A landmark lawsuit that could shape the future of takings cases in the Keys may head all the way to the U. S. Supreme Court, if a petition by the city of Marathon is successful.
On Dec. 5, the Florida Supreme Court declined to review what has become known as “the Shands case,” a nearly 20-year lawsuit over a small uninhabited island off of Marathon’s gulf shoreline.
In 1956, Dr. R.E. Shands purchased the island for $20,500, hoping to eventually establish a vacation destination for his family. When he bought the 7.9-acre property, its zoning allowed construction of one home per acre.
But after Shands passed away in 1963, giving ownership of the island to his wife and later her four children, the island was later downzoned to a “Conservation Offshore Island,” allowing just one home per 10 acres or use of the land for camping and beekeeping.
Those changes were later adopted by Marathon when the city incorporated in 1999, and when the Shandses applied for a dock permit five years later, the request was denied, with the city instead offering Transferable Development Rights (TDRs) for sale or use elsewhere if the family would publicly dedicate the land.
The island would soon become one of the Keys’ most publicized takings cases – triggered when owners of theoretically buildable land are denied the opportunity to do so – and a benchmark for future litigation as the island chain continues to run out of both vacant land and building rights.
In February, an opinion from Florida’s Third District Court of Appeals sided with the Shandses, agreeing that “allowing the government to avoid a categorical, as-applied takings claim by awarding TDRs is constitutionally infirm, and here, the downzoning barred (the Shandses) from improving or developing Shands Key in any manner.” That same month, the Marathon City Council elected to escalate the case to the Florida Supreme Court, which last week declined to accept jurisdiction in the matter.
“We’re thrilled that the Third District opinion will stay in place,” attorney Jeremy Talcott of the Pacific Legal Foundation, which represents the Shandses, told the Weekly by phone. “It’s one of the stronger property rights opinions that has come out, certainly in Florida, but also nationwide. For the Shands family, this is the culmination of (waiting) decades to do anything with their own private property.”
Receiving the new blow the previous Friday, the city council on Dec. 9 chose to pursue escalation to the U.S. Supreme Court within the next 90 days for a case that could set a benchmark for hundreds of offshore islands and vacant lots in the Keys.
“Marathon has a few islands that may be impacted by this decision, and the county has far more,” Marathon City Attorney Steve Williams told the council Tuesday night, joined by Monroe County Attorney Bob Shillinger. “The Third District Court opinion still, in my mind, creates new law that should be addressed by an appellate court.” Williams later declined to comment further on the pending litigation.
Should the current decision stand, Marathon’s taxpayers could be forced to foot a hefty portion of the bill for the island and attorneys’ fees, following a separate trial to determine its value and just compensation for the Shandses. And while the final number is far from determined, the value of offshore land, if developable, was already well into seven figures when the case began.
“This is what gets lost when people talk about these various environmental or other considerations like hurricane evacuation plans,” said Talcott. “If they’re for the good of the public as a whole, it’s just simply unfair to put the entire burden on individual landowners. … These systems like TBRs and ROGO points aren’t a way to avoid liability.”
