When he ruled Pasco County’s right-of-way ordinance was unconstitutional, U.S. District Judge Steven Merryday said it “cannot stand.”
Merryday made it official this week, issuing a permanent injunction order that prohibits the county from continuing to enforce the ordinance it used for seven years to demand free road right-of-way in exchange for development and zoning rights.
Merryday called it an “illegal land grab” and said the ordinance violated property owners’ due process rights guaranteed by the Constitution.
Chief Assistant County Attorney David Goldstein said the injunction relates to sections of the ordinance that require right-of-way dedications and the waiver process. “The court did not invalidate the other transportation corridor requirements, such as the setback requirements,” he wrote in an email to a reporter.
Pasco County filed a notice Tuesday that it will appeal the ruling and the injunction to the Atlanta-based 11th U.S. Circuit Court of Appeals. Goldstein said the county also would file a motion to stay the injunction pending the appeal.
“We do not intend to enforce the enjoined sections of the code while the injunction is in effect,” he wrote.
If the county loses the appeal, it could face hundreds of claims — or a class action lawsuit — from property owners and developers who were required to donate land to the county or Florida Department of Transportation as a condition for a rezoning or building permit.
“This is important because the county staff was continuing to enforce the ordinance even after the judge found it unconstitutional,” said Mike Kass, an attorney and partner in Hillcrest Preserve.
Kass and his business-partner, George Karpay, sued the county when officials approved their site plan for a shopping center, but only on the condition they donate 140 feet of right-of-way for the widening of State Road 52. Karpay died in April, a few days before Merryday issued his ruling.
Kass said Merryday’s rulings invalidate the condition on Hillcrest’s site plan.
“We now have the ground back by the judge,” Kass said. “The more they fight they’re just increasing their potential liability.”