Sunday, March 8, 2015

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

I've written about our petition to the U.S. Supreme Court beforeHillcrest 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.