Haney v. Town of Mashpee

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

MATTHEW HANEY, as Trustee of the )

Gooseberry Island, )

)

Plaintiff, )

) Civil Action No.

v. ) 24-12562-BEM

)

TOWN OF MASHPEE, et al., )

)

Defendants. )

_______________________________________)

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTION TO DISMISS

MURPHY, J.

Defendants (the Town of Mashpee and independent members of its Zoning Board of

Appeals) have moved to dismiss Plaintiff’s action for regulatory taking. For the reasons stated

herein, the motion is DENIED. This case presents issues not suitable for disposition on a motion

to dismiss.

The Court notes, however, that this case appears to turn on facts that may be briefed with

little, if any, additional discovery. Accordingly, the parties are directed to confer and propose an

expedited schedule for limited discovery and summary judgment and/or trial on the Penn Central

factors, as discussed further below.

I. Relevant Background

Plaintiff1 owns a small island (“Gooseberry Island”) in Popponesset Bay in the Town of

Mashpee, Massachusetts. Dkt. 1 (“Compl.”) ¶¶ 1, 66, 72–73. Plaintiff has sought to build a

single-family dwelling on that property. Id. ¶¶ 104, 143. However, such building would violate

Mashpee’s zoning bylaws, unless exempted by a variance. Id. ¶¶ 90–99. Plaintiff’s several

requests for variances have been denied based on purported safety concerns. Id. ¶¶ 104–06, 143,

154–55. Plaintiff alleges that these concerns are merely pretextual and that Defendants are

engaged in a protracted effort to try to squeeze him off the land. Id. ¶¶ 11–32.

The dispute over Gooseberry Island has resulted in more than a decade of litigation. See

Haney v. Mashpee Zoning Bd. of Appeals, 2024 WL 3106198 (Mass. Super. Mar. 15, 2024)

(affirming denial of zoning variance based on memorandum docketed in Emmelluth v. Mashpee

Zoning Bd. of Appeals, 2024 WL 3106196 (Mass. Super. Mar. 13, 2024)); Haney as Tr. of

Gooseberry Island Tr. v. Town of Mashpee, 594 F. Supp. 3d 151 (D. Mass. 2022) (dismissing as

unripe takings claim based on denial of variance), aff’d, 70 F.4th 12 (1st Cir. 2023), cert. denied

sub nom. Haney as Tr. of Gooseberry Island Tr. v. Town of Mashpee, Mass., 144 S. Ct. 564 (2024);

see also Haney v. Dep’t of Env’t Prot., 100 Mass. App. Ct. 1105, 2021 WL 3502072 (2021)

(affirming decision to deny Plaintiff a permit to build a bridge to the at-issue property).

On October 4, 2024, Plaintiff filed the current lawsuit, alleging a taking of property without

just compensation under both the U.S. and Massachusetts constitutions. Compl. ¶¶ 1, 184–212.

On February 18, 2025, Defendants moved to dismiss. Dkt. 11.

1 To clarify, Plaintiff Matthew Haney sues in his capacity as trustee of the Gooseberry Island Trust.

Compl. ¶ 2. Haney has a trustee predecessor, Robert D. Emmeluth, who appears to have filed the first variance

application. See Dkt. 1-4 at 30. For simplicity, the Court refers to the trust and its former and present agents,

collectively, as “Plaintiff.”

II. Legal Standard

Courts analyzing claims under Federal Rule 12(b)(6) must determine whether a plaintiff’s

factual allegations—disregarding all “conclusory” statements—“state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is

not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (internal cites and quotations omitted). “A complaint should be

dismissed under Rule 12(b)(6) ‘only if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.’” LaLonde v. Textron, Inc., 369 F.3d

1, 6 (1st Cir. 2004) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

III. Legal Framework

A regulatory taking occurs where the “government regulation of private property” is “so

onerous that its effect is tantamount to a direct appropriation or ouster.” Lingle v. Chevron U.S.A.

Inc., 544 U.S. 528, 537 (2005) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415

(1922)).2 Claims for regulatory takings are analyzed under the factors set forth by the Supreme

Court in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Lingle, 544

U.S. at 539. Those factors are “[t]he economic impact of the regulation on the claimant,” “the

extent to which the regulation has interfered with distinct investment-backed expectations,” and

the “character of the governmental actions.” Id. at 538–39 (quoting Penn Central, 438 U.S. at

124).

In at least two, narrow circumstances, a plaintiff may avoid the full Penn Central analysis

by establishing a categorical, per se taking: either, first, “where government requires an owner to

2 The Massachusetts Supreme Judicial Court has “consistently employed Federal takings analysis in

examining [takings] claims under” Massachusetts law. Fitchburg Gas & Elec. Light Co. v. Dep’t of Pub. Utilities,

467 Mass. 768, 775 n.8 (2014). Accordingly, the Court will consolidate its analysis under federal law.

suffer a permanent physical invasion of her property—however minor,” id. at 538 (citing Loretto

v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)); or, second, where regulations

“completely deprive an owner of ‘all economically beneficial us[e]’ of [his] property,” id.

(emphasis in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)

(brackets added in Lingle)).

IV. Discussion

A. Plaintiff’s Property Interest

There is threshold disagreement as to the specific property interest alleged in the complaint.

Defendants read the complaint as asserting a right to the issuance of a variance. See Dkt. 12 at 6– 8.

Plaintiff looks, instead, to his general interest in the land. See Dkt. 26 at 10–12. The difference

matters because Plaintiff has no vested interest in the zoning board’s discretionary decision, see

Dkt. 12 at 7 (citing, inter alia, Roslindale Motor Sales, Inc. v. Police Com’r of Bos., 405 Mass.

79, 82 (1989)), whereas Plaintiff does have an interest in property owned in fee simple, see Dkt. 26

at 5–6.

Plaintiff has the better argument. See Barth v. City of Peabody, 2017 WL 114403, at *3– 4

(D. Mass. Jan. 11, 2017) (construing denial of variance as potential taking of land, rather than of

the variance itself); Smyth v. Conservation Comm’n of Falmouth, 94 Mass. App. Ct. 790, 797

(2019) (analyzing “regulatory scheme” which generated the alleged taking, rather than just the

decision to deny a variance).3 To frame the issue otherwise would give the government a perennial

3 Defendants cite Roslindale, 405 Mass. at 82, for the proposition that, “[w]hen the use of land is dependent

upon the issuance of a permit or approval, the applicant cannot establish a property interest in that use unless and until

they have a vested interest in the approval.” Dkt. 12 at 7. But that is not the holding. The “permit or approval” at

issue in Roslindale was a license to buy and sell used cars. Roslindale, 405 Mass. at 79. The commissioner’s denial

of that license did not concern the land but rather whether the applicant-company’s president was a “suitable person”

to hold such a license. Id. at 81. The opinion never addresses whether the Roslindale plaintiff owned any of the real

estate presumably implicated by the denial, nor does it treat such land as the at-issue property for purposes of its

takings analysis.

loophole—any regulation on land could escape constitutional review, so long as it is subject to a

discretionary variance scheme.

B. Penn Central Factors

Having identified Plaintiff’s protected property interest, the Court turns to the Penn Central

factors to determine whether Plaintiff has stated a claim.4 From here, Defendants face an uphill

battle. As Plaintiff correctly points out, Penn Central and its progeny “eschew[] any set formula

for determining how far is too far” when it comes to government regulations, “preferring to engage

in essentially ad hoc, factual inquiries.” Lucas, 505 U.S. at 1015 (quoting Penn Central, 438 U.S.

at 124) (cleaned up). All three Penn Central factors must be considered, and none is dispositive.

FBT Everett Realty, LLC v. Massachusetts Gaming Comm’n, 489 Mass. 702, 709 (2022)

(analyzing claim under federal constitution). Given the flexible nature of this multi-factor test and

the forgiving standard applied on Rule 12 motions, the Court is simply unable to say that “it is

clear that no relief could be granted under any set of facts that could be proved consistent with

[Plaintiff’s] allegations.” LaLonde, 369 F.3d at 6.

In particular, the Court notes that Plaintiff clearly pleads, at least, significant economic

impact. Compl. ¶¶ 189–92. The complaint also raises specific issues concerning the character of

the taking. See, e.g., id. ¶¶ 11–32.5 Defendants’ argument is strongest regarding Plaintiff’s

4 Plaintiff also suggests that his allegations can constitute a per se taking under Lucas, Dkt. 26 at 17 n.8, i.e.,

a situation wherein “all economically beneficial or productive use” of the property has been regulated away. Lucas,

505 U.S. at 1015 (emphasis added). Because Plaintiff’s claims survive under Penn Central, the Court need not decide

whether they would qualify for categorical protection under Lucas. Nevertheless, the Court notes that Plaintiff

specifically alleges that the property is 98.9% depreciated by the regulation. Compl. ¶ 192. While high, 98.9% is

obviously not 100%. See Lucas, 505 U.S. at 1019 n.8 (clarifying that 95% diminution would not qualify for categorical

protection); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan Agency, 535 U.S. 302, 330 (2002) (“[Under Lucas,]

[a]nything less than a ‘complete elimination of value,’ or a ‘total loss,’ . . . would require the kind of analysis applied

in Penn Central.” (quoting Lucas, 505 U.S. at 1019–20)).

5 The Court takes judicial notice of the findings made by Judge Perrino in Emmelluth, 2024 WL 3106196,

including that the zoning board “appropriately considered” the issues and “focus[ed] on the public good.” Id. at *2;

see also Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008) (“A court may consider matters of public record in

investment-backed expectations (or lack thereof). See Dkt. 12 at 11–12. Indeed, Plaintiff’s

complaint says nothing about what anyone, at any point, has paid for the property, its upkeep, or

its development.6 Nevertheless, this omission is insufficient to defeat Plaintiff’s takings claims at

this stage. See FBT Everett, 489 Mass. at 709.

V. Conclusion

Accordingly, Defendants’ motion to dismiss, Dkt. 11, is DENIED.

Moreover, the Court believes that the questions in this case are clear, and the record is

advanced—undoubtedly a product of the multiple administrative and judicial actions the dispute

has precipitated over the past decade. See p. 2, supra. Accordingly, pursuant to Federal Rules 16

and 42 and Local Rules 16.1 and 16.3, the parties are directed to confer and propose an expedited

schedule for limited discovery and summary judgment and/or trial on the Penn Central factors.7

In their required joint statement, see Local Rule 16.1, the parties should indicate precisely what

additional discovery, if any, is needed to determine whether an unconstitutional taking has

occurred and how long that discovery should take, with an eye toward efficient resolution.

So Ordered.

/s/ Brian E. Murphy

Brian E. Murphy

Dated: April 17, 2025 Judge, United States District Court

resolving a Rule 12(b)(6) motion to dismiss. Matters of public record ordinarily include documents from prior state

court adjudications.” (internal quotation marks and citation omitted)). Nevertheless, the Court does not treat these

findings as conclusive for its takings analysis, particularly given the “substantial deference” that the Superior Court

was obliged to show to the zoning board’s decision. See Emmelluth, 2024 WL 3106196, at *2.

6 Defendants are mistaken, see Dkt. 12 at 11–12, however, that such investments are limited to those made

against the backdrop of current regulation. See Murr v. Wisconsin, 582 U.S. 383, 398 (2017) (“A valid takings claim

will not evaporate just because a purchaser took title after the law was enacted.” (citing Palazzolo v. Rhode Island,

533 U.S. 606, 627 (2001))).

7 To the extent Plaintiff maintains any other takings theory of liability, including under Lucas, those theories

should also be briefed.