FL Appellate Court Enters Partial Summary Judgment for a Regulatory Taking

This post was authored by Lisa Prainito, Touro University Jacob D. Fuchsberg Touro Law Center

In the 1950s, Dr. Shands acquired Shands Key, an almost 15-acre offshore island in the Florida Keys. Upon his death in 1963, title to the island passed to his wife. In 1985, she conveyed title to their children, the appellants (the “Shands”). In 1986, Monroe County changed Shands Key’s zoning status from “General Use” to “Conservation Offshore Island.” In 1999, the City of Marathon (the “City”), appellee, incorporated and adopted Monroe County’s comprehensive land use plan. In 2005, the City adopted the City Comprehensive Plan; the land use and zoning designations of Shands Key remained unchanged, allowing the property to be used solely for beekeeping or personal camping.

In 2004, the Shands filed an application for a dock permit to increase island access. It was denied due to the City’s prohibition on development in areas with known threatened or endangered species. The Shands then filed a Beneficial Use Determination (BUD) application. The BUD hearing found that the Shands had reasonable economic expectations to build a family residence on the Island and recommended that the City grant a building permit for a single-family home or purchase the property for a mutually agreeable sum. Thereafter, the City Council held a hearing on the matter, rejected the BUD’s recommendation and denied the application. The Shands filed a Fifth Amendment action against the City, and then sought partial summary judgment claiming that the City’s acts resulted in an as-applied regulatory taking of their property without just compensation that deprived them of all economically beneficial use of their property.

The Takings Clause of the Fifth Amendment states: “[N]or shall private property be taken for public use, without just compensation.” The Court explained that the U.S. Supreme Court has reasoned that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Further, in Lucas v. South Carolina Coastal Council, the Court defined “total” takings as the “relatively rare situations where the government has deprived a landowner of all economically beneficial uses.” Therefore, “when the owner of real property has been called upon to sacrifice alleconomically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” As a result, if the government enacts a zoning ordinance requiring a landowner to leave his real estate as open space, that regulation will deprive of all viable economic use in his land. Under these circumstances, such a regulation would constitute a taking of private property requiring payment of just compensation

Further, while a per se facial claim, or a total facial claim, occurs when a statute constitutes a taking, a per se as-applied claim arises where “the particular impact of government action on a specific piece of property requires the payment of just compensation.” Here, Appellants established that the regulation deprived them of any use of their property, other than for beekeeping or personal camping. With Shands’ economic expectations, the City’s denial of the BUD application is compensable as-applied taking under state and federal law.

Accordingly, the court entered partial summary judgement in favor of the Shands, and reversed and remanded the matter to the trial court to vacate the final judgment.

Shands v. City of Marathon, 2023 WL 3214154 (FL App 5/3/2023)