       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 2, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-1859
                          Lower Tribunal No. 07-99-M
                             ________________


                         Rodney E. Shands, et al.,
                                   Appellants,

                                        vs.

                       City of Marathon, etc., et al.,
                                   Appellees.


     An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.

     Andrew M. Tobin, P.A., and Andrew M. Tobin (Tavernier), for appellants.

      Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael T.
Burke and Hudson C. Gill (Fort Lauderdale), for appellees.


Before LAGOA, LOGUE, and SCALES, JJ.

     LOGUE, J.
      In this inverse condemnation case, Appellants, Rodney Shands, Robert

Shands, Kathryn Edwards, and Thomas Shands (collectively “the Shands”), appeal

a summary judgment entered in favor of the City of Marathon. We reverse.

                                       FACTS

      The Shands sued the City of Marathon for inverse condemnation alleging that

zoning and environmental regulations deprived them of all or substantially all

economic use of an island they owned within the boundaries of the City. This is the

second time this case has come before us. We had previously reversed an order

dismissing this case as barred by the statute of limitations. Shands v. City of

Marathon, 999 So. 2d 718 (Fla. 3d DCA 2008). In that prior case, we described the

facts as follows:

                 Dr. R.E. Shands purchased the 7.9–acre Little Fat Deer Key
         in 1956, and seven acres of adjacent bay bottom in 1959, before
         any state land use policies existed. He died in 1963, and his wife
         inherited the property, now known as Shands Key. She conveyed
         title to their children, the appellants, in 1985. From the time it was
         purchased until 1986, Shands Key was within Monroe County
         jurisdiction and was zoned General Use.

               In 1986, Monroe County adopted the State Comprehensive
         Plan and development regulations that altered Shands Key’s
         zoning status to Conservation Offshore Island (OS), and placed it
         in the Future Land Use category. When the City of Marathon
         incorporated in 1999, it adopted the 1986 Monroe County
         comprehensive land use plan, and Shands Key was within the City
         bounds. In 2005, the City adopted the City of Marathon


                                           2
         Comprehensive Plan; the land use and zoning designations of
         Shands Key remained unchanged.

                In 2004, the Shands filed an application for a dock permit.
         The application was denied, referring to the City’s prohibition on
         development in areas classified as high quality hammocks, or
         areas with known threatened or endangered species. The Shands
         then filed a Beneficial Use Determination (BUD) application as
         required by the City of Marathon Code of Ordinances, Article 18.
         The Special Master at the conclusion of the BUD hearing found
         that the Shands had reasonable economic investment-backed
         expectations that they could build a family residence on the Key,
         as planned in the late 1950s. The Special Master recommended
         that the City grant a building permit for a single family home
         exempt from the Rate Of Growth Ordinance (ROGO)
         requirements of 0.1 units per acre, or purchase the property for a
         mutually agreeable sum. After a public hearing, the Marathon City
         Council rejected the Special Master’s recommendations and
         denied the Shands’ BUD application.

               The Shands then brought suit against the City, claiming that
         the City’s acts resulted in an as-applied regulatory taking of their
         property without just compensation, in violation of state and
         federal law.

Id. at 720–22 (footnotes omitted).

      Based upon the agreement of the parties, the trial court stayed this case until

a decision was reached in the Beyer v. City of Marathon, case no. 3D12-277, which

was then pending before this court. Once this Court upheld a summary judgment

for the City in Beyer v. City of Marathon, 197 So. 3d 563 (Fla. 3d DCA 2013), the

City moved for summary judgment in this case.           Finding the facts of Beyer

“indistinguishable from the instant case,” the trial court entered summary judgment

for the City. The Shands timely appealed.
                                          3
                                     ANALYSIS

      This Court reviews a trial court’s ruling on a motion for summary judgment

de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000). “Summary judgment is proper if there is no genuine issue of material fact

and if the moving party is entitled to a judgment as a matter of law.” Id.

      Summary judgment “is designed to test the sufficiency of the evidence to

determine if there is sufficient evidence at issue to justify a trial or formal hearing

on the issues raised in the pleadings.” Florida Bar v. Greene, 926 So. 2d 1195, 1200

(Fla. 2006). Because summary judgment tests the sufficiency of the evidence to

justify a trial, it “is proper only if, taking the evidence and inferences in the light

most favorable to the non-moving party, and assuming the jury would resolve all

such factual disputes and inferences favorably to the non-moving party, the non-

moving party still could not prevail at trial as a matter of law.” Moradiellos v.

Gerelco Traffic Controls, Inc., 176 So. 3d 329, 334–35 (Fla. 3d DCA 2015).

      A court considering summary judgment must avoid two extremes. On one

hand, a “party should not be put to the expense of going through a trial, where the

only possible result will be a directed verdict.” Perez-Rios v. Graham Companies,

183 So. 3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v.

Amerada Hess Corp., 769 So. 2d 1105, 1108 (Fla. 4th DCA 2000)). On the other

hand, “a motion for summary judgment is not a trial by affidavit or deposition.

                                           4
Summary judgment is not intended to weigh and resolve genuine issues of material

fact, but only identify whether such issues exist. If there is disputed evidence on a

material issue of fact, summary judgment must be denied and the issue submitted to

the trier of fact.” Perez–Gurri Corp. v. McLeod, 238 So. 3d 347, 350 (Fla. 3d DCA

2017).

         The Shands argue the trial court improperly granted summary judgment for

the City because the regulations at issue constituted a facial, categorical taking of

their property. In the prior appeal of this matter, an earlier dismissal of this case

based on the statute of limitations was reversed precisely because we characterized

the Shands’ claim as being “as applied” and not “facial.” Shands, 999 So. 2d at 726

(“As this is not a claim for a facial taking, but an as applied taking, it follows that

the statute of limitations did not begin to run until February 27, 2007, when the City

of Marathon rejected with finality the Special Master’s BUD recommendation and

denied the Shands’ BUD application.”). The trial court therefore properly treated

this case as an “as applied” challenge.

         The Shands’ main argument is that the summary judgment for the City is

improper because the trial court erred by determining Beyer was factually on all

fours with the instant case. We affirmed summary judgment in Beyer, because

“under an ‘as applied’ takings analysis, the Beyers were not deprived of all

economically beneficial use of the property.” Beyer, 197 So. 3d at 566–67. This

                                           5
was so because the “City assigned the Beyers sixteen points under its Residential

Rate of Growth Ordinance, having a value of $150,000,” and therefore “[t]he award

of ROGO points, coupled with the current recreational uses allowed on the property,

reasonably meets the Beyers’ economic expectations under [the facts of that case].”

Id.

      While Beyer involved the same regulations in the same municipality, it did

not involve the same property. “In an as-applied taking claim, the landowner

challenges the specific impact of the regulation on a particular property.” Shands,

999 So. 2d at 723. Unlike the record in Beyer, the record here, for example, contains

no valuation of the ROGO points. Without a valuation of the ROGO points, it cannot

be said, as the trial court did here, that the facts of Beyer are “indistinguishable from

the instant case,” and therefore it cannot be said that the City is entitled to a judgment

as a matter of law. The valuation of the ROGO points and other facts of Beyer cannot

mechanically be imported into this case both because a motion for summary

judgment can only be granted based on the record in a particular case and, as

mentioned above, an “as applied” takings challenge can only be resolved based upon

the impact of the regulation on a particular parcel of property.

      Reversed.




                                            6
