United States Court of Appeals For the First Circuit
No. 22-1446
MATTHEW HANEY, as Trustee of the Gooseberry Island Trust,
Plaintiff, Appellant,
v.
TOWN OF MASHPEE; MASHPEE ZONING BOARD OF APPEALS; JONATHAN FURBUSH; WILLIAM A. BLAISEDELL; SCOTT GOLDSTEIN; NORMAN J. GOULD; BRADFORD H. PITTSLEY; SHARON SANGELEER, as they are members of the Zoning Board of Appeals of the Town of Mashpee,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.
Paul Revere, III, for appellant. Joseph A. Padolsky, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellees.
June 6, 2023 MONTECALVO, Circuit Judge. Matthew Haney ("Haney"), as
the Trustee of the Gooseberry Island Trust ("Trust"), brought a
complaint against the Town of Mashpee ("Town") and its Zoning Board
of Appeals ("Board") alleging an unconstitutional taking of
property. The district court dismissed the complaint without
prejudice for want of jurisdiction on ripeness grounds. This
appeal raises two issues: (1) whether the government has reached
a "final" decision on the Trust's request for variances and
(2) whether requiring the Trust to submit further applications to
the Town would be futile. Because Haney waived one of his
arguments relative to the first issue and because his other
arguments are meritless, we affirm the dismissal without
prejudice.
I. Background
As this case comes to us on a motion to dismiss, "we
draw the relevant facts from the complaint." Rivera v. Kress
Stores of P.R., Inc., 30 F.4th 98, 100 (1st Cir. 2022). We also
consider and rely on "documents incorporated by reference in the
complaint . . . as well as matters appropriate for judicial
notice." Lass v. Bank of America, N.A., 695 F.3d 129, 134 (1st
Cir. 2012).
The Trust is the owner of Gooseberry Island, a four-acre
island in Popponesset Bay, Mashpee, Massachusetts. Gooseberry
Island lies offshore from the end of Punkhorn Point Road in
- 2 - Mashpee. The Trust also claims ownership in the land at the end
of Punkhorn Point Road.1 Gooseberry Island is separated from the
mainland by a channel that ranges from forty to eighty feet between
mean low and high tides. At low tide, the channel is less than
two feet deep, and Gooseberry Island can be accessed by wading
across the channel. Prior to the Trust's current ownership of
Gooseberry Island, it was used primarily as a camp for hunting and
fishing.
A. 2013 Variance Applications
Beginning in 2013, the Trust sought to construct a
single-family residence on Gooseberry Island; this endeavor was
subject to the Town's zoning bylaws. Per the zoning bylaws,
Gooseberry Island is located in an R-3 residential zone and -- as
is relevant to the instant appeal -- any residence constructed by
the Trust would be required to have at least 150 feet of frontage
on a street and an unobstructed paved access roadway within 150
feet. Gooseberry Island is entirely surrounded by water and thus
1 The Trust's alleged ownership in the land at the end of Punkhorn Point Road emanates from SN Trust. In October 2014, the Town filed a complaint in the Massachusetts Land Court challenging SN Trust's right, title, or interest to the land ("Title Dispute Action"). The Land Court entered judgment in favor of SN Trust and affirmed its ownership to the land. The Town has appealed the Land Court's decision. Because the distinction between SN Trust's ownership of the land at the end of Punkhorn Point Road versus Gooseberry Island Trust's ownership of Gooseberry Island is immaterial for purposes of the instant appeal, for ease of discussion, our reference to "the Trust" encompasses both the SN Trust and/or the Gooseberry Island Trust.
- 3 - does not have any frontage on a street and is located more than
150 feet away from a paved roadway.
To enable construction of a single-family residence on
Gooseberry Island, the Trust applied for variances from the Board
on August 29, 2013, seeking relief from the frontage and roadway
access requirements ("2013 Variance Applications"). The Board
denied the 2013 Variance Applications (the "2013 Variance
Decisions"). The 2013 Variance Decisions detailed that some Board
members expressed concerns about access to Gooseberry Island in
the event of an emergency, and that the Board ultimately determined
granting the relief sought "would not advance the Town's interest
in maintaining the public safety . . . [and] would in fact derogate
from the underline [sic] purpose and intent of the Zoning By-laws."
The 2013 Variance Decisions did not indicate whether they were
made with or without prejudice.
B. Bridge Proposals
In an apparent effort to address the Board's concerns
with emergency access to Gooseberry Island and public safety, on
March 14, 2014, the Trust filed a Notice of Intent with the Mashpee
Conservation Commission ("MCC"). The Notice of Intent proposed to
construct a timber bridge to span between the end of Punkhorn Point
Road and Gooseberry Island. The proposed timber bridge would
provide vehicular and pedestrian access to Gooseberry Island.
- 4 - Throughout the course of public hearings on the Trust's
Notice of Intent, the Mashpee Wampanoag Tribe ("Tribe") opposed
the timber bridge. The Tribe held a shellfish grant from the Town
"valid through 2027 and occup[ying] the entirety of the tidal creek
between the Mashpee mainland at Punkhorn Point Road and Gooseberry
Island." The Tribe maintained that construction of the timber
bridge would result in significant environmental impact to the
shellfish beds and permanent loss of shellfish habitat.
The MCC rejected the Notice of Intent without prejudice,
and, on February 11, 2015, it denied the proposed timber bridge
construction under the Massachusetts Wetland Protection Act, Mass.
Gen. Laws ch. 131, § 40, and the Mashpee Wetlands Protection Bylaw.
The Trust promptly filed a request for superseding review with the
Massachusetts Department of Environmental Protection ("DEP").
DEP similarly denied the proposed timber bridge, finding that "the
installation of sixteen 14-inch diameter piles within [the] salt
marsh would destroy 17.1 square feet of salt marsh and that the
shading impacts from the bridge decking would have an adverse
effect on the productivity of the salt marsh." The Trust appealed
DEP's superseding denial of the timber bridge to the Office of
Appeals and Dispute Resolution.
The Trust requested an adjudicatory hearing before the
Office of Appeals and Dispute Resolution and in the interim
conferred with DEP about replacing the proposed timber bridge with
- 5 - a steel bridge. The steel bridge purportedly would remove the
pilings from the salt marsh area and allow better light
penetration. DEP appeared to support the construction of a steel
bridge, advising the Trust that the revised design complied with
applicable regulations and was entitled to approval under the
Wetlands Protection Act. DEP viewed the design changes as
permissible pursuant to the Plan Change Policy.2
The Office of Appeals and Dispute Resolution held an
evidentiary hearing on the Trust's appeal on December 7, 2015, and
DEP thereafter filed a post-hearing memorandum stating its support
for the Trust's "request for a Final Order of Conditions" and that
the Trust's appeal should be granted. The MCC opposed DEP's
request and argued that its review of the steel-bridge design
"improperly circumvented the Plan Change Policy requirement of
[thorough] local review."
The Office of Appeals and Dispute Resolution issued a
final decision -- which was adopted by the Commissioner of DEP on
June 22, 2017 -- finding that the steel-bridge proposal could not
be considered under the Plan Change Policy because "the steel
bridge is substantially different than the timber bridge and
increases wetlands impacts to Salt Marsh and Land Containing
2 Under the Plan Change Policy, insubstantial changes to a Notice of Intent may be reviewed by DEP as a part of the appeal review, but substantial changes require a party to file a new Notice of Intent.
- 6 - Shellfish." Accordingly, the Office of Appeals and Dispute
Resolution and DEP concluded that they could not review the
steel-bridge proposal as a part of the timber-bridge appeal and
that the Trust instead was required to file a new Notice of Intent
with the MCC. The Trust then appealed that decision all the way
to the Massachusetts Appeals Court, which ultimately affirmed the
Office of Appeals and Dispute Resolution's decision (the "DEP
Appeal"). Haney v. Dep't of Env't Prot., 173 N.E.3d 55 (Mass.
App. Ct. 2021) (unpublished table decision).
C. 2018 Variance Applications
On November 9, 2018, the Trust once more applied to the
Board for variances to enable construction of a single-family
residence and again sought relief from the frontage and access
requirements of the zoning bylaws ("2018 Variance Applications").
In an effort to address the perceived reason behind the Board's
denial of the 2013 Variance Applications, the Trust provided the
Board with a "2014 plan depict[ing] a bridge and Gooseberry
Island." The single-lane bridge would span between the end of
Punkhorn Point Road and Gooseberry Island. The Trust stated that
the bridge would provide pedestrian and vehicular access to
Gooseberry Island, including access by emergency vehicles.
The Board published written decisions unanimously
denying the 2018 Variance Applications ("2018 Variance
Decisions"). These written decisions are the only evidence in the
- 7 - record of the Board's reasons for denying the 2018 Variance
Applications. The 2018 Variance Decisions detail what transpired
at the December 12, 2018 public hearing on the 2018 Variance
Applications and reveal that part of the Board's discussion focused
on whether "the bridge needs to be approved prior to building on
the lot." The Trust's attorney acknowledged that the bridge had
been through the DEP hearing process and was denied, but that the
decision was under appeal.
In response to a Board member's concern that the Board
did not have the authority to review and approve a bridge, the
Trust's attorney suggested that the Board could grant the 2018
Variance Applications but condition the approval upon a bridge
being built. At least one Board member expressed discomfort "with
conditioning anything for these variance requests."
The Board closed the public comment session and
unanimously voted to deny the 2018 Variance Applications. The
2018 Variance Decisions state that "[t]he Board, upon review of
the testimony and evidence, determined that the proposed
[v]ariance[s] would not advance the Town's interest in maintaining
the public safety . . . [and] would in fact derogate from the
underline [sic] purpose and intent of the Zoning By-laws." The
2018 Variance Decisions did not indicate whether they were made
with or without prejudice.
- 8 - D. The Present Action
On April 29, 2021, Haney commenced the present action
against the Town and the Board, seeking a declaratory judgment
that the defendants' actions constituted uncompensated taking of
property.3 The complaint asserted two counts against the
defendants: (1) violation of the Fifth Amendment of the U.S.
Constitution due to an unconstitutional taking and (2) violation
of the Massachusetts Constitution due to inverse condemnation.
The defendants moved to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim. The
defendants argued that Haney's claims were not ripe for
adjudication because the Trust never applied to build a steel
bridge.
The district court granted the defendants' motion to
dismiss the complaint. The district court concluded that that the
claims were not ripe for review because "[t]he facts as alleged in
3 The Trust appealed the denial of the 2013 Variance Applications and then the denial of the 2018 Variance Applications to the Massachusetts Superior Court pursuant to Mass. Gen. Laws ch. 40A, § 17, which permits judicial review of the Board's decisions. According to the record on appeal, the parties requested that the Superior Court stay the zoning appeals until the Title Dispute Action and the DEP Appeal were fully resolved. However, on April 19, 2023, the Trust filed a motion with the Superior Court "to reschedule the date for the pre-trial conference" and, as a supporting basis for its request, relied on the instant federal action because, it contends, "[a] final decision in the federal appellate proceeding may obviate the need for th[e Superior Court] proceeding and result in voluntary dismissal of this matter."
- 9 - the complaint fail to establish that there has been a final
government decision on the Trust's steel[-]bridge proposal."
Specifically, the district court found that the Trust never
followed through with filing a new Notice of Intent with the MCC
for construction of a steel bridge, even though "DEP expressed
support for this proposal." The district court reasoned that
because the Trust never "filed any application seeking a variance
based on the steel[-]bridge proposal" and because pursuing the
steel-bridge proposal would not be futile, the litigation was not
ripe. Haney timely appealed the district court's dismissal of the
complaint.
II. Discussion
On appeal, Haney argues that the district court erred by
dismissing the complaint as unripe. "We review de novo the
dismissal of a takings claim on ripeness grounds." García-Rubiera
v. Calderón, 570 F.3d 443, 451 (1st Cir. 2009).4 "The Takings
Clause of the Fifth Amendment, which applies to the states through
4 Haney sought a declaratory judgment "as to the constitutionality and legality of [the Town's] actions." "[A]ppellate review of discretionary decisions not to grant declaratory relief is generally for abuse of discretion." Verizon New England, Inc. v. Int'l Brotherhood of Elec. Workers, Local No. 2322, 651 F.3d 176, 187 (1st Cir. 2011). Here, however, de novo review is appropriate because the district court did not deny the request for declaratory relief, but rather found it lacked jurisdiction to entertain the request in the first instance. See In re Fin. Oversight & Mgmt. Bd. for P.R., 919 F.3d 638, 644 n.3 (1st Cir. 2019).
- 10 - the Fourteenth Amendment, prohibits the taking of private property
for public use without just compensation." Franklin Mem'l Hosp.
v. Harvey, 575 F.3d 121, 125 (1st Cir. 2009). Because Haney
asserts that the defendants' actions unconstitutionally regulate
how he may use Gooseberry Island, we focus our inquiry under the
law of regulatory takings. See id. (explaining that the Takings
Clause guards not only against physical takings but also against
"certain uncompensated regulatory interferences with a property
owner's interest in his property").
"A regulatory taking transpires when some significant
restriction is placed upon an owner's use of [its] property for
which justice and fairness require that compensation be given."
Phillip Morris, Inc. v. Reilly, 312 F.3d 24, 33 (1st Cir. 2002)
(cleaned up). Haney bears the burden of proving that the
regulatory takings claim is ripe before a federal court has
jurisdiction over the claim. Downing/Salt Pond Partners v. R.I.
& Providence Plantations, 643 F.3d 16, 20 (1st Cir. 2011).
A. Finality
"When a plaintiff alleges a regulatory taking in
violation of the Fifth Amendment, a federal court should not
consider the claim before the government has reached a 'final'
decision." Pakdel v. City & Cnty. of San Francisco, 141 S. Ct.
2226, 2228 (2021) (per curiam) (quoting Suitum v. Tahoe Reg'l Plan.
Agency, 520 U.S. 725, 737 (1997)). This finality requirement "is
- 11 - relatively modest[:] [a]ll a plaintiff must show is that there is
no question about how the regulations at issue apply to the
particular land in question." Id. at 2230 (cleaned up). To do
so, "a developer must at least resort to the procedure for
obtaining variances and obtain a conclusive determination by the
[Board] whether it would allow the proposed development in order
to ripen its takings claim." Suitum, 520 U.S. at 737 (cleaned
up).
Haney argues that his claims are ripe for review because
the Trust twice applied to the Board for variances and, each time,
its requests were denied. He advances three arguments as to why
the Board's 2018 Variance Decisions constitute a final decision:
(1) the Trust could not get other approvals for construction of
the bridge without those variances first being granted; (2) in
making its decision on the 2018 Variance Applications the Board
should not have considered whether a bridge permit was -- or would
be -- issued by the MCC; and (3) the plain language of the 2018
Variance Decisions shows that the Board reached a final decision.
We quickly dispose of the first two contentions.
Under the State Wetlands Protection Act, DEP's
regulations, and Mashpee's local wetlands ordinance, any notice of
intent seeking a permit to build a bridge would need to be
accompanied by permits, variances, and approvals required "with
respect to the proposed activity." See Mass. Gen. Laws ch. 131,
- 12 - § 40 (emphasis added); 310 Mass. Code Regs. § 10.05(4)(e). The
relevant proposed activity for the notice of intent is construction
of a bridge to span from the end of Punkhorn Point Road to
Gooseberry Island. Variances for the construction of a
single-family residence on Gooseberry Island are not, for purposes
of the filing of a notice of intent, related to construction of
the bridge. Accordingly, the assertion that the Trust could not
obtain approval for construction of the bridge without the Board
first granting it variances for relief from frontage and roadway
access requirements is mistaken.
Haney's second argument is similarly unavailing.
Pursuant to the Town's zoning bylaws and the Zoning Act, the Board
is vested with the authority "[t]o hear and decide petitions for
variances." Mass. Gen. Laws ch. 40A, § 14. Despite any contention
to the contrary, the Board did not inappropriately consider or
determine any matters outside its jurisdiction. The issue of
whether the MCC would issue a permit for construction of the bridge
was raised by the Trust's own attorney when he invited the Board
to "act on [the] request for relief, and condition[] it upon the
bridge being built." Indeed, the Board is statutorily authorized
to "impose conditions, safeguards and limitations" on the grant of
a variance. Mass. Gen. Laws ch. 40A, § 10. Relative to this
power, the Board received evidence about construction of a bridge
that fell under the jurisdiction of the MCC in the first instance.
- 13 - However, the Board never determined whether that permit should or
should not issue. Accordingly, the Board did not exceed its
jurisdiction or consider evidence it should not have.
We now turn to Haney's final argument -- that the plain
language of the 2018 Variance Decisions show that the Board reached
a final decision. He contends that the district court misconstrued
the 2018 Variance Decisions because the Board never explicitly
found that its decision to deny the variances were premised on the
Trust's failure to have an approved steel bridge in place.
The district court concluded that "[t]he facts as
alleged in the complaint fail to establish that there has been a
final government decision on the Trust's steel[-]bridge proposal"
and, therefore, the Trust's claim was not ripe. On appeal, Haney
challenges this finding because he maintains that the 2018 Variance
Applications were denied because the Board found that the granting
of the variances would derogate from the underlying purpose and
intent of the zoning bylaws, not because the Trust did not have an
approved steel bridge in place.
In support of this contention, Haney draws a distinction
between "the statements of individual [B]oard members with the
operative decision." He maintains that the questions or concerns
expressed by the Board members during the hearing regarding the
absence of an approved steel bridge cannot inform our understanding
- 14 - of the reason for denying the variances.5 Rather, Haney argues,
the 2018 Variance Decisions delineate that the Board denied the
2018 Variance Applications because it found that granting them
would derogate from the underlying purpose and intent of the zoning
bylaws. Haney suggests that reading the 2018 Variance Decisions
in this manner reveals that the Board reached a final decision.
The sole reason offered by Haney as to why the 2018
Variance Decisions should be read in the manner he suggests is
§ 15 of the Zoning Act, which states that the Board "shall cause
to be made a detailed record of its proceedings, indicating the
vote of each member upon each question . . . and setting forth
clearly the reason for its decision and of its official actions[.]"
Past quoting this section of the Zoning Act, the argument as to
what should be construed as the Board's "reason for its decision"
is entirely undeveloped. Haney offers no authority as to why the
discussion and statements of the Board members detailed in the
2018 Variance Decisions do not constitute the reasons for its
decision.
5 It does not escape our attention that in a January 2019 motion to consolidate the state court appeals of the 2013 Variance Decisions and the 2018 Variance Decisions, the Trust described the procedural history of the 2018 Variance Decisions as follows: "After holding a hearing on the application, the Board denied the request for variances. The [Board] declined to issue variances, in part, based upon conditional outcomes in other forums." (Emphasis added.)
- 15 - We thus see no support for the contention that we must
disregard the statements made by the Board members as recorded in
the 2018 Variance Decisions, at least when such statements are
plausibly related to the concluding explanation given by the Board
for denying the variances. That argument is underdeveloped, it is
waived, and we are not in a position to evaluate it. Indeed, it
is well-settled that "[i]t is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to
do counsel's work, create the ossature for the argument, and put
flesh on its bones." United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990). We thus decline to adopt Haney's position
regarding how the 2018 Variance Decisions should be interpreted
under Massachusetts law based on the limited argument he has
offered in support of that position.
Similarly, Haney offers no argument as to why the denial
of the 2018 Variance Applications should be interpreted as with
prejudice. The text of the 2018 Variance Decisions fails to
specify whether the denials were with or without prejudice, and
Haney does not provide us with any authority or guidance as to why
we should read the decisions as being final and with prejudice.
In sum, Haney's claim that the plain language of the
2018 Variance Decisions shows that the Board reached a final
decision on the requested relief is waived pursuant to "the settled
appellate rule that issues adverted to in a perfunctory manner,
- 16 - unaccompanied by some effort at developed argumentation, are
deemed waived." Id.
B. Futility
Haney next argues that the district court erred in
finding that applying for a steel-bridge permit would not be
futile. We have recognized "that there is a narrow 'futility
exception' to the final decision requirement for takings claims
which, on rare occasion, may excuse the submission of an
application for a variance or other administrative relief."
Gilbert v. City of Cambridge, 932 F.2d 51, 60 (1st Cir. 1991)
(quoting S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498,
504 (9th Cir. 1990)). If the prospect of an adverse decision is
certain (or nearly so) "federal ripeness rules do not require the
submission of further and futile applications." Palazzolo v. Rhode
Island, 533 U.S. 606, 626 (2001).
This futility exception -- which has been part of our
caselaw for three decades -- was recently endorsed by the Supreme
Court in Pakdel. 141 S. Ct. at 2230. In addressing the state-forum
finality requirement, the Court held that a landowner only needs
to show "that there is no question about how the regulations at
issue apply to the particular land in question." Id. (cleaned
up). The finality requirement is therefore met once it is clear
to the federal courts that the initial decisionmaker has reached
a "definitive position on the issue." Id. at 2230 (quoting
- 17 - Williamson Cnty. Reg'l Plan. Comm'n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 193 (1985)).
Through Pakdel, our caselaw's futility exception is now
simply part and parcel of the finality requirement. Here, Haney
argues that the finality requirement is met because the Trust
should not be required to submit "applications for a bridge permit
when the denial of any application for a variance from the [Board]
is a certainty." Haney alleges that the Trust submitted the 2018
Variance Applications without a bridge approval in place because
it "did not want to waste resources permitting and/or building a
bridge if the Town would not even issue a building permit due to
zoning concerns." This allegation casts doubt on Haney's argument
that the Board would most certainly deny any variances. Instead,
it makes clear that the Trust strategically chose to seek relief
from the Board without the bridge approval in place in an effort
to save resources.
Moreover, as discussed above, the Board made it clear
when considering the 2018 Variance Applications that it was
concerned with the lack of emergency vehicular access to Gooseberry
Island and felt "uncomfortable with conditioning" the variances on
a bridge that the Trust had not yet obtained approval for. The
Board has never represented that it would deny any and all variance
- 18 - applications -- even if the Trust presented applications
accompanied by an approved steel-bridge plan.6
Given this, we cannot conclude that the Board has
"committed to a position" with respect to the variances. See
Pakdel, 141 S. Ct. at 2230. The Trust still has the option to
pursue approval of the steel-bridge proposal and then present the
Board with variance applications. See id. (holding the finality
requirement met where there was no question about the government's
position and such position inflicted a concrete injury on the
plaintiff). Submission of those applications would further
clarify "the extent of development permitted by the" Town's zoning
bylaws. Palazzolo, 533 U.S. at 624. Accordingly, Haney has not
demonstrated compliance with the finality requirement.
6 Haney makes various allegations about the Town's delegation of power to the Tribe, including that the Town will not make any decisions favorable to the Trust's construction of a bridge and/or development of Gooseberry Island without the Tribe's assent. This argument does not advance the ball for Haney. The record reveals that the Tribe is primarily concerned with the effect construction of a bridge would have on the shellfish beds. The Tribe "oppose[d]" granting the 2018 Variance Applications because "[t]he bridge would interfere with their aquaculture project." However, as the Board members recognized, construction of a bridge required approval from the MCC, and the Trust failed to apply for or secure a decision regarding the steel-bridge proposal. Moreover, the "initial decisionmaker" for variances for construction of a single-family home on Gooseberry Island is the Board, and they have not reached a definitive position. See Pakdel, 141 S. Ct. at 2229-30.
- 19 - III. Conclusion
Haney must first obtain the government's conclusive and
definitive position on the application of the Town's zoning bylaws
to Gooseberry Island before proceeding in federal court. See
Pakdel, 141 S. Ct. at 2230. Having failed to do so, and for all
the reasons stated above, the judgment of the district court is
affirmed.
- 20 -