First Circuit Court of Appeals Affirms Dismissal of Takings Claim Based on Ripeness

This post was authored by Matthew Loescher, Esq.

Matthew Haney, the Trustee of the Gooseberry Island Trust, brought a complaint against the Town of Mashpee and its Zoning Board of Appeals alleging an unconstitutional taking of property. The district court dismissed the complaint without prejudice for want of jurisdiction on ripeness grounds. In this appeal, the court was asked to consider whether the government had reached a “final” decision on the Trust’s request for variances, and whether requiring the Trust to submit further applications to the Town would be futile.

Haney first contended that his claims were ripe for review because the Trust twice applied to the Board for variances and its requests were denied both times. 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.” Variances for the construction of a single-family residence on Gooseberry Island were not, for purposes of the filing of a notice of intent, related to construction of the bridge. In light of this, the court found 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 was mistaken. The record reflected that the Board received evidence about construction of a bridge that fell under the jurisdiction of the MCC in the first instance; however, the Board never determined whether that permit should or should not be issued. Thus, the Board did not exceed its jurisdiction or consider evidence it should not have. Moreover, the text of the 2018 Variance Decisions failed to specify whether the denials were with or without prejudice, and Haney did not provide any authority or guidance as to why we the court should construe the decisions as being final and with prejudice.

Haney next claimed that the district court erred in finding that applying for a steel-bridge permit would not be futile. The record indicated that 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 court rejected this contention as the record reflected that the Board had not represented that it would deny any and all variance applications – even if the Trust presented applications were accompanied by an approved steel-bridge plan. Accordingly, Haney failed to demonstrate compliance with the finality requirement.

Haney v Town of Mashpee, 2023 WL 3834051 (1^st Cir CA 6/6/2023)