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Hillcrest Prop., LLC v. Pasco County

United States Court of Appeals, Eleventh Circuit

June 18, 2014

HILLCREST PROPERTY, LLC, Plaintiff-Appellee,
v.
PASCO COUNTY, 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.

For Hillcrest Property, Llp, Plaintiff - Appellee: David Smolker, Jacob T. Cremer, Ethan J. Loeb, Smolker Bartlett Schlosser Loeb & Hinds, PA, Tampa, FL; Kristin Marie Tolbert, Attorney at Law, Tampa, FL.

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

For Pacific Legal Foundation, National Federation of Independent Business Small Business Legal Center, Amici Curiae: Alan E. DeSerio, Pacific Legal Foundation, Palm Beach Gardens, FL.

Before TJOFLAT, FAY and ALARCÓN,[*] Circuit Judges.

OPINION

Page 1280

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

Page 1281

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. ...


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