NEW PORT RICHEY - Pasco commissioners on Tuesday unanimously rejected a $5.88 million settlement offer in the lawsuit over a road right-of-way ordinance a federal judge said was unconstitutional.
Judge Steven Merryday called the 2005 ordinance, which let the county demand land in exchange for zoning and development rights, an illegal "land grab." The county is appealing Merryday's ruling to the 11th Circuit Court of Appeal.
If the county loses the appeal, it could be facing hundreds of claims - or a class-action lawsuit - from property owners and developers who were required to donate land as a condition for a rezoning or building permit.
Hillcrest Preserve founder Mike Kass and his business-partner, George Karpay, sued the county when officials demanded they donate 140-feet of right-of-way fronting their property on State Road 52 as a condition of approval for a shopping center. They said the right-of-way amounted to 28 percent of their commercial property. Karpay died four days before Merryday issued his ruling.
David Smolker, attorney for Hillcrest Preserve, said the ordinance had already cost his client approximately $10 million in lost profits and legal expenses. In his settlement offer, he noted that "the legal dynamics have been changed by Judge Merryday's rulings" and by recent rulings from the Supreme Court.
"The personal dynamics have also changed," he wrote, citing the appointment of a new county administrator. Kenneth Karpay, the son of the late George Karpay, is also a partner now.
"We believe there is now an opportunity for the parties to make a good faith effort to resolve this matter through settlement."
In exchange for the cash, Hillcrest would dedicate 100 feet of right-of-way to the Florida Department of Transportation, which needs the land to widen S.R. 52 later this year.
Commissioner Kathryn Starkey, the only commissioner to voice reservations about the appeal, was not in the room when the board voted to reject the settlement. But she said she agreed with the decision.
Commissioners amended the ordinance Tuesday to change when and how it can exact right-of-way from a property owner without paying for it.
Chief Assistant County Attorney David Goldstein, who wrote the original ordinance, said that under the new policy, the county would do a rough proportionality calculation before requiring a right-of-way dedication.
In other words, the county would require the right-of-way dedication only if the applicant's project would generate enough traffic to warrant a future road improvement.