As a law providing new building rights to the Florida Keys remains at a standstill amid legal challenges, the city of Marathon will need to look in every last corner for remaining units to dole out and avoid courtroom battles of its own.
In late June, Gov. Ron DeSantis signed Senate Bill 180, containing a last-minute addition that allowed for up to 900 new building rights throughout the Keys over a minimum 10-year distribution period. The new units are reserved exclusively for one right per vacant, buildable parcel, prioritizing owner-occupied homes, affordable housing and workforce housing, the bill states, and must be split among the Keys’ jurisdictions based on the number of vacant buildable lots in each jurisdiction.
Such an addition was made possible by increasing the Keys’ legally-mandated hurricane evacuation clearance time from 24 to 24.5 hours – a change that would allow re-run evacuation models from the Florida Department of Commerce (FloridaCommerce) to dictate the exact number of new rights throughout the island chain.
In late September, more than two dozen local governments filed a lawsuit in Florida’s Second Judicial Circuit challenging portions of Senate Bill 180, which primarily revolves around disaster recovery. While unrelated to the special carve-out for Keys building rights, the lawsuit seeks to block portions of the bill that prevent local governments from applying “more restrictive or burdensome” land-use and building permit laws after a hurricane than those in place before the storm.
The law applies in counties within the Federal Disaster Declaration for recent hurricanes like Debby, Helene and Milton – and it’s retroactively effective from August 2024 through October 2027.
“With SB 180, the Legislature has sabotaged its own efforts to create a safer, more sustainable and more affordable future for Floridians,” said a Sept. 18 letter written by 41 Florida environmental organizations to state lawmakers. Four Keys-based organizations – Florida Bay Forever, the Islamorada Community Alliance, Last Stand of the Florida Keys and the Lower Keys Guides Association – signed on to the letter.
Opposition to the new law hasn’t yet included the Keys’ new building rights. But in the last three months, Marathon Planning Director Brian Shea told the Weekly, the city has yet to receive any updates on distribution of the 900 new units. Now, Marathon will scrape the bottom of the metaphorical barrel to stave off costly takings lawsuits if owners of buildable properties are denied the ability to do so.
Over the last year, the city has slowed its biannual award of building rights to five rights per six months – two unrestricted market-rate units, two owner-occupied rights for exclusive use as primary residences, and one deed-restricted affordable right. That process continued this September, as the city council approved another five-unit distribution.
But as Shea confirmed to the Weekly, Marathon is out of standard building rights to award through the city’s Building Permit Allocation System (BPAS), and anything further will come from unconventional sources.
Six units remain in the city’s stock of administrative relief allocations, used at the city council’s discretion to award building rights in special circumstances.
Beyond that, Shea said, the city will look to take back and redistribute 59 remaining rights already awarded, but not used, from a pool of 307 early-evacuation units reserved exclusively for workforce affordable housing.
A final four units are available via the city’s Voluntary Home Buyout program, used until earlier this year via a state grant agreement to purchase homes repeatedly damaged by hurricanes. While the building rights formerly assigned to these homes may be given out through BPAS, they must be treated as Transferable Building Rights (TBRs), subject to their own set of unique restrictions.
Last month, the city council instructed Shea to explore options for further stemming Marathon’s award of building rights to a trickle – potentially as few as two or three building rights every six months. Per Marathon’s comprehensive plan, at least 20% of awarded units must be reserved for affordable housing, meaning that in order to give out a market-rate unit, the city must pair it with at least one affordable right. The next award is scheduled for approval in January 2026, with distribution in March.
Speaking to the Weekly on Oct. 1, state Rep. Jim Mooney said he believed new models had already been run by FloridaCommerce to arrive at the 900-unit award penned in SB 180. But beyond that, no timeline was guaranteed for the distribution of the units, especially as other Keys jurisdictions still have existing units to give out.
“I would assume sooner than later at this point,” he said. “But again, I think they may not come out in one big giant batch. (The Keys) need to use what they have first – that was always on the table by the governor’s office and (FloridaCommerce).”
