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...