrest—the only relief that Hillcrest had sought on this claim. Id.

Importantly, the District Court also allowed Hillcrest to move for attorneys’ fees. Id. Indeed, as counsel acknowledged at oral argument, this case is currently about nothing but attorneys’ fees. Let us exp...