Are Florida Right of Way Corridor Preservation Ordinances Unconstitutional? Land Owner Wins First Round in Federal Fight

by Rosa Eckstein Schechter


In Florida land development, how traffic moves through an area is important - and years in advance of any roadway being constructed, there are land planners who work hard to determine where roads (highways, streets, etc.) are going to be needed.  With the 2011 Florida Community Planning Act reforms, governing that land planning rests with local governments, not the State of Florida, and now we are beginning to see more of how the FCPA is working, including Florida Statute 163.3164.

Consider Pasco's Right of Way Corridor Preservation Ordinance

Over in Pasco County, there is an ordinance that has been on the books since 2005, requiring land owners to slice off a part of their tract for the use of the county if that section overlaps the county's map of future roadways.  If the county plans on maybe building a traffic route across that land, be it a small road or a huge highway, then the ordinance requires the landowner to know that official plan and to develop their real estate accordingly.

(To read the Pasco County Strategic Plan, go here to download a .pdf of the 44 page document.)

Of course, the Powers that Be over in Pasco don't want to be considered as power-hungry bureaucrats, scheming ways to take land from citizens under the banner of "public ordinance."  First of all, they've written into the ordinance a couple of ways for land owners to get around the requirement.

First, the 2005 Ordinance does allow land owners to be exceptions to its general rule: under its language, the ordinance allows property owners to seek a variance because in their circumstances, application of the ordinance will result in an unacceptable burden

Even if the burden won't be agregious, land owners are allowed to request that it not apply to their tract if they can show there really isn't going to be enough traffic in the future to merit its application on their land.  (In other words, challenge the land plan's accuracy in their location.)

Why have the Road Expansion Ordinance in the First Place?

Land planners think these things are a good idea and so do a lot of government folk.  By asking land owners in their jurisdiction to allot a part of their acreage to the possibility of a future county roadway coming through it, millions of dollars of taxpayer money is saved.  Why? 

The ordinance, as applied, saves lots of money that would otherwise be used to buy right of ways on land tracts to make room for the new highway.  Right of way purchases can make up a big chunk of the price tag for any new roadway absent these sorts of manuevers.  Impact fees go up, accordingly, or sometimes, if the price is too high, the roads just don't get built. 

And in Pasco, this could be very important since Pasco is seeing lots of real estate development these days.  Things are looking bright over in Pasco County, growth-wise. 

Hillcrest Properties Challenges Pasco County Land Ordinance

However, there are those that argue against this kind of ordinance.  Their position is that these ordinances really ask the landowner to donate a part of his land to the government, without compensation.  That's against the constitution. 

This argument has been successfully made by Hillcrest Properties, as owner of 16 acres of commercial real estate near San Antonio in Pasco County, a tract that is near Interstate 75 on Old Pasco Road. 

Right now, Hillcrest Properties has legally challenged Pasco's Right of Way Corridor Preservation Ordinance in federal court and U.S. Magistrate Thomas B. McCoun III (a Florida native) has ruled in Hillcrest's favor, finding that the Pasco Ordinance is an unlawful attempt to get around eminent domain requirements in violation of the federal constitutional prohibition of the government taking private property without just compensation.

Magistrate McCoun's determination is being reviewed by U.S. District Judge Steven Merryday of the United States District Court for the Middle District of Florida, Tampa Division.


Written by:

Rosa Eckstein Schechter

Eckstein Schechter Law on:

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