Fed. Dist. Court in MA Dismisses Takings Claim on Ripeness Grounds

This post was authored by Asad Jilani, Touro University Jacob D. Fuchsberg Law Center

Plaintiff, Matthew Haney (“Haney”), brought suit on behalf of the Gooseberry Island Trust (the “Trust”) against the Town of Mashpee’s (the “Town”) Zoning Board alleging an unconstitutional taking of private land (“Gooseberry Island”) owned by the Gooseberry Island Trust.

Gooseberry Island is an island covering four acres of land in Popponesset Bay. The property had been used as a camp for hunting and fishing. Haney claims the Trust has rights in a certain portion of the property located at the end of Punkhorn Point Road (the “Disputed Property”) through another trust, the SN Trust, which permit him access to traverse over the Disputed Property, and navigate across the water of Popponesset Bay.

In 1960, the Town zoned Gooseberry Island within the R-150 Residence zone. As a result of several amendments to the Town zoning ordinance, by 1985, the Trust need a variance to build a house on Gooseberry Island unless the Trust constructed a bridge and a road. Later, in 1998, the Town classified Gooseberry Island as “Lands of Conservation and Recreation Interest” in the Town’s Local Plan, and by 2008, it was also classified as “Private Land of Conservation Interest” within the Town’s Open Space, Conservation and Recreation Plan. On May 23, 2007, the Mashpee Wampanoag Tribe gained federal recognition and entered into negotiations with the Town of Mashpee for the execution of an intergovernmental agreement between the two parties to use the area known as the Wampanoag Shellfish Farms located in Popponesset Bay within the immediate vicinity of Gooseberry Island and the Disputed Property.

Nevertheless, on August 29, 2013, the Trust applied for three variances to build a new house on Gooseberry Island, including variances for street frontage, and to install an unobstructed paved access roadway. After the hearing, the Zoning Board voted 4 to 1 to deny all 3 variances, noting public safety concerns from the lack of a bridge between Gooseberry Island and mainland. To address the Zoning Board’s safety concerns, the Trust filed a notice of intent (“NOI”) with the Town Mashpee Conservation Commission (“Commission”), proposing to construct a timber bridge and driveway to provide vehicle access to Gooseberry Island. Several hearings were held on the matter where the Tribe opposed the bridge because they believed that it would negatively impact the Tribe’s shellfish grant funding for the Wampanoag Shellfish Farms. The Tribe also took the position that any approvals for the bridge would violate this intergovernmental agreement. Aside from the Tribe’s opposition to the bridge, the Town’s independent consultant noted that the proposal would not comply with the state Wetlands Protection Act (“WPA”). As a result, the Commission denied the proposed timber bridge under both the WPA and the Town Wetlands Protection Bylaws.

Following the Commission’s denial, the Trust filed a request for superseding review with the Massachusetts Department of Environmental Protection (“DEP”). The DEP denied the Trust’s proposal on the grounds that the proposed diameter piles to be installed in the salt marsh would have an adverse impact on the salt marsh area. The Trust requested that the DEP issue a variance from the WPA, and appealed the DEP’s denial to the Office of Appeals and Dispute Resolution (“OADR”). Prior to the OADR hearing, the Trust revised the bridge design to replace the disputed timber bridge with a steel bridge to eliminate the environmental issues raised by the DEP. The DEP confirmed that the proposed changes would address the environmental concerns that resulted in the denial. Thereafter, the Commission filed a post OADR hearing memorandum alleging that the Trust’s newly filed plan improperly circumvented the Plan Change Policy requirements of thorough local review and requested that the matter be remanded back to the Commission.

On June 6, 2017, the OADR issued a Recommended Final Decision finding that the revised plan could not be reviewed under the DEP’s plan change policy because the steel bridge proposed was substantially different from the original timber bridge proposal and must be resubmitted to the Commission under a new NOI for consideration. On June 22, 2017, the DEP Commissioner adopted this decision (the “DEP’s Final Decision”).

The Trust filed an action under the Massachusetts Administrative Procedure Act seeking review of the DEP’s Final Decision. The court upheld the determination.

Thereafter, in 2018, the Trust filed a new variance application with the Town Zoning Board to construct a single-family home at the property without having first reapplied to the Commission to obtain approval for the new steel bridge, which was denied by the Town Zoning Board absent approval for the new bridge. The Trust then filed an action under the Takings Clause alleging, in part, that any attempts to obtain approval for the steel bridge would be pointless. Absent consent from the Tribe to the bridge construction, the Town would never approve the bridge construction because any approval would be a violation of its intergovernmental agreement with the Tribe.

The Trust further argued that under the Takings Clause “private property [shall not] be taken for public use, without just compensation.” Therefore, when governmental acts, such as those in this case, deprive a property owner of all economically beneficial uses of their property, the owner has suffered a taking. Accordingly, since the Town Zoning Board denied the variance, the Trust opined that there was a taking of its property that prevented the Trust from developing the property “for a home or any other economically viable, developmental use.”

Nonetheless, because the Trust had failed to file a new NOI for the steel bridge, the Town had not yet rendered a final determination denying approval of the steel bridge that would serve as the basis of review for the takings claim. Thus, the Court concluded that there had been no final decision that could be considered for takings clause purposes. Therefore, the Defendants’ motion to dismiss the Trust’s takings claim was granted.

Haney v. Town of Mashpee, 594 F. Supp. 3d 151, 160 (D. Mass. 2022)