National and State Organizations Urge U.S. Supreme Court to Review Violation of Due Process Rights of Smolker Bartlett Client

March 7, 2014—Six national and state organizations have filed an amicus brief urging the U.S. Supreme Court to take up a case involving the due process rights of a Smolker Bartlett client. In Hillcrest Properly, LLP v. Pasco County, No. 14-864, Smolker Bartlett attorneys David Smolker and Jake Cremer have petitioned the U.S. Supreme Court. In the case, a local government adopted an exactions ordinance in 2005 requiring that as a condition of development approval, landowners give, without compensation, parts of their land reserved by the ordinance for future highway construction. In brief, as the firm’s client argued in an amicus brief to the U.S. Supreme Court two years ago, the ordinance adopts an unconstitutional system of exactions. See Koontz v. St. Johns Water River Management District, 133 S. Ct. 2586 (2013). Even so, the Eleventh Circuit Court of Appeals allowed the ordinance to stand.

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 that "[w]hat 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."

Below is the summary of their argument. You can review the brief here.

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....The court below held that the event of the Ordinance enactment, by itself, devalued Petitioner’s property....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.

The attorneys at Smolker, Bartlett, Loeb, Hinds & Schlosser, P.A. practice in areas including environmental and water law, land use, real estate, eminent domain, property rights, public entities, and litigation. The firm's office is located in Suite 2050, 100 N. Tampa Street in downtown Tampa (813-223-3888).

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