Earlier this month, Everglades Law Center (ELC) submitted an amicus curiae (“friend of the court”) brief to the United States Supreme Court in support of the City of Marathon’s effort to preserve local governments’ ability to enact and enforce responsible land use regulations that protect environmentally sensitive lands.
Our brief was filed on behalf of Audubon Western Everglades, Conservancy of Southwest Florida, Izaak Walton League of America Florida Keys Chapter, and Tropical Audubon Society to support Marathon’s petition for certiorari requesting review of a Florida state appellate court decision. ELC’s brief joined three other amicus groups that submitted briefs in support of the City of Marathon’s position, urging the Court to review a 2025 decision by Florida’s Third District Court of Appeal in Shands v. City of Marathon. The Third District’s ruling, if adopted broadly, could significantly weaken conservation-based land use planning tools in Florida and beyond.
What’s at Stake?
The case stemmed from a long-running dispute between property owners and Marathon regarding zoning regulations designed to limit development in environmentally sensitive areas. The Shands alleged Marathon’s zoning regulations so infringed on their ability to use their property that the city was required to compensate them for a “regulatory taking” under the Fifth Amendment of the U.S. Constitution, which prohibits governments from taking private property without providing owners with fair compensation.
Marathon maintained that no regulatory taking had occurred because the property owners retained economically beneficial use of their property through substantial market value, in part through transferable development right (TDR) program credits. TDR programs are land use planning tools that allow for the transfer of development potential from one area to another. Local governments use these programs to encourage new development in areas targeted for growth, while discouraging development in conservation areas, helping communities balance environmental protection with economic development.
A Significant Departure from Established Law
In a break from decades of state and federal precedent, Florida’s Third District Court of Appeal ruled in favor of the property owners, holding that the land use regulations amounted to a regulatory taking. In reaching this conclusion, the Third District did not apply the established test for regulatory takings, instead carving out a new exception to the usual test.
The Third District concluded that the relevant question under the 1992 Supreme Court case Lucas v. South Carolina Coastal Council that provided an exception to the usual balancing test is whether a property retains any economically viable use, not whether it retains economic value. It defined “use” uniquely narrowly, limiting it to uses that “flow from cultivating or developing the property in the traditional framework of ownership”. The court further held that value generated by TDR credits does not fall within this definition of “use”, and therefore should not be considered when determining whether a regulation deprives a property owner of all economically beneficial use.
Under this reasoning, the court found that Marathon’s regulations constituted a taking even though the property retained an estimated $147,000 in market value due in part to its TDR credits.
Why This Matters
The Third District’s interpretation threatens the effectiveness of TDR programs and other conservation regulations throughout Florida and across the country.
For decades, local governments have relied on regulatory tools like conservation zoning, development restrictions, and TDR programs to protect wetlands, wildlife habitat, coastal resources, and other environmentally significant lands. These tools are becoming increasingly essential to meet resiliency goals, as communities seek to promote responsible development in safe, appropriate areas, and direct it away from areas at risk of sea level rise, flooding, and wildfire.
If other courts adopt the Third District’s reasoning, local governments could face increased litigation risks and potentially substantial compensation claims whenever conservation regulations limit development opportunities. Such a precedent could discourage communities from implementing the many regulatory land use protections that conserve natural resources and safeguard communities.
Everglades Law Center’s Continued Advocacy
ELC first became involved in the case during the City’s 2025 appeal to the Florida Supreme Court, representing the same four environmental organizations and filing a notice of intent to submit an amicus curiae brief. In December 2025, however, the Florida Supreme Court denied discretionary review, paving the way for the City’s appeal to the U.S. Supreme Court in May 2026.
Supreme Court Declines Review
Despite the significant conflict between the Third District’s ruling and longstanding regulatory takings precedent, the U.S. Supreme Court denied the City of Marathon’s petition for certiorari on June 8, 2026.
While the Court’s decision leaves the Third District’s ruling in place, Everglades Law Center remains committed to defending sound land use planning, conservation regulations, and the ability of local governments to protect natural resources for future generations.
We are proud to stand alongside our environmental partners in advancing these critical issues and will continue working to safeguard the legal tools that make conservation possible.
Read the full text of our brief below.
Read Law360’s coverage of the City’s petition here.