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Pasco County officials will fight a federal judge's ruling that essentially called a local ordinance an end-run around eminent domain laws.
U.S. District Court Judge Steven Merryday, in an April 12 decision, calls Pasco County's right-of-way ordinance “a most uncommon regulatory regime.” The county requires property owners to donate land if it's in what officials say will be a high-traffic area, in return for permits to develop the property. (See Business Observer, April 26)
But Merryday, in a case that pitted developers Mike Kass and George Karpay against the county, wrote the “ordinance is an unmistakable, abusive, and coercive misapplication of governmental power, perpetrated to cynically evade the Constitution.”
Merryday issued a permanent injunction against Pasco County May 21 for its actions. The injunction, in theory, prevents Pasco County from enforcing the ordinance against other developers because Merryday ruled it unconstitutional.
But Pasco County will appeal the ruling on two legal fronts. The county intends to file a motion to stay the injunction, and it will also appeal Merryday's ruling to the 11th Circuit Court of Appeals.
Pasco County Chief Assistant County Attorney David Goldstein, in a May 28 email to the Business Observer, says there are both technical legal reasons and factual reasons for the appeals. Goldstein sent the email in response to questions about how the county would address Merryday's latest ruling.
Goldstein, for one, says the county has a “variance, waiver and appeal process in the ordinance,” which prevents it from being unconstitutional. The county also claims a statute of limitations has expired for the developers. Goldstein, further, in a previous email, says “conditioning development approval on the dedication of right of way is constitutional, and has been upheld by the U.S. Supreme Court. It's a common practice for most local governments in Florida.”
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