COURT GIVES GO-AHEAD TO SHANDS FAMILY’S PROPERTY RIGHTS LAWSUIT AGAINST MARATHON

Marathon, FL; December 31, 2008: Judge Rodney Shands and his family will be allowed to pursue their lawsuit against Marathon for taking their property in violation of the Constitution, after an appellate court today rejected the City’s procedural attempts to derail the case.

Filed by attorneys with Pacific Legal Foundation’s Atlantic Center, the lawsuit charges Marathon with committing an unconstitutional “taking” of private property by prohibiting the Shands from building a home on land that they own – and refusing to compensate them for this loss of the use of their property.

The City alleged that the Shands filed their lawsuit too late, but today the Florida Third District Court of Appeal rejected that procedural argument, and ordered that the Shands be allowed to go back to trial court and have their case heard on the merits.

“For the City to claim that the Shands were ‘too late’ with their lawsuit frankly didn’t pass the laugh test,” said Valerie A. Fernandez, Managing Attorney of Pacific Legal Foundation’s Atlantic Center, who represents the Shands family. “The Shands did everything by the book. They filed an application for reconsideration with the City and went before a city hearing examiner, exactly as Marathon’s procedures specify. The Shands went to court only after the examiner made his ruling – a ruling that sided with the Shands – and the City refused to follow it. They had every reason, and every right, to file a lawsuit at that point – and today, the Court of Appeal agreed.”

The property at issue is Shands Key, owned by Judge Rodney Shands, his sister, and two brothers – who are the children of the late R. E. Shands, purchaser of the property in 1956. The family’s longtime plans to build a home on the island were scuttled in 1986, when land development regulations promulgated by Monroe County eliminated the opportunity to build on the island. The regulations place severe restrictions on new construction in the County. Since the incorporation of the City of Marathon several years ago, the City has continued to enforce these antigrowth rules within its boundaries.

In 2006, the Shands family, represented by PLF attorneys, filed a legal application with the City, asking either that the building ban on the property be lifted or that the Shands family be compensated as required by the United States Constitution.

The hearing examiner, Thomas D. Wright, sided with the Shands. In his memo of facts, law and formal recommendations, he wrote: “I specifically recommend that the City of Marathon either grant a building permit for a single family home on the property ... or, if the property is deemed environmentally desirable, that the property be purchased for the appraised value of $3,000,000.00, which is specifically found to adequately compensate the Applicant for any reasonable investment expectations at the time of the purchase of the property.”

However, the Marathon City Council rejected the hearing examiner’s findings.

Now, the Shands’ constitutional lawsuit will be heard in trial court. “The Shands family has been denied all use of the property, and when that happens, the United States Constitution says government must pay,” said PLF’s Fernandez. “City officials are thumbing their noses not just at the Constitution, but at the hearing examiner’s findings that if they don’t allow the Shands to build, they must pay them $3 million by purchasing the property outright. Now that the lawsuit will be allowed to proceed, we look forward to the courts coming to the same conclusion that the hearing examiner did.”

The case is Shands v. City of Marathon. Today’s decision is available at Pacific Legal Foundation’s Website.

About Pacific Legal Foundation and its Atlantic Center
Pacific Legal Foundation is the oldest and most successful public interest legal organization dedicated to property rights, limited government, and a balanced approach to environmental protection. PLF’s Atlantic Center is headquartered in Stuart, Florida, and litigates throughout the eastern half of the United States.