Hillcrest Property, LLP v. Pasco County - SCOTUS Brief in Opposition

Pasco County has filed its brief in opposition in Hillcrest Property, LLP v. Pasco County.

You might recall that this case has some Due Process issues that sound awfully familiar to the exactions reviewed by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013). After the district court struck down an exactions ordinance as unconstitutional for violating Substantive Due Process, the Eleventh Circuit reversed on statute of limitations grounds. Hillcrest Property, LLP filed a petition for certiorari to the U.S. Supreme Court asking whether local governments can have their unconstitutional ordinances immunized from challenge by mere passage of time. The petition has garnered a lot of attention, including an amici brief by the National Association of Home Builders and others.

Here's the County's summary of its arguments:

This Court should deny Hillcrest’s petition for certiorari because the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial substantive due process claim against the Ordinance neither conflicts with this Court’s decisions nor with decisions from other circuit courts of appeals nor with a state court of last resort. Moreover, Hillcrest below never raised and the magistrate judge, the district court and the Eleventh Circuit never considered the key components of Hillcrest’s petition, to wit, 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Finally, Hillcrest’s and the amici’s extended parade of horribles stemming from the Eleventh Circuit’s decision is grossly exaggerated, if not completely wrong. 

Hillcrest’s petition is saturated with references to 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Indeed, the second of the two questions Hillcrest presents for review involves only one issue: “whether the federal Continuing Violation Doctrine” applies. Hillcrest, however, never raised Section 1988 or any “Continuing Violation Doctrine” in the district court or in the Eleventh Circuit. Neither the magistrate judge nor the district court judge nor the Eleventh Circuit in their respective recommendation and decisions mentioned Section 1988 or any “Continuing Violation Doctrine.” This Court almost never considers issues, such as Section 1988 and any “Continuing Violation Doctrine” here, which were neither raised nor decided below. 

The other question which Hillcrest presents, “[w]hether a state statute of limitations should apply to a claim . . . seeking to enjoin enforcement of a county ordinance” claimed to be facially unconstitutional, asks this Court to jettison well-established principles from this Court and from the circuit courts of appeals. Federal courts have consistently applied state statutes of limitations against facial claims against ordinances and statutes, at least where defendants, such as the County here, raised the statute of limitations, at least outside the First Amendment and race contexts, and at least where, as the Eleventh Circuit found here, the “injury should have been apparent to Hillcrest upon the Ordinance’s passage” (Appendix 9). Moreover, there is no need to discard well-established principles here: Hillcrest’s as-applied substantive due process claim remains pending and Hillcrest may pursue damages and injunctive relief in connection with its as-applied claim. 

Hillcrest and the amici have peppered their petition and brief, respectively, with fears that the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial claim would effectively “immunize” an ordinance or statute from constitutional challenge. What Hillcrest and the amici forget is that, while Hillcrest’s facial substantive due process claim against the Ordinance has wound its way through the Eleventh Circuit up to this Court, Hillcrest’s as-applied substantive due process claim against the Ordinance remains to be tried in district court. Moreover, circuit courts of appeals have consistently held that the bar of a statute of limitations against a facial claim against an ordinance or statute does not bar an as-applied claim against the ordinance or statute, on which the statute of limitations only begins to run once the ordinance or statute is “applied.” 

Hillcrest also has suggested that it would be unfair to bar its facial substantive due process claim because the statute of limitations could run prior to a landowner being aware that it had, or should have, a claim against the Ordinance. What Hillcrest overlooks is that the Eleventh Circuit held that the four year statute of limitations expired on Hillcrest’s facial substantive due process claim on November 22, 2009, four years from the enactment of the Ordinance on November 22, 2005. Hillcrest had applied for preliminary site plan approval on December 18, 2006, almost three years prior to November 22, 2009, and the County definitively “applied” the Ordinance against Hillcrest at least by August 23, 2007, two years, three months prior to November 22, 2009. Thus, even if Hillcrest were unaware of the Ordinance (or its impacts) prior to August 23, 2007, Hillcrest had two years three months to bring its facial substantive due process claim against the Ordinance within the four-year period the Eleventh Circuit applied. Hillcrest, however, did not sue prior to April 7, 2010, more than two years seven months after the Ordinance was definitively “applied” to Hillcrest and almost six months after the four-year statute of limitations on facial claims had expired.

Look for the reply soon. In the meantime, check out Robert Thomas's post on the amici brief.

New SCOTUS Amicus Brief in Hillcrest: Landowner and Development Groups Support Landowner

I've written about our petition to the U.S. Supreme Court before, Hillcrest Property, LLP v. Pasco County, No. 14-864. At its core, the petition asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners, so that the statute of limitations runs out. That is, does a local government have a right to keep enforcing an unconstitutional law that is on its books, just by the passage of time?

We recently learned that a number of organizations focused on advancing the interests of landowners and developers filed an amicus brief in support of the landowner in this case, Hillcrest Property, LLP.  The National Association of Home Builders, the National Association of Realtors, the National Federation of Independent Small Businesses, the International Council of Shopping Centers, the National Multifamily Housing Council, and the Florida Home Builders all signed onto the brief, explaining:

What unites amici in this single brief is the fundamental belief in protecting the rights of private property owners, particularly against extortive and unconstitutional government regulation. Amici have a particular interest in this case, because the Eleventh Circuit Court of Appeals’ decision insulates the Respondent’s unconstitutional law from a facial substantive due process challenge. This decision now provides local government with an incentive to freely pursue constitutional mischief by enacting an unconstitutional law, and then waiting until the statute of limitations passes before enforcing it. Amici’s members, many of whom are small business owners, will now have to expend limited financial resources to bring a premature facial substantive due process claim, only to find out that their claim has no opportunity to be heard. Amici seek clarification that this Court’s precedents prevents such an outcome.

Here's the summary of their argument:

The Eleventh Circuit erred by creating a blanket rule of law that the mere enactment of an ordinance always commences a statute of limitations for a facial substantive due process claim. Such a rule creates an untenable scenario since property owners will often lack Article III standing to bring a claim within the time allowed under a statute of limitations, thereby effectively shutting the courthouse door. In cases where courts have found that the enactment of a law starts the statute of limitations clock, there have been concrete and particularized injuries to the plaintiffs. 

To uphold the Eleventh Circuit’s decision will waste precious judicial resources by requiring property owners to prematurely initiate lawsuits. At the same time, many of the amici members are small businesses, and are unable to mount a long and costly legal challenge before suffering a concrete injury. 

Further, this is not a Fifth Amendment Takings Clause case. Yet, the Eleventh Circuit incorrectly utilized statute of limitations rules from Takings jurisprudence by holding that Petitioner’s facial substantive due process claim was time-barred, because the statute of limitations commenced from themere enactment of Respondent’s unconstitutional Right-of-Way Preservation Ordinance (“Ordinance”). The court below held that the event of the Ordinance enactment, by itself, devalued Petitioner’s property. Hillcrest Prop., LLC v. Pasco County, 754 F.3d 1279, 1283 (“We are persuaded by the reasoning expressed by our sister circuit’s . . . . Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. Its property would have decreased in value at that time because any current or future development plans would have been subject to the Ordinance’s requirement that, in exchange for granting a commercial development permit, Hillcrest would have to deed part of the land to the county without payment for the acquisition.”). The Eleventh Circuit’s reliance on a purported “decrease[] in value” is in error. As this Court has explained, devaluation of property is part of the analysis of whether just compensation is due under the Takings Clause, but devaluation does not play a role in substantive due process analysis. Lingle v. Chevron, 544 U.S. 528 (2005). 

Finally, in cases where lower courts have found that the statute of limitations commences from the enactment of a law, the injury sustained by the plaintiff was fully effectuated by the enactment of the statute. Such an injury did not occur here.

As usual where yours truly is on the brief, I leave the commentary to others. There's an article over at Law 360 and an announcement by the Florida Home Builders Association.