Here’s the latest in a case we’ve been following (because it is a product of our shop: we represent the property owners/plaintiffs).

In this Order, the Florida Supreme Court declined to exercise jurisdiction to review the Third District Court of Appeals en banc opinion in Shands v. City of Marathon. So that decision stands.

This is the case in which the Shands Family, the owners of Shands Key — a small island in the City of Marathon (about 1/2 way down the Overseas Highway in the Florida Keys) — asserted that the City’s downzoning their property from a density that allowed residential development to a density that doesn’t (Shands Key is below the minimum lot size under the downzoning), is a Lucas taking.

The court of appeal rejected the City’s claim that beekeeping and overnight camping were possible uses of the property under the downzoning, thus exempting it from Lucas analysis. The court concluded that that the City didn’t submit any evidence to rebut evidence that these use are not “economically beneficial” uses.

The court also rejected the City’s argument that the downzoning still left the Shands Family with some use of their property because they could have sold it to a third party for token value. The City asserted that an owner of other, developable, property in Marathon might scoop it up so that this owner could donate the property to the City in return for a chit to move up in the city’s development queue. The court of appeal held that the availability of transferable development rights play no part in the takings analysis, and only are considered in the just compensation calculus.

This case has been bouncing around the Florida courts for over a decade. The trial court twice dismissed the complaint, and twice the Shands Family appealed and got the dismissal reversed. On this third go round, the trial court denied the Shands Family’s motion for summary judgment on the Lucas claim, and after a bench trial in Key West in 2021, held the City’s downzoning did not effect a taking under the Penn Central theory.

The Shands Family appealed, and challenged both the pretrial denial of Lucas summary judgment, and the adverse Penn Central trial verdict.

The court of appeals didn’t simply vacate the judgment, but reversed it. It held that the trial court should not have denied the Shands’ pretrial Lucas motion for summary judgment. The appeals court entered summary judgment on liability, and remanded the case to the trial court for a determination of just compensation. The City sought en banc review, and the court of appeal withdrew the panel opinion, and substituted an opinion for the entire court that didn’t change the outcome.

Check out this post for the highlights of the en banc court of appeal’s decision.

The City sought discretionary review in the Florida Supreme Court, which, after briefing, declined to exercise jurisdiction.

Stay tuned. In the meantime, check out this story, Alex Rickert, “Florida Supreme Court Decision Could Mean Big Payouts for a Marathon Private Island,” Keys Weekly (Dec. 11, 2025)

Order Declining Jurisdiction, City of Marathon v. Shands, No. SC2025-0833 (Fla. Dec. 5, 2025)