Amicus Curiae Brief — City of Marathon, Florida, Petitioner v. Rodney Shands, et al.

Supreme Court briefJun 1, 2026

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No. 25-1251

In the

Supreme Court of the United States

CITY OF MARATHON, FLORIDA,

Petitioner,

RODNEY SHANDS, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Florida Third District Court of A ppeal

BRIEF FOR AMICI CURIAE AUDUBON

WESTERN EVERGLADES, CONSERVANCY

OF SOUTHWEST FLORIDA, TROPICAL

AUDUBON SOCIETY, AND IZAAK WALTON

LEAGUE OF AMERICA FLORIDA KEYS

CHAPTER IN SUPPORT OF PETITIONER,

CITY OF MARATHON

ELIZABETH FATA CARPENTER

Counsel of Record

S. ANSLEY SAMSON

FRANCESCA J. DIJULIO

EVERGLADES LAW CENTER

6815 Biscayne Blvd.

Suite 103 #449

Miami, FL 33138

(786) 496-3309

elizabeth@evergladeslaw.org

Counsel for Amici Curiae

June 1, 2026

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ................................................................ 4

THIS COURT SHOULD RESOLVE THE

LOWER COURTS’ INCONSISTENT

APPLICATION OF LUCAS. ....................................6

II.

THE THIRD DCA’S READING OF THE

LAW RISKS UNDERMINING WELLESTABLISHED LAND USE PLANNING

PRINCIPLES AND REGULATORY

CONSERVATION SCHEMES...............................13

The Third DCA’s reading of Lucas threatens

state and local governments’ ability to regulate

land use and development, and to protect land for

conservation and related public safety goals. ....15

The Third DCA’s reading threatens TDR

programs, which are successful nationwide. .....21

The Third DCA’s reading threatens national

conservation policies and initiatives. .................24

CONCLUSION .......................................................... 29

TABLE OF AUTHORITIES

Cases

Berman v. Parker, 348 U.S. 26 (1954) ......................18

Bridge Aina Le’a, LLC v. State Land Use Comm’n, 950

F.3d 610 (9th Cir. 2020) ........................................... 9

Brown v. Maryland, 25 U.S. 419 (1827) ...................18

City of Sherman v. Wayne, 266 S.W.3d 34 (Tex. App.

2008) ........................................................................10

Del Monte Dunes at Monterey, Ltd. v. City of Monterey,

95 F.3d 1422 (9th Cir. 1996) ....................................9

Deltona Corp. v. United States, 657 F.2d 1184 (Ct. Cl.

1981) ........................................................................11

Dep’t of Cmty. Affairs v. Moorman, 664 So. 2d 930 (Fla.

1995) ........................................................................19

iii

DM Arbor Ct., Ltd. v. City of Houston, 150 F.4th 418

(5th Cir. 2025) .........................................................12

Dunes W. Golf Club, LLC v. Town of Mt. Pleasant, 737

S.E.2d 601 (S.C. 2013) ............................................11

Good v. United States, 39 Fed. Cl. 81 (1997) ............11

Gove v. Zoning Bd. of Appeals, 444 Mass. 754 (Mass.

2005) ....................................................................9, 10

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470 (1987) .......................................................19

Lemon Bay Cove, LLC v. United States, 160 Fed. Cl. 593

(2022).......................................................................11

Leone v. Cnty. of Maui, 141 Haw. 68 (Haw. 2017) .......

.......................................................................9, 10, 12

Lingle v. Chevron, U.S.A. Inc., 544 U.S. 528 (2005) ....

.................................................................................10

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982) .........................................................7

Lost Tree Vill. Corp. v. United States, 787 F.3d 1111

(Fed. Cir. 2015) .......................................................12

Loveladies Harbor v. United States, 28 F.3d 1171 (Fed.

Cir. 1994) ................................................................ 10

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992).............................................................2, 3, 4, 7

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex.

1998) ........................................................................10

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922).........6, 18

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ...7, 18

Penn Central Transp. Co. v. N.Y.C., 438 U.S. 104 (1978)

...............................................................................3, 6

Shands v. City of Marathon, 411 So. 3d 452 (Fla. Dist.

Ct. App. 2025) ...................3, 4, 5, 6, 8, 10, 15, 17, 25

Sierra Nevada Sw. Enters. v. Douglas Cnty., 506 F.

App’x 663 (9th Cir. 2013) .......................................12

Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning

Agency, 535 U.S. 302 (2002) .....................................7

W.J.F. Realty Corp. v. State, 672 N.Y.S.2d 1007 (Sup.

Ct. Suffolk Cnty. 1998) ...........................................11

Statutes

33 U.S.C. § 426(e) ......................................................27

City of Marathon, Fla., Code § 107-3 (2025) ..............5

Fla. Stat. § 380.0552(9)(a)2. (2025)...........................25

King Cnty., Wash., Code § 21 A.37 (2026)................22

N.J. Admin. Code § 7:50-5.41-48 (2026) ...................22

Norfolk, Va., Zoning Ordinance §§ 3.9.18, 3.9.19, 5.12

(Jan. 23, 2018) ........................................................26

Pima Cnty., Ariz., Code § 18.92 (2026) .....................27

Sisters, Or., Mun. Code ch. 8.20 (2025) ....................27

Other Authorities

Alice McLean, et al., Univ. of Haw., Transfer of

Development Rights for Sea Level Rise Adaptation: An

Analysis for O‘ahu (2024) .................................26, 28

Brian W. Ohm, Some Modern Day Musings on the Police

Power, 47 The Urb. Law. 625 (2015) .....................18

Carol Necole Brown & Dwight H. Merriam, On the

Twenty-Fifth Anniversary of Lucas: Making or

Breaking the Takings Claim, 102 Iowa L. Rev. 1847

(2017).......................................................................10

Collier Cnty., Fla., Collier County Transfer of

Development Rights (TDR) Program (Sept. 22, 2025),

https://storymaps.arcgis.com/stories/3d314dac38454f6

093e65ae9fa1fc5d1 .................................................23

Daniel R. Mandelker & Michael Allan Wolf, Land Use

Law (6th ed. 2026) ............................................20, 26

Dennis J. McEleney, Using Transferable Development

Rights to Preserve Vanishing Landscapes and

Landmarks, 83 Ill. B. J. 634 (1995) .......................19

Devon Applegate, Note, The Intersection of the Takings

Clause and Rising Sea Levels, 43 B.C. Env’t. Aff. L.

Rev. 511 (2016) .......................................................26

Evangeline R. Linkous & Timothy S. Chapin, TDR

Program Performance in Florida, 80 J. Am. Plan.

Ass’n 253 (2014) ......................................................23

FEMA, Local Mitigation Planning Handbook (2025) ..

.................................................................................24

Hazen, Biscayne Bay Economic Study Update (Sept. 15,

2023) ........................................................................16

John R. Nolon, In Praise of Parochialism: The Advent of

Local Environmental Law, 26 Harv. Env’t L. Rev. 365

(2002).......................................................................20

vii

Judd Schectman & Michael Brady, Nat’l Oceanic &

Atmospheric Admin., Cost-Efficient Climate Change

Adaptation in the North Atlantic (2013) ...............28

Ken Cousins, et al., Earth Econ. & Everglades Found.,

Thriving Everglades, Thriving Economy: Nature’s

Value in the Everglades (2025) ..............................16

King Cnty., Wash., Transfer of Development Rights

Program Overview

https://kingcounty.gov/en/dept/dnrp/buildingsproperty/green-sustainable-building/transfer-ofdevelopment-rights/overview (last visited May 27,

2026) ........................................................................22

L. Macaulay, The Role of Wild-Life Associated

Recreation in Private Land Use and Conservation:

Providing the Missing Baseline, 58 Land Use Pol’y 218

(2016).......................................................................17

Michael D. Kapowitz, et al., Planners’ experiences in

managing growth using transferable development

rights (TDR) in the United States, 25 Land Use Pol’y

378 (2008)................................................................ 21

viii

N.J. Pinelands Comm’n, New Jersey Pinelands

Development Credit Program (Nov. 19, 2025) ......22

Nat’l Oceanic & Atmospheric Admin., Global and

Regional Sea Level Rise Scenarios for the United

States (2022) ...........................................................25

Shelley Saxler, Building Climate Resilience with Local

Tools, 58 Ga. L. Rev. 1663 (2024) ........25, 26, 27, 28

Todd K. BenDor, et al., A National Inventory and

Analysis of U.S. Transfer of Development Rights

Programs, 65 J. Env’t Plan. & Mgmt. 2276 (2022) ...

.................................................................................21

U.S. Army Corps of Eng’rs, Flood Risk Management &

Coastal Storm Risk Management,

https://www.usace.army.mil/Missions/CivilWorks/Flood-and-Coastal-Storm-Risk-Management/

(last visited May 27, 2026) .....................................27

Urban3, Economics of Rural Land Use in Florida (2025)

.................................................................................15

William Funk, Revolution or Restatement? Awaiting

Answers to Lucas’s Unanswered Questions, 23 Env’t.

L. 891 (1993) .............................................................9

INTEREST OF AMICI CURIAE1

Amici are nonprofit conservation organizations

dedicated to protecting Florida’s natural resources

and supporting conservation and land-use planning

efforts in South Florida and the Everglades

ecosystem.

Audubon Western Everglades is a nonprofit

organization founded in 1961 and dedicated to

protecting and restoring Southwest Florida’s natural

resources and biodiversity through science-based

policy, habitat stewardship, and community

engagement.

Conservancy of Southwest Florida is a

nonprofit environmental organization founded in

1964 and dedicated to protecting the water, land,

wildlife, and future of Southwest Florida through

science, policy, education, and environmental

advocacy.

Tropical Audubon Society is a grassroots

nonprofit conservation organization dedicated to

conserving and restoring South Florida ecosystems

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than Amici funded

its preparation or submission. Counsel for Amici Curiae gave

each party ten days’ timely notice of the intent to file this brief.

and advocating for land-use policies that protect the

Everglades, water resources, wildlife habitat, and

environmentally sensitive lands in South Florida.

Izaak Walton League of America Florida

Keys Chapter is a nonprofit conservation

organization that works to conserve, protect,

maintain, and restore the natural resources of the

Florida Keys and South Florida through public

education and advocacy.

These organizations (the “Environmental Amici”)

submit this brief because the decision below threatens

conservation and land-use planning tools relied upon

throughout Florida and nationwide, including

transferable development rights programs used to

direct development away from public resource lands.

Amici are particularly concerned that the Florida

Third District Court of Appeal’s interpretation of

Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992), creates uncertainty for planning and

conservation frameworks that support ecosystem

restoration, coastal resiliency, hurricane evacuation

planning, and growth management in South Florida

and nationwide.

SUMMARY OF ARGUMENT

State and local governments have long used their

inherent police power to promote conservation goals

and preserve public resources. Zoning and land use

planning schemes are critical to this effort, allowing

governments to direct certain land uses into

appropriate areas to protect human health, safety,

and the environment. State and local governments are

increasingly using zoning and planning tools to

address impacts from hurricanes, flooding, wildfire,

and sea level rise. Transferable development rights

(“TDR”) programs are but one of the many tools state

and local governments can use to achieve conservation

goals, and have been used successfully throughout the

U.S. to protect ecologically sensitive, agricultural,

coastal, and forested lands. The decision below,

Shands v. City of Marathon, 411 So. 3d 452 (Fla. Dist.

Ct. App. 2025), could upend decades of governments’

reasonable, legitimate exercise of their planning

authorities to promote responsible, sustainable

development and environmental goals.

This Court recognized a categorical, per se taking

occurs where private property has been deprived of

“all economically beneficial use” by government

regulation, requiring “just compensation” under the

Takings Clause of the Fifth Amendment. Lucas, 505

U.S. at 1019. Where, however, residual property value

exists after regulation, this Court has developed a

balancing test to determine whether a taking has

occurred. Penn Central Transp. Co. v. N.Y.C., 438 U.S.

104, 124 (1978). These tests strike a balance between

impacts on private property and governments’

legitimate interest in regulating for the public

interest.

The lower court’s decision disrupts this balance,

broadening the scope of Lucas categorical takings by

excluding from its inquiry an entire category of

potential economic use and value: any value that does

not flow from cultivating or developing the property,

including TDR credits. Shands, 411 So. 3d at 463. This

reading of the law—that land in its natural state, even

if retaining market value, lacks sufficient value to

avoid a Lucas claim—runs counter to the fundamental

principles of conservation law, which recognize the

significant economic and public value of protecting

natural resources. If this reading takes root, it could

have a chilling effect on state and local planning

authorities’ ability to implement and enforce TDR

programs and other conservation regulations by

subjecting them to takings liability, regardless of the

balance between the exercise of police power and

private property rights struck by the factors in Penn

Central. It will restrain governments’ reasonable

exercise of their traditional police powers, limiting

their capacity to address conservation, climate, and

land management issues.

ARGUMENT

Amici environmental organizations urge this

Court to grant certiorari to clarify the categorical rule

established in Lucas. 505 U.S. at 1015-16. The Florida

Third District Court of Appeal (the “Third DCA”)

significantly departed from this Court’s Fifth

Amendment Takings Clause caselaw in its en banc

ruling in this case. The Third DCA’s opinion is

representative of a split forming among the lower

courts, many of which have struggled with defining

“economic use” and “value” when applying Lucas.

The property at issue in this case, Shands Key, was

downzoned in 1986 to “Conservation Offshore Island”

and made subject to density reductions, a competitive

permit allocation system, and a transferable

development rights (“TDR”) program. Shands, 411 So.

3d at 454-55. These policies designated Shands Key as

a natural area to promote conservation and hurricane

evacuation planning. Id. at 455, 472. The TDR

program includes the property in a market-based

system allowing “sending area” property owners, like

the Shands, to sever and sell their development rights

to “receiving area” owners, limiting development in

sending areas and promoting higher density in

receiving areas. City of Marathon, Fla., Code § 107-3

(2025).

After years of litigation and multiple appeals, a

Florida state trial court, applying the Penn Central

test, found the City’s regulations did not amount to a

taking because Shands Key had a market value of

$60,000 if used for recreational activities, and of

$147,000 if sold for TDR credits. Shands, 411 So. 3d

at 472-74. On appeal, the Third DCA reversed,

holding that, despite this demonstrated value, the

City’s zoning regulations left the Shands with no

“beneficial use” of their property, and only a “token

interest in the property.” Shands, 411 So. 3d at 464.

This holding threatens state and local

governments’ regulatory conservation schemes

nationwide.

I. THIS COURT SHOULD RESOLVE THE

LOWER

COURTS’

INCONSISTENT

APPLICATION OF LUCAS.

The Fifth Amendment to the U.S. Constitution

requires that no “private property be taken for public

use, without just compensation”. U.S. Const. amend.

V. Courts have long held that government regulation

may amount to a taking where it “goes too far”. Pa.

Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

Determining whether a regulation amounts to a

taking most commonly requires a court’s factintensive review under the ad hoc balancing test

established in Penn Central, 438 U.S. at 124. The

Penn Central balancing test weighs the impact of a

regulation on a property owner against, in part, the

regulation’s “promotion of the general welfare”. Id. at

126, 131, 138. This test has been applied countless

times over the past fifty years in circumstances where

it is unclear whether a regulation amounts to a taking,

or where regulation effects only a partial taking.

This Court has carved out two limited exceptions

from the touchstone Penn Central balancing test for

so-called total (or categorical, per se) regulatory

takings: those that involve a permanent physical

invasion of property, Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982), and

those that have entirely stripped a property of value.

Lucas, 505 U.S. at 1015, 1019 (finding categorical

treatment appropriate where a “regulation denies all

economically beneficial or productive use of land” and

leaves it “economically idle”). The application of the

Penn Central balancing test for partial regulatory

takings and the use of the Loretto and Lucas tests for

per se, total regulatory takings have been affirmed by

this Court. See Palazzolo v. Rhode Island, 533 U.S.

606, 617-18 (2001); id. at 636 (O’Connor, J.,

concurring) (identifying Penn Central as the Court’s

“polestar”); Tahoe-Sierra Pres. Council v. Tahoe Reg’l

Planning Agency, 535 U.S. 302, 332, 335-36 (2002)

(delineating the application of Lucas versus Penn

Central: “the categorical rule in Lucas was carved out

for the ‘extraordinary case’ in which a regulation

permanently deprives property of all value; the

default rule remains that, in the regulatory taking

context, we require a more fact specific inquiry”).

The Third DCA’s en banc holding represented a

marked shift from the Penn Central and Lucas

standards. In finding that the City’s zoning

regulations did amount to a regulatory taking of the

Shands’ property, the Third DCA held: (1) under

Lucas, the relevant inquiry in examining whether a

regulation effects a taking is whether the subject

property retains any economically viable use, as

opposed to value; and (2) any value associated with

TDR programs is irrelevant to determining whether a

taking has occurred, and may be weighed only in the

assessment of just compensation. Shands, 411 So. 3d

at 460-65. The Court found that even though the

property had market value through recreational use,

beekeeping operations, and TDR credits, this value

was entirely outside the “economically beneficial use”

contemplated by the Lucas standard. Id. at 454, 46264. The Third DCA’s ruling effectively removes some

uses or sources of value from Lucas’s “economic use”,

drawing a hard line between the development of land

and any other sources of economic value—including

TDR credit and recreational value—that do not

involve the property’s direct, physical development.2

Following Lucas, many courts have found “value”

and “use” more intertwined than the Third DCA’s

reading proposes. First, many courts have found that

“economically beneficial use” is simply market value,

and that sufficient residual “value” or “use” exists

where a regulation has effected less than a 99 percent

2 The Lucas decision’s language is somewhat inconsistent, using

numerous variations of “economic value” and “economically

beneficial use” throughout. See William Funk, Revolution or

Restatement? Awaiting Answers to Lucas’s Unanswered

Questions, 23 Env’t. L. 891, 893-94 (1993) (discussing Lucas’s

“various verbal formulations” of “value” and “use”). Some courts

have sought to navigate the perceived tension between “value”

and “use”, and their treatment of the issue has revealed the

challenges in defining “economic use” outside of a determination

of its “economic value.” E.g., Leone v. Cnty. of Maui, 141 Haw. 68,

83 (Haw. 2017) (stating that while “[t]here is a difference

between economically beneficial use and value” and “a property

that has value may not have ‘economically beneficial use,’”

property value remains relevant); Gove v. Zoning Bd. of Appeals,

444 Mass. 754, 762-64 (Mass. 2005) (considering both remaining

uses and market value; concluding the property owner “cannot

prove a total taking by proving only that one potential use of her

property—i.e., as the site of a house—is prohibited”). The Ninth

Circuit recently reaffirmed that “value is the determinative

factor” in a Lucas determination, Bridge Aina Le’a, LLC v. State

Land Use Comm’n, 950 F.3d 610, 627 (9th Cir. 2020), backing

away from a previous decision that had concluded the “focus is

primarily on use, not value.” Id. at 628 (limiting Del Monte Dunes

at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1432-33 (9th

Cir. 1996)).

diminution in market value.3 Compare Mayhew v.

Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998)

(examining the “economically viable use of a property”

as a function of “whether value remains in the

property after the governmental action” and finding

remaining market value precluded a taking claim),

with Loveladies Harbor v. United States, 28 F.3d 1171,

1174-75 (Fed. Cir. 1994) (finding a taking occurred

where it effected a more than 99 percent diminution

of market value), and City of Sherman v. Wayne, 266

S.W.3d 34 (Tex. App. 2008) (applying Mayhew and

finding no remaining market value). And this Court

has expressly ruled that “value is the determinative

factor” in a Lucas taking analysis. Lingle v. Chevron,

U.S.A. Inc., 544 U.S. 528, 539 (2005).

Other courts have found a variety of residual value

and uses beyond market value that do not “flow from

cultivating or developing the property”, Shands, 411

So. 3d at 463, yet nevertheless defeat a Lucas claim,

including: fishing, shellfishing, outdoor recreation,

floats, public boat launches and beaches (Gove, supra

note 2); investment value or potential commercial use

(Leone, supra note 2). See also Dunes W. Golf Club,

LLC v. Town of Mt. Pleasant, 737 S.E.2d 601, 606 n.6,

3 The total regulatory wipeout of a property’s market value is

exceedingly rare. See Carol Necole Brown & Dwight H. Merriam,

On the Twenty-Fifth Anniversary of Lucas: Making or Breaking

the Takings Claim, 102 Iowa L. Rev. 1847 (2017).

618-19 (S.C. 2013) (rejecting a Lucas claim where

zoning left a property with “numerous recreation and

conservation uses” including some that only provided

conservation value and open space (e.g., play fields

and park land)).

Notably, some courts have expressly defended the

value of TDR credits as relevant to the determination

of whether a Lucas “total deprivation” has occurred;

in other words, these rulings have considered TDR

credits in their calculation of a property’s remaining

“economically beneficial use” after regulation. E.g.,

Good v. United States, 39 Fed. Cl. 81, 106-08 (1997)

(rejecting the exclusion of TDR credit value from the

threshold question of whether a taking has occurred),

aff’d, 189 F.3d 1355 (Fed. Cir. 1999); W.J.F. Realty

Corp. v. State, 672 N.Y.S.2d 1007 (Sup. Ct. Suffolk

Cnty. 1998) (recognizing that TDRs may be viewed

either as compensation or as a factor in determining

whether a taking occurred). Others have more

implicitly suggested TDR credits are relevant to the

Lucas determination. E.g., Deltona Corp. v. United

States, 657 F.2d 1184, 1192, n.14 (Ct. Cl. 1981) (noting

TDR credits should factor into “considering the impact

of regulation”, i.e., whether a taking occurred); Lemon

Bay Cove, LLC v. United States, 160 Fed. Cl. 593, 61112 (2022) (declining to rule on the question of TDR

credits as determinative of whether a taking has

occurred, but noting “the property could potentially

have retained beneficial economic value by generating

marketable [TDR credits]”); Sierra Nevada Sw.

Enters. v. Douglas Cnty., 506 F. App’x 663, 665 (9th

Cir. 2013) (“We assume, without deciding, that the

[TDRs] . . . constitute property rights for purposes of

this federal constitutional analysis.”).

In contrast, the Third DCA joins several lower

courts that have strayed from using value as the

determinative factor in a Lucas analysis, concluding

instead that “economically beneficial use” excludes

uses that provide environmental value or market

value stemming from speculation that development

might be economically feasible in the future. See Lost

Tree Vill. Corp. v. United States, 787 F.3d 1111, 111319 (Fed. Cir. 2015) (finding a property’s residual

“environmental value as a wetland” insufficient to

defeat a Lucas taking claim); DM Arbor Ct., Ltd. v.

City of Houston, 150 F.4th 418, 423-26 (5th Cir. 2025)

(finding a Lucas categorical taking even where

considerable market resale value remained, because

development was not “economically viable” at

present); but cf. Leone, 141 Haw. at 85 (concluding the

Lucas inquiry is about “use” but finding value as an

investment “a reasonable, economically viable use”).

The interpretations of the Shands, Lost Tree, DM

Arbor courts—and, to a certain extent, the Leone

court—significantly narrow the Lucas inquiry to

exclude measurable value that other courts would

consider sufficient to avoid a per se taking. This

reading of the law allows claimants to potentially

avoid the appropriate Penn Central balancing test,

which applies where some value remains, but a partial

taking may have occurred. These rulings’ departure

from these standards, the considerable amount of

discussion and litigation generated by this issue, and

the implications for governments’ ability to regulate

to protect conservation and related public health and

safety interests justify this Court’s acceptance of

certiorari to clarify and reaffirm the bounds of Lucas.

II. THE THIRD DCA’S READING OF THE

LAW RISKS UNDERMINING WELLESTABLISHED LAND USE PLANNING

PRINCIPLES

AND

REGULATORY

CONSERVATION SCHEMES.

As population and development pressures

increase, as worsening storm systems threaten

human lives and infrastructure, and as sea level rise

claims more coastal lands, local governments’

planning and zoning authority is becoming

increasingly central to their ability to protect public

health and safety. The Third DCA’s reading of Lucas

complicates governments’ exercise of their legitimate

police power, limiting the categories of “uses” that

governments may regulate without risking a

categorical taking claim; this reading risks

undermining the principles underlying countless

conservation and land management policies and

directly undermines the efficacy of TDR programs—

which have been successfully employed by state and

local governments across the nation.

By excluding the consideration of various

measures of the value of land in its natural state, the

lower court’s decision also endorses a view of land use

and value antithetical to principles of conservation.

Natural lands, whether used for preservation,

conservation, or recreation, have value. This value

may be reflected by market values, or as a measure of

ecosystem benefits or an incremental contribution to

conservation or resilience goals. State and local

governments may reasonably exercise their police

power to regulate to protect and promote this value.

While the Takings Clause provides protection against

regulatory actions that impose public burdens on

private property owners in some circumstances, it

does not support the Third DCA’s dismissal of

measurable, marketable value where it is clearly

retained by a property owner. As here, where a

regulation has not effected a complete wipeout of

value, Penn Central provides the appropriate test to

balance a regulation’s burden on property owners

against the public benefit; this test properly balances

both landowners’ property rights and governments’

police power to protect natural lands and the full scope

of public value they provide.

A. The Third DCA’s reading of Lucas

threatens state and local governments’

ability to regulate land use and

development, and to protect land for

conservation and related public safety

goals.

The Third DCA argues that, for Taking Clause

purposes, the only use of property that is “economic”

lies in the “traditional framework of ownership”,

meaning the ability to “cultivat[e] or develop[]” the

property. Shands, 411 So. 3d at 463. However, this

conclusion fails to account for both the public value

and the actual market value of conservation land.

Cultivation or development of property is not the

only measure of economic value. As economists have

long recognized, the market value of a property may

not capture the externalities associated with

conservation.4 A strip of natural land in the

Everglades watershed in southeast Florida, for

example, allows freshwater to percolate into the

groundwater, refreshing the underlying Biscayne

Aquifer, which provides drinking water to nine million

people. It also allows water to move naturally over its

surface, returning freshwater flows to coastal

4 Urban3, Economics of Rural Land Use in Florida 11-13 (2025),

https://1000fof.org/wpcontent/uploads/2025/09/Urban3RuralLandUseReport.pdf.

waterways that support terrestrial, aquatic, and

avian species and myriad recreational and economic

activities. The health of these coastal waterways is

directly tied to the region’s tourism and fishing

industries, coastal property values, and the economy

as a whole. During storm events, natural lands also

serve as sponges, absorbing water and protecting

communities from flooding exacerbated by paved,

impervious surfaces.5 These “ecosystem benefits”

carry immense economic value, even if not captured

by the market price. See, e.g., Hazen, Biscayne Bay

Economic Study Update ES-8 (Sept. 15, 2023)

(concluding Biscayne Bay contributed nearly $64

billion in economic output to Miami-Dade County in

2022); Cousins, et al., supra note 5, xii (concluding the

“current combined economic value of the Greater

Everglades System is at least $31.5 billion per year or

$1.01 trillion over 50 years”).

Markets do, however, often recognize at least some

of the value of conservation land—as they did in

Shands itself. There, trial court evidence based on

comparable sales demonstrated Shands Key, even

zoned as “Conservation Offshore Island” and in its

5 Ken Cousins, et al., Earth Econ. & Everglades Found., Thriving

Everglades, Thriving Economy: Nature’s Value in the Everglades

34-35

(2025)

https://b797e412-2757-4f33-af72a0f87d5b59ea.usrfiles.com/ugd/d45609_d489ae3e21024e3da5e8

024227993854.pdf.

natural state, had a market value of $60,000 for

recreational and beekeeping use, with additional TDR

credit value on top of this. Shands, 411 So. 3d at 47274. As Judge Logue notes in his dissent, “studies have

shown that land in its natural state can have

substantial monetary value for hunting, fishing,

camping, and other nature-oriented uses.” Shands,

411 So. 3d at 479 (citing L. Macaulay, The Role of

Wild-Life Associated Recreation in Private Land Use

and Conservation: Providing the Missing Baseline, 58

Land Use Pol’y 218-33 (2016) (noting nearly a third of

all private land in the U.S. is either leased or owned

for wildlife-associated recreation, including hunting,

wildlife-watching, and fishing)). An island like

Shands Key could serve a number of recreational uses

highly valuable to anyone interested in camping,

fishing, native wildlife, or other outdoor pursuits—as

evidenced by the property’s value on the market in its

current designation as conservation land.

Shands, however, effectively defines land

preservation uses—even those with clear market

value—as non-economic uses, interpreting Lucas to

fundamentally and uniquely burden governments’

ability to protect lands’ preservation-based uses and

values as part of their traditional police power. The

Takings Clause does not support this categorically

different approach to assessing the constitutionality

of local governments’ reasonable exercise of their

police power to accomplish environmental and

conservation goals in the public interest. As this Court

has aptly stated:

The right to improve property, of course, is

subject to the reasonable exercise of state

authority, including the enforcement of valid

zoning and land-use restrictions. See

Pennsylvania Coal Co., 260 U.S. at 413

(“Government hardly could go on if to some

extent values incident to property could not be

diminished without paying for every such

change in the general law”).

Palazzolo, 533 U.S. at 627.

State and local governments in the U.S. have long

exercised their inherent police power to promote

“public safety, public health, morality, peace and

quiet, law and order.” Berman v. Parker, 348 U.S. 26,

32 (1954) (noting these “examples of the traditional

application of the police power” are not the limit of this

broad authority); see also Brown v. Maryland, 25 U.S.

419, 443 (1827) (describing inherent state powers);

Brian W. Ohm, Some Modern Day Musings on the

Police Power, 47 The Urb. Law. 625 (2015) (describing

the broad scope of state and local police powers). This

police power extends to the protection of the

environment, and the value of environmental

protections and natural lands is reflected in the

extensive systems of environmental regulation in

effect across the U.S. Keystone Bituminous Coal Ass’n

v. DeBenedictis, 480 U.S. 470, 488 (1987) (upholding a

state’s exercise of the police power “to protect the

public interest in health, the environment, and the

fiscal integrity of the area”); Dep’t of Cmty. Affairs v.

Moorman, 664 So. 2d 930, 932 (Fla. 1995) (affirming

the state has a “legitimate interest in protecting [its]

natural habitat”; writing, “The clear policy underlying

Florida environmental regulation is that our society is

to be a steward of the natural world, not its

unreasoning overlord.”).

State and local governments have used this

authority to develop a large variety of land use

management and planning tools, such as broad,

overarching policies like comprehensive plans and

jurisdiction-wide zoning regulations, as well as more

targeted schemes, like urban development boundaries

and TDR programs.6 Planning tools help state and

local governments direct certain forms of development

toward areas with required infrastructure and low

environmental risk, while discouraging development

in fragile environments or areas prone to flooding,

fire, or other natural disaster. Doing so serves many

purposes, both environmental and socio-economic,

See Dennis J. McEleney, Using Transferable Development

Rights to Preserve Vanishing Landscapes and Landmarks, 83 Ill.

B. J. 634, 637 (1995) (“TDR programs are exercises of the police

power under which the government regulates the use and

enjoyment of private property to protect the general public

health, safety, and welfare.”)

including: reducing impacts to native species, air, and

waterways; reducing the loss of environmentally

sensitive lands (e.g., wetlands) or productive lands

(e.g., agricultural or silvicultural); reducing

nuisances; and promoting human health and safety.7

The Third DCA’s logic in Shands is grounded in

the premise that some exercises of police power —

those regulatory schemes that would protect property

in its natural, undeveloped state—must be evaluated

under a different, more stringent Takings Clause

standard than other exercises of police power,

regardless of whether land in its natural state retains

significant economic value, evidenced by market

transactions or otherwise. Such a fundamental

rewriting of the Constitution’s Takings Clause

uniquely burdens governments’ ability to enact

critical conservation and environmental regulations,

representing an exceedingly narrow view of “economic

use” that directly contradicts many of the foundations

of environmental law and environmental economics.

7 See generally Daniel R. Mandelker & Michael Allan Wolf, Land

Use Law §§ 10.02, 12.01, 12.05, 12.08, 12.14 (6th ed. 2026); John

R. Nolon, In Praise of Parochialism: The Advent of Local

Environmental Law, 26 Harv. Env’t L. Rev. 365, 365-407 (2002).

B. The Third DCA’s reading threatens

TDR programs, which are successful

nationwide.

By discounting the value of TDR credits, the Third

DCA’s interpretation significantly broadens the scope

of what amounts to a regulatory taking under Lucas.

TDR programs have proven an effective means of

protecting the environment, conserving public

resources, and promoting public safety, while

conveying meaningful market value to landowners.

These programs are successful precisely because they

create and support active markets for development

rights that allow individual property owners to retain

economic value, even when their property is regulated

to protect conservation, public safety, and other

legitimate public purposes. The limited definition of

“use” under Lucas presented by the Third DCA would

have a chilling effect on state and local planning

authorities’ TDR programs and other conservation

regulations.

While the Third DCA dismisses the market value

of TDR credits, active markets for TDR programs exist

nationwide. The first TDR programs were

implemented in the 1960s and there are now nearly

350 active programs operating across thirty-eight U.S.

states today. Michael D. Kapowitz, et al., Planners’

experiences in managing growth using transferable

development rights (TDR) in the United States, 25

Land Use Pol’y 378 (2008); Todd K. BenDor, et al., A

National Inventory and Analysis of U.S. Transfer of

Development Rights Programs, 65 J. Env’t Plan. &

Mgmt. 2276 (2022). These programs have protected

countless acres of agricultural lands and ecologically

and economically significant lands, forests, and

coastlines. For example, King County, Washington’s

TDR program has protected over 148,000 acres of

rural and resource lands.8 New Jersey’s Pinelands

Development Credit Program—a TDR program that

redirects growth from within the state’s forested

Pinelands area to areas designated for regional

growth—has preserved over 62,000 acres of

agricultural and preservation land, generating $4.4

million in sales in 2025 alone.9

Through TDR programs, developers can augment

their density allowances in receiving areas by buying

credits from sending areas, building upward rather

than developing on larger, sprawling parcels. This is

8 King Cnty., Wash., Transfer of Development Rights Program

Overview

https://kingcounty.gov/en/dept/dnrp/buildingsproperty/green-sustainable-building/transfer-of-developmentrights/overview (last visited May 27, 2026); King Cnty., Wash.,

Code § 21 A.37 (2026).

9 N.J. Pinelands Comm’n, New Jersey Pinelands Development

Credit

Program

(Nov.

19,

https://www.nj.gov/pinelands/infor/fact/PDCfacts.pdf;

Admin. Code § 7:50-5.41-48 (2026).

2025),

N.J.

particularly practical in South Florida, where

typically population centers have developed on the

coasts, abutting the remaining Everglades and

agricultural areas further inland. TDR programs have

been instrumental in protecting Florida wetlands and

agricultural lands, both of which are facing increasing

threats of encroaching sprawl as the state’s

population booms and population centers expand

inland. For example, Collier County, Florida’s TDR

program has, to date, protected over 7,800 acres of

rural lands across 470 properties, reducing urban

sprawl by allowing rural landowners to trade density

credits to developers in designated denser areas.10 The

program has an active market, with sixty-nine

transfers over twenty years, totaling $58 million in

expenditures. Id. Palm Beach County’s TDR program

is similarly successful—as of 2014, it had preserved or

protected over 14,000 acres of environmentally

sensitive and agricultural lands. Evangeline R.

Linkous & Timothy S. Chapin, TDR Program

Performance in Florida, 80 J. Am. Plan. Ass’n 253,

258-60 (2014).

TDR programs have proven to be an important tool

for encouraging development in planned, appropriate

10 Collier Cnty., Fla., Collier County Transfer of Development

Rights

(TDR)

Program

(Sept.

22,

2025),

https://storymaps.arcgis.com/stories/3d314dac38454f6093e65ae

9fa1fc5d1.

areas with infrastructure, balancing the protection of

conservation lands and preserving economic value for

landowners. TDR programs thus offer a balanced

approach that conforms to traditional constitutional

takings analyses. By excluding TDR value from Lucas

inquiries, the Third DCA’s ruling upends this balance.

Under Shands, local governments could either have to

pay out significant compensation for a growing

number of regulatory takings claims—rather than

providing value through TDR programs—or rely on

acquisition or purely voluntary programs instead of

regulation, hamstringing their ability to adequately

protect their communities against an increasing

number of environmental and related threats.

C. The Third DCA’s reading threatens

national conservation policies and

initiatives.

In many cases, state and local government policies

to manage development and preserve land in its

natural state can work in support of broader regional

or national goals, including flood control, emergency

preparedness, ecosystem restoration, and climate

resilience.11 Using Lucas to carve out additional

See FEMA, Local Mitigation Planning Handbook (2025),

https://www.fema.gov/sites/default/files/documents/fema_hmd_2

025-local-mitigation-planning-handbook_06122025.pdf

(discussing effective land use schemes to discourage development

in hazard-prone areas and mitigate impacts).

exceptions to Penn Central’s longstanding holistic

balancing test creates additional hurdles to

governments’ reasonable exercise of their traditional

police power, limiting their ability to protect these

“conservation uses” and threatening their capacity to

effectively address these critical, broader—and

increasing—challenges.

The regulations at issue in Shands were developed

by the City and Monroe County in accordance with a

Florida state directive to ensure safe hurricane

evacuation in the Florida Keys by reducing residential

development. Shands, 411 So. 3d at 455; Fla. Stat. §

380.0552(9)(a)2. (2025) (enacted 1979) (requiring that

Florida Keys governments develop comprehensive

land management plans to ensure hurricane

evacuation is feasible within 24.5 hours). While

Florida and the Keys are uniquely at risk from

worsening hurricane seasons and rising sea levels

(Pet. 27), all fifty states have an interest in proactive

planning for resilience and safe evacuation methods

during natural disasters and emergencies. See Nat’l

Oceanic & Atmospheric Admin., Global and Regional

Sea Level Rise Scenarios for the United States (2022)

(predicting between four and eighteen inches of sea

level rise along U.S. coasts by 2050); see generally

Shelley Saxler, Building Climate Resilience with

Local Tools, 58 Ga. L. Rev. 1663 (2024) (describing

state and local planning responses to climate-related

risks).

Many states and municipalities have used their

planning powers to prepare for and mitigate the

impacts of rising seas and worsening storms by

discouraging or limiting development in coastal areas.

E.g., Saxler, supra, at 1685-86 (describing zoning

provisions in Boston, Massachusetts that limit

development in flood hazard areas and ecological

lands; noting more zoning and planning measures are

“under way”); see also Devon Applegate, Note, The

Intersection of the Takings Clause and Rising Sea

Levels, 43 B.C. Env’t. Aff. L. Rev. 511, 514-17 (2016)

(discussing various climate-oriented coastal planning

schemes); Mandelker, supra note 7, § 12.14 (same).

Norfolk, Virginia, for example, adopted a new zoning

code in 2018 to encourage development away from

coastal areas, on higher elevation, by creating a

coastal resiliency overlay district with more onerous

building standards; this system included a “resilience

quotient”, a TDR-like system that rewards developers

for adopting risk reduction measures. Norfolk, Va.,

Zoning Ordinance §§ 3.9.18, 3.9.19, 5.12 (Jan. 23,

2018). In areas at risk of extreme sea level rise, local

planning measures may be essential to facilitating

managed retreat from soon-uninhabitable coastal

areas. See, e.g., Alice McLean, et al., Univ. of Haw.,

Transfer of Development Rights for Sea Level Rise

Adaptation: An Analysis for O‘ahu (2024) (examining

TDR programs to manage inland migration in

Hawaii).

States and municipalities have begun planning for

worsening wildfire events, as well. Saxler, supra, at

1679-80 (describing local planning for wildfires); id.

1709-11 (describing the role of local governments in

disaster response planning). To reduce the spread and

impact of wildfire, the City of Sisters, Oregon has

passed zoning ordinances that limit development

density in its urban/rural interface. Saxler, supra, at

1686-87; Sisters, Or., Mun. Code ch. 8.20 (2025); see

also Pima Cnty., Ariz., Code § 18.92 (2026) (Pima

County, Arizona’s TDR program shifting development

away from its fire-prone wildland-urban interface).

The federal government, too, has an interest in

conserving natural lands and protecting population

centers from climate-related risks, as evidenced by its

significant investment in restoration and resilience

projects across the country. The U.S. Army Corps of

Engineers (“Corps”), through its Coastal Storm Risk

Management (“CSRM”) authorities under 33 U.S.C.

§§ 426(e), 2213, has conducted over 150 coastal storm

risk studies and projects with the aim of

“safeguarding communities from . . . coastal storms,

reducing vulnerabilities, enhancing resilience, and

reducing risk to property and natural resources.”12

12 U.S. Army Corps of Eng’rs, Flood Risk Management & Coastal

Storm

Risk

Management,

https://www.usace.army.mil/Missions/Civil-Works/Flood-andCoastal-Storm-Risk-Management/ (last visited May 27, 2026).

Local government planning initiatives can work in

tandem with these federal projects, enhancing their

effectiveness. For example, after the Corps initiated a

CSRM project in the area, Ocean City, Maryland’s

TDR program allowed it to acquire the Corpsmandated easements—otherwise unaffordable for the

city—necessary to widen its beaches for the project.

Judd Schectman & Michael Brady, Nat’l Oceanic &

Atmospheric Admin., Cost-Efficient Climate Change

Adaptation in the North Atlantic 175-76, 177-78

(2013); McLean, supra, at 10-11.

State and local emergency preparedness and

resilience planning can reduce disaster impacts,

creating communities that are protected from and can

appropriately respond to extreme storms, floods, and

wildfires. Saxler, supra, at 1667-69. As these efforts

ramp up nationwide, it is essential governments are

not inappropriately constrained in their exercise of

reasonable planning regulations. Yet the Third DCA’s

ruling in Shands does exactly that, limiting local

planning authorities’ ability to regulate in the public

interest by proposing a new, narrow definition of

“economic use” under Lucas that includes only those

uses that directly develop the land. This holding is at

odds with responsible emergency, conservation, and

land use planning. This Court should review the case

below to provide the legal clarity necessary to support

governments’ efforts to prepare for the future.

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted,