United States: What Is Done Is Done – And Cannot Be Undone

Lady Macbeth tells her troubled husband, "What is done is done" and later says to herself "and cannot be undone." This is the outcome in Hillcrest Property, LLP v. Pasco County, 754 F. 3d 1279 (11th Cir 2014) and apparently the United States Supreme Court accepted it when the Court declined to review Hillcrest on April 21, 2015.

The Case

In 2001, Hillcrest purchased 16.5 acres of property in Pasco County. Four years later, in 2005, Pasco County adopted The Right of Way Preservation Ordinance (the "Ordinance"). Generally, the Ordinance requires dedication of right of way shown on officially adopted maps and tables in order to secure a development permit. The Ordinance contains provisions permitting waivers when the required dedication is not roughly proportional or variances in hardship situations. The burden lies with the landowner to prove entitlement to relief.

Hillcrest submitted a preliminary site plan seeking a development permit in 2006. From 2006 to 2010, Hillcrest, Pasco County and later Florida's Department of Transportation engaged in a series of submittals of site plans, rejection of site plans, and negotiations regarding Hillcrest's dedication of right of way. Ultimately, Hillcrest made the required dedications and its preliminary site plan and construction plan was approved. During this four year process, Hillcrest submitted written reservation of its rights to contest the exaction.

Hillcrest filed its lawsuit in 2010 challenging the exaction road right of way alleging violations of its right to due process, to equal protection, to access to courts and to a jury trial and other state claims. The federal district court entered judgment in favor of Pasco County on all claims except Hillcrest's substantive due process as-applied claim and substantive due process facial claim. For Hillcrest's facial claim, the district court entered summary judgment in favor of Hillcrest and issued a permanent injunction against enforcement of the Ordinance. Pasco County appealed.

The Eleventh Circuit Court of Appeals reversed. The Eleventh Circuit held that a facial substantive due process claim brought pursuit to 42 U.S.C. § 1983 accrues (i.e. the time for bringing the claim begins) on the date the government adopts the law - not when Hillcrest applied for a development approval. To reach this conclusion, the court extends takings law to apply to facial substantive due process claims and followed two cases decided by other federal circuits.

Based upon precedent, the Eleventh Circuit reasoned that statute of limitation for a facial substantive due process claim brought pursuant to 42 U.S.C. § 1983 is the state statute of limitations for personal injury claims. In Florida, the state statute of limitations for personal injury claims is four years. Accordingly, Hillcrest's claim of a facial violation of Substantial Due Process accrued in 2005 and expired in 2009, a year before Hillcrest filed its lawsuit. Thus, under law, "What is done is done" and "cannot be undone."

Hillcrest's as-applied substantive due process claim remains pending in federal district court, and the outcome of the entire case is uncertain.

Observations

In Hillcrest, two courts came to diametrically opposed conclusions. The federal district court concluded that the period for bringing a facial substantive due process claim began when the Ordinance was applied to Hillcrest – when Hillcrest applied for a development permit in 2006. On the other hand, the Eleventh Circuit reasoned that Hillcrest's injury in a facial claim occurred when the Ordinance was adopted in 2005 and became applicable to Hillcrest's property.

Rules of statutes of limitations should be clear, but for land use controversies, statutes of limitations are complex, uncertain and evolving. Litigants tend to focus the substantive elements of claims and available evidence. Frequently, matters like statutes of limitation and appropriate remedies are considered too late, if at all.

Of course, Hillcrest faced a practical dilemma. Hillcrest would have had to sued Pasco County by 2009 to preserve its facial substantive due process claim - at the time Hillcrest was seeking a permit. On the other hand, there were many other actors making important decisions who did not challenge the Ordinance. A judgment finding that the Ordinance was, on its face, unenforceable unsettles transactions and occurrences well beyond Hillcrest's property and development plan. Perhaps, in that situation what is done is done and cannot be undone.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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