Petition for Writ of Certiorari — Matthew Haney, as Trustee of the Gooseberry Island Trust, Petitioner v. Town of Mashpee, Massachusetts, et al.

No. _______

In The

Supreme Court of the United States

____________________

MATTHEW HANEY,

as Trustee of the Gooseberry Island Trust,

Petitioner,

v.

TOWN OF MASHPEE; MASHPEE ZONING

BOARD OF APPEALS; JONATHAN FURBUSH;

WILLIAM A. BLAISEDELL; SCOTT GOLDSTEIN;

NORMAN J. GOULD; BRADFORD H. PITTSLEY;

SHARON SANGELEER, in their official capacity

as members of the Zoning Board of Appeals

of the Town of Mashpee,

____________________

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

PAUL REVERE, III

JEREMY TALCOTT*

Law Offices of

*Counsel of Record

Paul Revere, III

DEBORAH J. LA FETRA

226 River View Lane

ROBERT H. THOMAS

Centerville, MA 02601

Pacific Legal Foundation

Telephone: (508) 237-1620 555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JTalcott@pacificlegal.org

Counsel for Petitioner

i

Question Presented

Matthew Haney sought to build a home on a small

undeveloped

island

in

Popponesset

Bay,

Massachusetts, zoned by the Town of Mashpee

exclusively for single-family residential use. But

building a home requires a variance from the Town’s

setback and frontage requirements. Haney twice

sought this variance, and twice the Town rejected his

requests. The Town’s unqualified position that Haney

could not obtain the necessary variance to build his

home satisfies the usual indicators that a takings

claim is justiciable. Suitum v. Tahoe Reg’l Plan.

Agency, 520 U.S. 725, 736–37 (1997) (development

plan plus one request for a variance ripens a takings

claim). But when Haney sought just compensation in

federal court, the First Circuit held the case does not

present a ripe controversy because the Town

suggested it may grant a third application for a

variance if Haney first secured permission from the

State of Massachusetts to build a steel bridge to the

island.

The question presented is:

Can the government evade adjudication of

constitutional takings claims on prudential ripeness

grounds—after it has twice definitively denied

necessary variances—by indicating that it may

consider a third variance request if the property

owner first obtains an additional permit from a

different government agency?

ii

Parties to the Proceedings and Rule 29.6

Matthew Haney, as Trustee of the Gooseberry

Island Trust, was the Plaintiff and Appellant below.

The Town of Mashpee and Mashpee Zoning Board

of Appeals are public entities.

Jonathan Furbush, William A. Blaisedell, Scott

Goldstein, Norman J. Gould, Bradford H. Pittsley, and

Sharon Sangeleer are members of the Zoning Board of

Appeals of the Town of Mashpee, sued in their official

capacities.

None of the parties are corporate entities.

Related Proceedings

Haney, as Trustee of Gooseberry Island Trust v.

Town of Mashpee, No. 22-1446, 70 F.4th 12 (1st Cir.

June 6, 2023).

Haney, as Trustee of Gooseberry Island Trust v.

Town of Mashpee, No. 21-10718-JGD, 594 F.Supp.3d

151 (D. Mass. Mar. 22, 2022).

Haney v. Department of Environmental

Protection, No. 19-P-1395, 100 Mass.App.Ct. 1105,

173 N.E.3d 55 (Aug. 10, 2021).

Haney v. Department of Environmental

Protection, No. 1772CV00340, 2019 WL 13062016

(Mass. Super. Ct. Aug. 20, 2019).

Emmelluth, Trustee of the Gooseberry Island

Trust v. Mashpee ZBA, No. 1372CV00579 (Barnstable

Cnty. Super. Ct., Mass., matter taken under

advisement on Oct. 11, 2023).

iii

Wolpe v. Haney as Trustee of SN Trust, Nos. 14

Misc. 487495, 14 Misc. 486868, 2019 WL 5090528

(Mass. Land Ct., Barnstable Cnty. Oct. 10, 2019)

iv

Table of Contents

Question Presented...................................................... i

Parties to the Proceedings and Rule 29.6 .................. ii

Related Proceedings.................................................... ii

Table of Authorities ................................................... vi

Petition for a Writ of Certiorari ................................. 1

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional Provisions at Issue ............................. 1

Introduction and Summary of Reasons

for Granting the Petition....................................... 2

Statement of the Case ................................................ 7

A. Gooseberry Island and Haney’s proposal

to build a single-family home .......................... 7

B. Procedural history .......................................... 11

Reasons for Granting the Petition ........................... 13

I.

The Decision Below Conflicts with

This Court’s Ripeness Doctrine ...................... 15

II. Lower Courts Conflict on What Ripens

Takings Cases When Permits Are

Required from Multiple Agencies ................... 19

III. This Important Question Can Be

Resolved Only By This Court .......................... 25

Conclusion ................................................................. 32

v

Appendix

Opinion, U.S. Court of Appeals for the

First Circuit, filed June 6, 2023 .......................... 1a

Order of Dismissal, U.S. District Court, District

of Massachusetts, filed May 6, 2022 ................. 19a

Memorandum of Decision and Order on

Defendants’ Motion to Dismiss,

U.S. District Court, District of Massachusetts,

filed March 22, 2022 .......................................... 20a

Memorandum of Decision and Order on

Defendants’ Motion for Reconsideration,

U.S. District Court, District of Massachusetts,

filed April 25, 2022 ............................................ 38a

Complaint (without exhibits),

U.S. District Court, District of Massachusetts,

filed April 29, 2021 ............................................ 41a

vi

Table of Authorities

Cases

Barber v. Charter Twp. of Springfield,

31 F.4th 382 (6th Cir. 2022) ............................ 6, 21

Batchelder v. City of Seattle,

77 Wash.App. 154 (1995)....................................... 7

Bay-Houston Towing Co., Inc. v. United States,

58 Fed.Cl. 462 (2003)....................................... 5, 26

Beach v. City of Galveston, No. 21-40321,

2022 WL 996432 (5th Cir. Apr. 4, 2022) ............. 19

Beale v. Planning Bd. of Rockland,

423 Mass. 690 (1996) ........................................... 17

Blake v. Cnty. of Kauaʻi Plan. Comm’n,

131 Haw. 123 (2013) ........................................ 6, 20

Blanchette v. Conn. Gen. Ins. Corp.

(Reg’l Rail Reorganization Act Cases),

419 U.S. 102 (1974) ....................................... 16, 30

Cath. Healthcare Int’l, Inc. v. Genoa Charter Twp.,

82 F.4th 442 (6th Cir. 2023) .......................... 28–29

Church of Our Lord and Savior Jesus Christ v.

City of Markham,

913 F.3d 670 (7th Cir. 2019) ......................... 21–22

Ciampetti v. United States,

18 Cl.Ct. 548 (1989) ............................................. 23

City of Sherman v. Wayne,

266 S.W.3d 34 (Tex. App. 2008) .......................... 27

Commonwealth v. Blair,

60 Mass.App.Ct. 741 (2004) ................................ 11

vii

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ............................................. 13

DiVittorio v. Cnty. of Santa Clara, No. 21-cv-03501,

2022 WL 409699 (N.D. Cal. Feb. 10, 2022) ........ 19

Dolls, Inc. v. City of Coralville,

425 F.Supp.2d 958 (S.D. Iowa 2006)................... 30

Donnelly v. Maryland,

602 F.Supp.3d 836 (D. Md. 2022) ....................... 26

Dunn v. County of Santa Barbara,

135 Cal.App.4th 1281 (2006)......................... 24–25

Empire Pipeline, Inc. v. Town of Pendleton,

472 F.Supp.3d 25 (W.D.N.Y. 2020) ..................... 22

F&D Cent. Realty Corp., Inc. v.

Planning Bd. of Bellingham,

86 Mass.App.Ct. 1115,

2014 WL 5150530 (2014) ..................................... 17

F.P. Dev., LLC v. Charter Twp. of Canton,

16 F.4th 198 (6th Cir. 2021) ................................ 30

First English Evangelical Lutheran Church v.

County of Los Angeles,

482 U.S. 304 (1987) ............................................. 28

Gardner v. Toilet Goods Ass’n,

387 U.S. 167 (1967) ............................................. 26

Haney v. Dep’t of Env’t Prot.,

100 Mass.App.Ct. 1105,

2021 WL 3502072 (2021) ................................. 9–10

Home Builders Ass’n of Chester & Delaware

Counties v. Commw., Dep’t of Env’t Prot.,

828 A.2d 446 (Pa. Commw. Ct. 2003) ................. 27

viii

Horne v. Dep’t of Agric.,

569 U.S. 513 (2013) ............................................... 2

HRT Enterprises v. City of Detroit, No. 12-13710,

2022 WL 3142959 (E.D. Mich. Aug. 5, 2022) ..... 28

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) ................................ 3, 15, 29

Lamar Co., LLC v. Lexington-Fayette Urban

Cnty. Gov’t, No. 5:21-043-DCR,

2021 WL 2697127 (E.D. Ky. June 30, 2021)....... 29

Laredo Vapor Land, LLC v. City of Laredo,

No. 5:19-CV-00138,

2022 WL 791660 (S.D. Tex. Feb. 18, 2022)..... 5, 27

Lexmark Int’l, Inc. v.

Static Control Components, Inc.,

572 U.S. 118 (2014) ........................................... 2, 7

Lost Tree Village Corp. v. City of Vero Beach,

838 So.2d 561 (Fla. Dist. Ct. App. 2002) ...... 23–24

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ........................................... 11

MacDonald, Sommer & Frates v. Yolo Cnty.,

477 U.S. 340 (1986) ....................................... 14, 16

MacGibbon v. Bd. of Appeals of Duxbury,

347 Mass. 690 (1964) ........................................... 17

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ........................... 4, 31

Martin v. Town of Simsbury,

735 F.App’x. 750 (2d Cir. 2018)..................... 20–21

McKeithen, Trustee of Craig E. Caldwell Trust

v. City of Richmond, No. 210389,

2023 WL 6884689 (Va. Oct. 19, 2023) ................ 14

ix

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ............................................. 13

MLC Auto., LLC v. Town of S. Pines,

No. 1:05CV1078,

2007 WL 9757526 (M.D.N.C. May 15, 2007) .... 6–7

Murphy v. New Milford Zoning Comm’n,

402 F.3d 342 (2d Cir. 2005) ................................... 3

Niz-Chavez v. Garland,

141 S.Ct. 1474 (2021) .......................................... 32

North Mill St., LLC v. City of Aspen,

6 F.4th 1216 (10th Cir. 2021) ...................... 3, 5, 19

Pakdel v. City & County of San Francisco,

141 S.Ct. 2226 (2021) .............3–4, 6, 14–16, 29–30

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ....................4, 6, 14, 16, 18–19

Pelletier v. Bd. of Appeals of Leominster,

4 Mass.App.Ct. 58 (196) ...................................... 17

Penn Central Transportation Co. v.

City of New York,

438 U.S. 104 (1978) ............................................. 11

Revitalizing Auto Communities Env’t

Response Tr. v. Nat’l Grid USA,

10 F.4th 87 (2d Cir. 2021) ................................... 18

Riverbend Landfill Co. v. Yamill Cnty.,

314 Or.App. 79 (2021) ......................................... 25

S. Nassau Bldg. Corp. v. Town Bd. of

Town of Hempstead,

624 F.Supp.3d 261 (E.D.N.Y. 2022) .................... 22

S. Pac. Transp. Co. v. City of Los Angeles,

922 F.2d 498 (9th Cir. 1990) ............................... 16

x

San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621 (1981) ............................................. 25

Sealund Sisters, Inc. v. Planning Bd. of Weymouth,

50 Mass.App.Ct. 346 (2000) ................................ 17

Seila Law LLC v. Consumer Fin. Prot. Bureau,

140 S.Ct. 2183 (2020) .......................................... 29

Sherman v. Town of Chester,

752 F.3d 554 (2d Cir. 2014) ................................. 27

State ex rel. AWMS Water

Solutions, L.L.C. v. Mertz,

162 Ohio St.3d 400 (2020) ................................... 26

Strubel v. United States, No. 06-112C,

2009 WL 1636355 (Fed. Cl. June 10, 2009) .... 6, 22

Suitum v. Tahoe Reg’l Plan. Agency,

520 U.S. 725 (1997) ............................... 4, 6, 14, 29

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................... 2, 7, 13, 29

TrafficSchoolOnline, Inc. v. Clarke,

112 Cal.App.4th 736 (2003) ................................. 32

Village Green at Sayville, LLC v. Town of Islip,

43 F.4th 287 (2d Cir. 2022) ................... 2–3, 30–31

Wayne Land & Mineral Group LLC v.

Delaware River Basin Comm’n,

894 F.3d 509 (3d Cir. 2018) ........................... 26–27

WG Woodmere LLC v. Town of Hempstead,

No. 20-CV-03903, 2022 WL 17359339

(E.D.N.Y. Dec. 1, 2022).................................. 19–20

Williamson Cnty. Reg’l Plan. Comm’n v.

Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ................................. 13–15, 19

xi

U.S. Constitution

U.S. Const. art. III, § 2 ............................................... 1

U.S. Const. amend. V .................................................. 1

Statutes

28 U.S.C. § 1254(1) ..................................................... 1

28 U.S.C. § 1291 .......................................................... 1

28 U.S.C. § 1331 .......................................................... 1

42 U.S.C. § 1983 .......................................................... 1

Religious Exercise in Land Use and by

Institutionalized Persons Act,

42 U.S.C. § 2000cc, et seq. ................................... 21

Mass. Gen. Laws ch. 40A, § 10 ................................. 17

Mass. Gen. Laws ch. 40A, § 14 ................................. 17

Other Authorities

Berger, Eric, The Collision of the Takings and

State Sovereign Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ..................... 28

Berger, Michael M., The Ripeness Game:

Why Are We Still Forced to Play?,

30 Touro L. Rev. 297 (2014) ................................ 31

Berger, Michael M., Supreme Bait & Switch:

The Ripeness Ruse in Regulatory Takings,

3 Wash. U. J.L. & Pol’y 99 (2000) ....................... 29

xii

Boden, Anastasia, et al., The Land Use

Labyrinth: Problems of Land Use Regulation

and the Permitting Process, released by the

Regulatory Transparency Project of the

Federalist Society (Jan. 8, 2020),

https://rtp.fedsoc.org/paper/the-land-uselabyrinth-problems-of-land-use-regulationand-the-permitting-process/ ................................ 31

Devaney, Rachael, First Light Shellfish

Farm brings economic sustainability to

Mashpee Wampanoag Tribe,

Cape Cod Times (Sept. 8, 2022),

https://www.capecodtimes.com/story/ne

ws/2022/09/08/mashpee-wampanoagtribes-shellfish-farm-could-boost-jobseconomy/7929545001/ .................................... 10–11

Harris, Charles E., Environmental

Regulations, Zoning and Withheld

Municipal Services: Takings of

Property by Multi-Government Action,

25 U. Fla. L. Rev. 635 (1973) .............................. 24

Longtin, Avoiding and Defending Constitutional

Attacks on Land Use Regulations (Including

Inverse Condemnation), in 38B NIMLO

Municipal Law Review 192–93 (1975) ................ 25

Stein, Gregory M., Regulatory Takings

and Ripeness in the Federal Courts,

48 Vand. L. Rev. 1 (1995) .................................... 26

Wake, Luke A., Righting a Wrong: Assessing the

Implications of Knick v. Township of Scott,

14 Charleston L. Rev. 205 (2020) ........................ 26

xiii

Whitman, Michael K., The Ripeness Doctrine in

the Land-Use Context: The Municipality’s

Ally and the Landowner’s Nemesis,

29 Urb. Law. 13 (1997) ........................................ 28

13B Wright & Miller, Federal Practice

& Procedure § 3532.1.1 (3d ed.) .......................... 30

1

Petition for a Writ of Certiorari

Matthew Haney, as Trustee of the Gooseberry

Island Trust, respectfully petitions for a writ of

certiorari to review the judgment of the U.S. Court of

Appeals for the First Circuit.

Opinions Below

The decision of the First Circuit Court of Appeals

is published at 70 F.4th 12 (1st Cir. 2023) and

reprinted at Pet.App.1a. The order of the district court

for the District of Massachusetts is published at 594

F.Supp.3d 151 (D. Mass. 2022), and reprinted at

Pet.App.20a. The district court’s order denying

reconsideration is published at 599 F.Supp.3d 32

(2022), and reprinted at Pet.App.38a.

Jurisdiction

The lower courts had jurisdiction over this case

under the Fifth Amendment to the United States

Constitution, 42 U.S.C. § 1983, 28 U.S.C. § 1331

(district court), and 28 U.S.C. § 1291 (First Circuit).

The First Circuit entered final judgment on June 6,

2023. Pet.App.1a. This Court has jurisdiction under

28 U.S.C. § 1254(1). Justice Jackson granted an

extension of time to file a Petition for Writ of

Certiorari up to and including October 31, 2023.

Constitutional Provisions at Issue

U.S. Constitution, Article III, § 2, provides in

relevant part, “[t]he judicial power shall extend to all

Cases, in Law and Equity, arising under this

Constitution.”

The Fifth Amendment to the U.S. Constitution

provides in relevant part, “nor shall private property

be taken for public use, without just compensation.”

2

Introduction and Summary of

Reasons for Granting the Petition

Like all civil rights claimants, property owners

seeking federal court vindication of their

constitutional right to just compensation must

establish the justiciability of their case under Article

III. Horne v. Dep’t of Agric., 569 U.S. 513, 526 n.6

(2013) (“A ‘Case’ or ‘Controversy’ exists once the

government has taken private property without

paying for it.”). But even when a case satisfies Article

III, courts may decline to exercise jurisdiction “on

grounds that are ‘prudential,’ rather than

constitutional.” Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 125–26 (2014). This

usually turns on the fitness of the issues for decision,

and the hardship to the parties caused by withholding

judicial consideration. Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 167 (2014). This Court has

recognized that prudential ripeness is “in some

tension with our recent reaffirmation of the principle

that ‘a federal court’s obligation to hear and decide’

cases within its jurisdiction is virtually unflagging.”

See, e.g., id. (quoting Lexmark, 572 U.S. at 126).

Despite this tension, in civil rights cases

challenging land use restrictions, the lower courts are

expanding the prudential ripeness doctrine, and

property owners must jump hurdles applicable to no

other constitutional claim—all because takings claims

are of “local” concern. See, e.g., Pet.App.14a–15a

(holding that a variance denial is not final unless it

can be deemed “with prejudice” and incapable of a

different future outcome); Village Green at Sayville,

LLC v. Town of Islip, 43 F.4th 287, 293 (2d Cir. 2022)

(“This concern about untimely adjudication is

3

especially pronounced in the land-use context …

[because they] are ‘matters of local concern more aptly

suited for local resolution[.]’”) (quoting Murphy v. New

Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir.

2005)). These expanded rules go beyond requiring the

government to take a single “definitive position” on

what uses it will allow or prohibit, but affords the

government extraordinary deference by holding a case

prudentially unripe because if the owner were only to

ask for one more variance, try for one more

annexation, or submit one more design proposal, the

takings claim might be avoided. See, e.g., North Mill

St., LLC v. City of Aspen, 6 F.4th 1216, 1229, 1234

(10th Cir. 2021) (plaintiff whose development permit

was denied met Article III standing and ripeness

standards, but case was “not prudentially ripe”

because it remained possible for the city to grant

different requests). This is exhaustion by another

name.

The lower courts’ expansion of the prudential

ripeness bar conflicts with this Court’s decisions

reopening the courts to property rights claims, and

reducing the barriers to staying there. In Knick v.

Twp. of Scott, 139 S.Ct. 2162, 2167 (2019), this Court

overruled

a

prudential

“state

exhaustion”

requirement for takings claims. And Pakdel v. City

and County of San Francisco refocused the “final

decision” ripeness inquiry and cautioned against de

facto exhaustion. The Court recognized that in cases

where a property owner has actually been injured by

the defendant, prudential ripeness is a “relatively

modest” requirement, satisfied by a de facto showing

of “how the ‘regulations at issue apply to the

particular land in question.’” 141 S.Ct. 2226, 2230

4

(2021) (per curiam) (quoting Suitum v. Tahoe Reg’l

Plan. Agency, 520 U.S. 725, 739 (1997)).

After Knick and Pakdel, all that is required is a

single government no, and not elimination of every

possibility by which the government suggests it might

say yes. These decisions confirmed that takings claims

are treated the same as every other civil rights claim,

and are ripe for judicial review “once it becomes clear

that the agency lacks the discretion to permit any

development, or the permissible uses of the property

are known to a reasonable degree of certainty[.]”

Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001)

(emphasis added). After all, when courts refuse to

consider a civil rights claim and instead defer to the

very government claimed to be unconstitutionally

interfering with an owner’s constitutional rights, they

shirk the federal judiciary’s primary purpose to

resolve constitutional questions. Marbury v. Madison,

5 U.S. (1 Cranch) 137, 178 (1803) (determining

whether government action “be in opposition to the

constitution” is “the very essence of judicial duty.”).

Despite Pakdel’s “relatively modest” ripeness test,

many lower courts continue to require takings

claimants, in cases which are unquestionably ripe

under Article III, to expend enormous amounts of

additional time and money just to satisfy a prudential

demand that the claimant should wait, in the often

vain hope that the government might change its

position if only the owner would keep on trying. Local

governments are well aware that federal courts are

very receptive to prudential ripeness arguments as a

reason to dismiss takings claims. As here, the

government knows if it dangles the barest discernible

hope it might allow some use of property, the court is

5

likely to dismiss a takings claim as prudentially

unripe. Pet.App.14a–15a (holding that the permit

denial was not a final decision because it was not

issued “with prejudice” such that no future permit

application would be futile); see also, e.g., BayHouston Towing Co., Inc. v. United States, 58 Fed.Cl.

462, 471 (2003) (“[A] strict interpretation of the

ripeness doctrine would provide agencies with no

incentive to issue a final decision.”); see also North

Mill, 6 F.4th at 1229 (claim met Article III

justiciability requirements, but was not prudentially

ripe because government might grant separate

development application); Laredo Vapor Land, LLC v.

City of Laredo, No. 5:19-CV-00138, 2022 WL 791660,

at *5 (S.D. Tex. Feb. 18, 2022) (“The Court is

unconvinced that Plaintiff did enough to obtain a final

decision from the City. Even if the City did require

that Plaintiff exceed the drainage regulation, Plaintiff

must show that it sought clarification from the city,

such that there remained ‘no question’ about what

Plaintiff was required to do to get a building permit.”).

This petition illustrates the extremes to which

property owners must go, simply to plead (merely

assert!, not necessarily win) a federal civil rights

takings claim.

When, as here, property is regulated by several

different governments—a situation that arises with

regularity as a consequence of the multiple

governmental and regulatory layers that commonly

burden the use and development of property—it

should be sufficient for purposes of prudential

ripeness that the defendant has definitively rejected

at least one of the necessary approvals. The goal of the

ripeness requirement is not to force property owners

to run a procedural gauntlet for its own sake,

6

Palazzolo, 533 U.S. at 621, but to ensure “there [is] no

question … about how the ‘regulations at issue apply

to the particular land in question.’” Pakdel, 141 S.Ct.

at 2230 (quoting Suitum, 520 U.S. at 739). See also

Barber v. Charter Twp. of Springfield, 31 F.4th 382,

390 n.6 (6th Cir. 2022) (adjudication of the merits of a

takings claim is premature where there is speculation

and conjecture about the magnitude of the harm

caused to the plaintiff). Here, the only government

with authority to grant or deny the frontage and

setback variances denied them. That should be the

beginning, middle, and end of the ripeness enquiry.

Yet lower courts remain in conflict about whether

a government may avoid accountability for a taking by

claiming it might reconsider its denial if some other

government or agency grants a separate application

for a separate use. The First Circuit decision, which

requires property owners to seek all permits from all

agencies in the order preferred by the government,

Pet.App.11a–17a, conflicts with other courts

addressing multiple permits from multiple entities.

See, e.g., Blake v. Cnty. of Kauaʻi Plan. Comm’n, 131

Haw. 123, 133 (2013) (“[F]inality for purposes of

ripeness involves a decision of the agency whose

‘definitive position’ on a matter is being challenged,

and a decision of that agency is final for purposes of

ripeness even if there are other approvals or conditions

that still need to occur.”) (emphasis added); Strubel v.

United States, No. 06-112C, 2009 WL 1636355, at *20

(Fed. Cl. June 10, 2009) (denial of state permit

obviated need to seek related permit from federal

Bureau of Land Management); MLC Auto., LLC v.

Town of S. Pines, No. 1:05CV1078, 2007 WL 9757526,

at *11 (M.D.N.C. May 15, 2007) (per Town policy, “a

landowner cannot even request a building permit

7

until 13 other steps are completed, including the

acquisition of at least four other permits from other

entities”); Batchelder v. City of Seattle, 77 Wash.App.

154, 162 (1995) (city used sequencing of approvals in

strategic fashion).

Until this Court resolves the tension between the

federal courts’ constitutional obligation to resolve civil

rights claims and a prudential rule of judicial

avoidance applicable only to constitutional property

claims, see Susan B. Anthony List, 573 U.S. at 167;

Lexmark, 572 U.S. at 126, Haney and countless

property owners nationwide are relegated by the

courts to even more process by the very same local

government officials who are alleged to be violating

their federal civil rights.

This Court should grant the petition to resolve

whether a regulatory takings claim is ripe when a

government has flatly told a property owner “no” on

any one of multiple necessary permits required to

build his home.

Statement of the Case

A. Gooseberry Island and Haney’s proposal

to build a single-family home

Since 1955, the Nelson and Haney families have

owned Gooseberry Island, located in Popponesset Bay

in Mashpee, Massachusetts.1 Pet.App.43a–44a. Only

four acres in size, the island is separated from the

mainland by a narrow channel that varies between

40–80 feet depending on the tides. Pet.App.2a–3a,

45a. A realty trust also controlled by Matthew Haney

Gooseberry Island Trust currently holds title, and Matthew

Haney serves as trustee.

1

8

owns land at the end of Punkhorn Point Road, the

point of the mainland closest to the island. The

channel between Punkhorn Point and Gooseberry

Island is only two feet deep at low tide, giving people

access to the island by wading. Pet.App.23a–24a, 44a–

45a. The tidal waters are held by the State of

Massachusetts in the public trust, as managed by the

Town of Mashpee. Pet.App.51a–52a. The Mashpee

Wampanoag Tribe, federally recognized in 2007,

entered into an intergovernmental agreement with

the Town in 2008 to obtain fishing rights to the

shellfish living in the waters including the channel

between the mainland and Gooseberry Island. This

agreement includes the Town’s pledge to “support all

necessary steps to have [the Commonwealth tidelands

surrounding Gooseberry Island] acquired in trust for

the Tribe.” Pet.App.26a, 49a–52a.

For ten years, Haney has been trying to build a

single home on his island, which sits in a heavily

developed waterfront residential area and is zoned

exclusively for single-family residential use.

Pet.App.3a–8a, 53a–67a. The Town holds exclusive

authority to issue building development permits and

related variances to the Town code. Pet.App.52a–53a.

As the first necessary step in the process to build his

home, in 2013 Haney applied to the Town Zoning

Board of Appeals for variances from the frontage and

roadway access zoning regulations. Pet.App.53a.

These variances would eliminate the requirements of

at least 150 feet of frontage on a street and an

unobstructed paved access roadway within 150 feet—

neither of which make sense on a tiny island with a

single home. Pet.App.53a, 3a (“Gooseberry Island is

entirely surrounded by water and thus does not have

any frontage on a street and is located more than 150

9

feet away from a paved roadway.”). The Town denied

the requested variances on the grounds of “public

safety” because no bridge links the island to the

mainland, making emergency access difficult at high

tide. Pet.App.4a, 8a, 53a, 67a.

Proceeding in good faith, Haney sought

permission from the relevant agency—the Mashpee

Conservation Commission—to build a single-lane

timber bridge. Pet.App.4a, 54a–62a. This drew the ire

of some nearby Town residents and the Mashpee

Wampanoag Tribe, which alleged that its shell fishing

rights in the tidal waters would be adversely affected

by pilings in the salt marsh and by the shade cast over

the water by an opaque timber bridge. Pet.App.4a,

54a–55a. In February 2015, the Commission denied

the bridge permit. Pet.App.59a. Haney appealed to

the Massachusetts Department of Environmental

Protection. Pet.App.59a. The Commission’s regional

office advised Haney that a steel bridge would present

fewer problems, so he revised his request to seek

permission for a steel bridge. Pet.App.5a, 60a.

Following an adjudicatory hearing by the Office of

Appeals and Dispute Resolution, the Department

issued a post-hearing memorandum concluding that

the bridge permit appeal should be granted.

Pet.App.6a, 60a. However, the final decision adopted

by the Commissioner in 2017 chose not to review the

steel bridge proposal because Haney’s original

application proposed a timber bridge and the

Commissioner deemed the change to a steel bridge to

be substantial enough to require Haney to return to

Square One and start over. Pet.App.6a, 60a–61a;

Haney v. Dep’t of Env’t Prot., 100 Mass.App.Ct. 1105,

2021 WL 3502072, at *2 (2021). The Massachusetts

appellate court affirmed the agency’s refusal to

10

exercise discretion to review the revised proposal. Id.

at *5.

While these state appellate court proceedings

were pending, in 2018 Haney again sought variances

from the Town zoning board to allow construction of a

single home on the island without complying with the

frontage and access requirements. Pet.App.6a–7a,

64a. This time, his application included proposed

access to the island via a single-lane emergency access

bridge. Pet.App.7a, 66a. It contained alternative plans

for both timber and steel proposed bridges, noting that

“[t]he final design of the bridge is subject to pending

litigation, but it will be either the timber bridge or the

steel bridge.” Haney v. Town of Mashpee, No. 22-1446,

App. 000393 (1st Cir. Oct. 12, 2022). Again, the Town

said “no,” unanimously denying the application

because “the proposed Variance would not advance

the Town’s interest in maintaining the public safety

and, further, [a] grant of a variance would in fact

derogate from the under[lying] purpose and intent of

the Zoning By-laws.” Pet.App.7a–8a, 67a.

Subsequently, in November 2020, the Mashpee

Conservation

Commission

voted

to

acquire

Gooseberry Island by eminent domain. Pet.App.31a–

32a, 72a–73a. The Commission sought funding from

the Mashpee Community Preservation Committee to

purchase the island in January 2021, id., but has not

yet commenced eminent domain proceedings. While

Haney’s proposed home is dead in the water, the

Tribe’s shellfish farms are thriving, recently obtaining

a $1.1 million U.S. Economic Development

Administration grant to “fund three, full-time

positions, and two part-time positions for Natural

Resources Department staff to focus on shellfish farm

11

initiatives.” Rachael Devaney, First Light Shellfish

Farm brings economic sustainability to Mashpee

Wampanoag Tribe, Cape Cod Times (Sept. 8, 2022).2

B. Procedural history

Having been denied variances to build one singlefamily home either with or without a bridge, Haney

filed a regulatory takings claim in federal court

against both the Town and the Board, alleging

constitutional claims under both Penn Central

Transportation Co. v. City of New York, 438 U.S. 104

(1978), and Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), as well as related state

constitutional claims. Pet.App.76a.3 The Town

successfully moved to dismiss the case on the grounds

that the claims were not yet ripe. Pet.App.20a–37a.

The district court held the claims were not ripe

because Haney did not pursue every possibility to

obtain permission to build a steel bridge.

Pet.App.32a–37a. Despite the Town’s steadfast

refusal to grant the variance over which it had

exclusive authority, and the overall context of the

Town’s alliance with the Tribe, the court held that—

as a matter of law—it was not futile for Haney to apply

again for the variances after first seeking permission

to build the steel bridge. Pet.App.35a–37a (“there is

no clear statement from the Z[oning] B[oard of]

A[ppeals] that there can never be a variance granted

2 https://www.capecodtimes.com/story/news/2022/09/08/mashpee

-wampanoag-tribes-shellfish-farm-could-boost-jobseconomy/7929545001/.

3 State

takings claims under Article X of the Massachusetts

Constitution are evaluated coextensively with the federal

takings analysis. Commonwealth v. Blair, 60 Mass.App.Ct. 741,

748 (2004).

12

for the Subject Property, or that it would be futile for

the Trust to seek a variance at the appropriate time”).

Haney’s failure to do so, therefore, was dispositive on

the finality question because, if the bridge were

approved, Haney could, based on that permission,

seek variances from the Town’s frontage and setback

requirements. Pet.App.36a–37a. In other words, the

third time might be the charm.4

The First Circuit affirmed in a published opinion.

Pet.App.1a–18a. The First Circuit held that the Town

was within its rights to demand that Haney pursue

the bridge application to a final decision prior to

seeking zoning variances from the Town, Pet.App.12a,

and that the Town’s failure to expressly include that

demand in its decision denying the variances is of no

consequence. Pet.App.13a–15a. Because the Town’s

decision states only that the reason for the denial is

that permitting the project to proceed would “derogate

from the underlying purpose and intent of the zoning

bylaws,” the First Circuit considered statements by

individual Board members who expressed concern

about granting variances absent approval for bridge

construction. Pet.App.13a–14a.

The court then held that it would not be futile for

Haney to apply again after obtaining a steel bridge

permit. The court acknowledged that “[t]hrough

Pakdel, our caselaw’s futility exception is now simply

part and parcel of the finality requirement.”

Pet.App.16a. Haney argued 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

4 The district court denied Haney’s motion for reconsideration

without further analysis. Pet.App.38a–40a.

13

the [Board] is a certainty.’” Pet.App.16a. The First

Circuit held that it was possible that, with a bridge

permit in hand, Haney’s third request for a variance

might receive favorable treatment. Pet.App.16a (“The

Board has never represented that it would deny any

and all variance applications[.]”). From Haney’s

perspective, this bare—and highly unlikely—

possibility made it economically infeasible to pursue

the costly bridge permit without obtaining the

variances first. The First Circuit, however, disdained

Haney’s “strategic” “effort to save resources.”

Pet.App.16a. Unconcerned by the cost in time and

money to a property owner who has already spent a

full decade seeking permission to build one home, the

court below held it “cannot conclude that the Board

has ‘committed to a position’ with respect to the

variances” because Haney “still has the option to

pursue approval of the steel-bridge proposal and then

present the Board with variance applications.”

Pet.App.17a. Thus, it concluded, the case is unripe

and cannot proceed in federal court. Id.

Reasons for Granting the Petition

The doctrines of standing and ripeness “originate”

from the same Article III limitation that federal courts

may entertain only “cases or controversies,”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335

(2006), and “boil down to the same question.”

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128

n.8 (2007). That is, the ripeness requirement exists so

courts are confident that the plaintiff has really been

injured. Susan B. Anthony List, 573 U.S. at 157–58 &

n.5. In the land use context, the Court’s rulings use

the language of “finality” to determine whether

government action has caused injury. Williamson

14

Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172, 186 (1985) (takings claim

is ripe when “the government entity charged with

implementing the regulations has reached a final

decision regarding the application of the regulations

to the property at issue”). The Court describes the

purpose of “finality” in as-applied regulatory takings

cases to ascertain the “extent of permitted

development” on the land in question. MacDonald,

Sommer & Frates v. Yolo Cnty., 477 U.S. 340, 351

(1986). This finality requirement is “relatively

modest,” and demands only that the “initial

decisionmaker” make a final determination as to “how

the ‘regulations at issue apply to the particular land

in question.’” Pakdel, 141 S.Ct. at 2229–30 (quoting

Suitum, 520 U.S. at 739). The government’s

opportunity “to decide and explain the reach of a

challenged regulation” does not require a landowner

to “submit applications for their own sake,” or when

submission would be a futile act. Palazzolo, 533 U.S.

at 620, 622, 626. Property owners need not cross off all

requirements to get to a government’s “yes.” To

establish an injury sufficient to pursue a federal case

under Article III, the ripeness doctrine should require

only one “no” from an agency with authority to issue

the denial. That the denying agency may offer advice

to a property owner about knocking on other doors

does not affect the definitive denial of a request within

the agency’s sole authority. See McKeithen, Trustee of

Craig E. Caldwell Trust v. City of Richmond, No.

210389, 2023 WL 6884689, at *8 (Va. Oct. 19, 2023)

(takings claim cannot be thwarted by a City’s claim

that, “under no compulsion of law, [it] might show

mercy … at some unspecified future date”).

15

In many cases, property owners submit their

applications and variance requests to a single

government agency, and when that agency says “no,”

the property owner may pursue a takings claim in

federal court. See, e.g., Pakdel, 141 S.Ct. at 2228 (San

Francisco Department of Public Works had sole

authority to grant or deny relief). In other cases, such

as this one, a property owner seeking to make use of

his land must obtain permission from more than one

government agency. This Court has never addressed

whether property owners in such situations must seek

permission from all government agencies, or whether

any single denial that kills the proposed development

sufficiently injures the property owner to ripen his or

her takings claim. Lower courts are divided on this

point. Here, the Town of Mashpee twice rejected

Haney’s requests for the variances necessary to build

his island home. Given these unconditioned refusals,

Haney did not undergo the time and expense to seek

a bridge permit from another agency. This case thus

cleanly presents a recurring issue of prudential

ripeness that bars property owners from pursuing

constitutional takings claims in court.

I.

The Decision Below Conflicts with This

Court’s Ripeness Doctrine

The First Circuit’s rationale conflicts sharply with

this Court’s most recent decisions. In Knick, this

Court abrogated the Williamson County state-court

compensation exhaustion requirements and exhorted

that the Takings Clause was to enjoy “full-fledged

constitutional status,” leaving in place only the

requirement that landowners first seek a final

decision on variances where available. 139 S.Ct. at

2170 (citing Williamson County, 473 U.S. at 186).

16

Shortly thereafter, in Pakdel, this Court elaborated

that the finality requirement is “relatively modest,”

and requires only that the “initial decisionmaker”

make a final determination as to “how the ‘regulations

at issue apply to the particular land in question.’” 141

S.Ct. at 2229–30.

The First Circuit’s rule also conflicts with this

Court’s earlier decision in Palazzolo, which

emphasized that landowners must simply provide

land-use authority “an opportunity to exercise its

discretion” before bringing a takings claim. 533 U.S.

at 620 (emphasis added). This ensures that available

uses of the property are “known to a reasonable degree

of certainty,” id. (emphasis added), and can be

accomplished by a “meaningful application”5 for relief

from the challenged regulations. MacDonald, 477 U.S.

at 352 n.8. Once the use (or lack thereof) of the

property is known to a reasonable—but not absolute—

degree as to the challenged regulations, any future

contingencies are irrelevant. Blanchette v. Conn. Gen.

Ins. Corp. (Reg’l Rail Reorganization Act Cases), 419

U.S. 102, 143 & n.29 (1974).

5 Some courts have replaced “meaningful” with “reasonable,” to

establish that “exceedingly grandiose development plans” are

insufficient to show that a land-use authority “does not intend to

allow reasonable development.” S. Pac. Transp. Co. v. City of Los

Angeles, 922 F.2d 498, 503 (9th Cir. 1990) (quoting MacDonald,

477 U.S. at 353 n.9); see also Palazzolo, 533 U.S. at 619 (“[T]he

final decision requirement is not satisfied when a developer

submits, and a land-use authority denies, a grandiose

development proposal, leaving open the possibility that lesser

uses of the property might be permitted.”). Haney’s proposed

development, a single-family home on land zoned for singlefamily use, passes muster under either standard.

17

The First Circuit’s opinion distorts this approach

beyond recognition. As the court below recognized, the

Board was the “initial decisionmaker” with regard to

variances for the construction of a single-family home.

Pet.App.16a–17a n.6. Indeed, under Massachusetts

law, the Board was authorized to hear and decide only

petitions for variances. Mass. Gen. Laws ch. 40A, § 14

(providing authority to hear variance requests under

Mass. Gen. Laws ch. 40A, § 10); see also Pet.App.11a–

12a. The Board could not issue any permits related to

a bridge and is prohibited from considering matters

outside of its control. See, e.g., Sealund Sisters, Inc. v.

Planning Bd. of Weymouth, 50 Mass.App.Ct. 346, 348

(2000) (“A planning board exceeds its authority if

requirements are imposed beyond those established

by the rules and regulations.”) (quoting Beale v.

Planning Bd. of Rockland, 423 Mass. 690, 696 (1996));

F&D Cent. Realty Corp., Inc. v. Planning Bd. of

Bellingham, 86 Mass.App.Ct. 1115, 2014 WL

5150530, at *2 (2014) (“[A] board may not base its

reasons for disapproval on standards for adjoining

roadways not prescribed in the rules and regulations,

or exercise its discretion to import its own standards

…, absent such rule or regulation.”); Pelletier v. Bd. of

Appeals of Leominster, 4 Mass.App.Ct. 58, 62 (196)

(“The [zoning] board’s decision must be confined to the

matter pending before the board and cannot validly

determine matters not pending before the board.”);

MacGibbon v. Bd. of Appeals of Duxbury, 347 Mass.

690, 691–92 (1964) (a zoning board cannot deny a

permit based on considerations outside the purview of

the zoning board). The Board must decide whether to

grant the requested variances regardless of whether

Haney is or is not able to construct a bridge.

18

Here, the Board twice definitively stated its

position as to Haney’s frontage and setback variances,

yet it points to an unrelated agency, and invokes an

unrelated concern, to create the illusion (without any

guaranty) that a future application might succeed. Yet

the First Circuit held that these were not final

decisions because they were not issued “with

prejudice”, such that it would deny “any and all”

future variance applications. Pet.App.14a–16a. Under

the First Circuit’s holding, Haney can be required to

apply, apply again, and also apply elsewhere

(expending time and money), leaving a claim unripe

unless and until the government has definitively

stated that it will never change its position.

This Court’s “cautious approach to prudential

ripeness is a reminder that the doctrine constitutes a

narrow exception to the strong principle of mandatory

exercise

of

jurisdiction.”

Revitalizing

Auto

Communities Env’t Response Tr. v. Nat’l Grid USA, 10

F.4th 87, 102 (2d Cir. 2021). Land use agencies are to

be given an opportunity to remove requirements of the

objective laws governing development. This

recognizes that governments may desire to exercise

their inherent discretion to allow use that is otherwise

prohibited to avoid takings liability. But this Court’s

approach does not condone—as the First Circuit

opinion does—the imposition of unwritten and

unrelated requirements as a series of procedural

hurdles for the landowner to navigate before he

pursues constitutional protection in federal court.

In Palazzolo, this Court explained that

landowners must take only “reasonable and necessary

steps” to allow land use boards to use that discretion

“to grant any variances or waivers allowed by law.”

19

533 U.S. at 620–21. Once such steps have been taken,

the denial of a permit by the “initial decisionmaker”

constitutes a “definitive position on the issue” that

“inflicts an actual, concrete injury.” Williamson

County, 473 U.S. at 193. Taken together, this Court’s

opinions stand for the simple proposition that once an

agency has inflicted an “actual, concrete injury” by

unconditionally denying use, the landowner’s takings

claim is ripe. Id. Because the First Circuit’s opinion

sharply conflicts with this Court’s cases, this Court

should grant the petition.

II. Lower Courts Conflict on What Ripens

Takings Cases When Permits Are Required

from Multiple Agencies

The First Circuit held that a property owner who

seeks to develop property must seek to obtain permits

from two separate, independent agencies to ripen a

takings claim, even though a denial from either

agency suffices to kill the proposed development.

Pet.App.14a–17a. Some courts agree. See, e.g., North

Mill Street, 6 F.4th at 1229–34; Beach v. City of

Galveston, No. 21-40321, 2022 WL 996432, at *3 (5th

Cir. Apr. 4, 2022) (case unripe where avenues

remained for further government consideration of

development plans); DiVittorio v. Cnty. of Santa

Clara, No. 21-cv-03501, 2022 WL 409699, at *7 (N.D.

Cal. Feb. 10, 2022) (case unripe because denied

application was “only the first of many hurdles”

including “environmental assessment pursuant to

CEQA, notice of the application to neighboring land

owners and the public, a public hearing, action on the

application, and acceptance of any conditions of

approval”); WG Woodmere LLC v. Town of Hempstead,

No. 20-CV-03903, 2022 WL 17359339, at *7 (E.D.N.Y.

20

Dec. 1, 2022) (takings claim unripe after landowner

“expended significant resources” because town

changed zoning rules midstream, requiring a new

application).

Others, following this Court’s lead, take a more

reasonable approach. In Blake v. County of Kauaʻi

Planning Commission, an individual sought to

challenge the Kauaʻi Planning Commission’s approval

of a subdivision application. 131 Haw. at 130. The

lower courts found that the subdivision approval was

not final, because additional, related permits were

needed from the state. On petition to Hawaii Supreme

Court, one question presented was: “Is ‘final agency

approval’ different than ‘final project approval’ when

a developer must receive approval from multiple

agencies?” Id. The court held that the takings

challenge to the “definitive position” of the Board was

ripe, “even if there are other approvals or conditions

that still need to occur.” Id. at 133 (emphasis added).

In other words, the potential future approval (or

denial) of required permits by other agencies was

irrelevant to the existing challenged decision. Id. at

134 (“The Planning Commission’s approval, while

given without the BLNR’s consent to an easement,

was nevertheless final agency action for purposes of

ripeness.”).

In Martin v. Town of Simsbury, 735 F.App’x. 750

(2d Cir. 2018), Timothy Martin sought to build a

single home on his property. The town told Martin

that he needed to conduct a wetlands investigation

and seek a variance for street frontage before it would

consider his building permit. He applied for a variance

from the frontage requirement and the town denied it.

He appealed to the Zoning Board of Appeals, which

21

affirmed the denial. Id. at 751. He then sued for an

unconstitutional taking. The district court held the

case was not ripe because Martin could have sought a

special permit under a different regulation or merged

his property with an abutting lot and sought a permit

for a tennis court or swimming pool. Id. at 752. The

Second Circuit reversed: “Requiring Martin to

exhaust all the potential uses of his property before

bringing his constitutional claims would conflate

prudential ripeness with the merits: he would have to

demonstrate that he has a winning case before he

even stepped through the courtroom door.” Id.6

Moreover, the town could not refuse a property

owner’s request to build a home and then avoid

litigation by dangling potential approval of a

swimming pool. Id. (citing Macdonald).

In Church of Our Lord and Savior Jesus Christ v.

City of Markham, 913 F.3d 670 (7th Cir. 2019), the

Seventh Circuit held that a RLUIPA7 claim was ripe

despite the church’s failure to apply for variances from

applicable parking regulations. The court held that

the primary issue was whether operating a church on

the property was a permitted or conditional use. The

parking issue, therefore, was tangential and could not

defeat the justiciability of the church’s claims. Id. at

672–73. The city had made a final decision regarding

6 The Sixth Circuit corrected a district court that made the same

error of conflation in Barber v. Charter Twp. of Springfield, 31

F.4th at 390, holding that allegations of damage anticipated by a

proposed dam removal sufficed to ripen takings claim even if the

property owner’s allegations were insufficient for her to prevail

on the merits.

Religious Exercise in Land Use and by Institutionalized

Persons Act, 42 U.S.C. § 2000cc, et seq.

7

22

the church’s zoning use classification and that was all

that was required. Id. at 678–79.

Some lower federal courts take a similarly

practical approach to ripeness. For example, in

Empire Pipeline, Inc. v. Town of Pendleton, 472

F.Supp.3d 25 (W.D.N.Y. 2020), the plaintiffs needed

multiple permits to construct a pipeline and

compression station, including the town’s building

permit. When the town denied the permit, the

plaintiffs sought to challenge whether this regulation

requiring this permit was preempted by the federal

Natural Gas Act. The court held that they “need not

wait until they have in hand every other permit

required for construction and operation of the

compression station and interstate pipeline.” Id. at 46.

Similarly, in S. Nassau Bldg. Corp. v. Town Bd. of

Town of Hempstead, 624 F.Supp.3d 261, 270–71

(E.D.N.Y. 2022), a property owner whose property was

declared a landmark by the Landmarks Commission

and Town Board over his objections could challenge

the designation as working a taking without seeking

a zoning variance to build a new house, or to move,

alter, or demolish the house. The court held that,

having already applied to the Town, the owner need

not apply to the Landmarks Commission. “[A]

plaintiff’s decision to forgo a game of the kind

described in Joseph Heller’s Catch-22 does not render

government action any less final or a case any less

ripe.” Id. at 271. See also Strubel, 2009 WL 1636355,

at *20 (property owner seeking to conduct hydraulic

mining operation could sue for a taking when state

denied his petition for water rights when Bureau of

Land Management advised owner that his mining

plan could not be approved without the water rights).

23

The Florida Court of Appeals considered a case

remarkably similar to this one. In Lost Tree Village

Corp. v. City of Vero Beach, 838 So.2d 561, 564 (Fla.

Dist. Ct. App. 2002), a property owner alleged facial

and as-applied takings claims for his inability to

develop housing on two groups of islands in the Indian

River Lagoon, designated the Inner Islands and Outer

Islands. The islands were under the jurisdiction of the

Town of Indian River Shores but the bridge would

require permission from the City of Vero Beach, to

which it would be connected. The City denied Lost

Tree’s application to build a bridge based on its “no

bridgehead” ordinance. Id. at 565. The Town,

meanwhile, rejected a plat approval application

because there was no bridge. Id. at 566. The combined

effect of the City’s “no bridgehead” ordinance with the

Town’s “no development without bridge” ordinance,

effectively deprived Lost Tree from using its property

in an economically viable manner. The City and Town

each argued that “because their respective regulations

do not solely deprive Lost Tree from using its

property, neither can be liable for payment of

compensation.” Id. at 568. The court rejected that

reasoning. Id. The court explained that the

Constitution protects against uncompensated taking

of property, not the governmental units responsible

for the taking. Id. (citing Ciampetti v. United States,

18 Cl.Ct. 548, 556 (1989) (“Assuming that no

economically viable use remains for the property, the

Constitution could not countenance a circumstance in

which there was no fifth amendment remedy merely

because two government entities acting jointly or

severally caused a taking.”). The court concluded, “As

a general principle, two levels of government should

not be able to avoid responsibility for a taking of

24

property merely because neither of their actions,

considered individually, would unconstitutionally

infringe upon private property rights.... Government

decisions are not produced in a vacuum.” Id. at 569

(quoting

Charles

E.

Harris,

Environmental

Regulations, Zoning and Withheld Municipal

Services: Takings of Property by Multi-Government

Action, 25 U. Fla. L. Rev. 635, 683 (1973)). In these

circumstances, further applications to develop the

Inner Islands would be futile and the case was ripe for

litigation. Id. at 573.

In Dunn v. County of Santa Barbara, 135

Cal.App.4th 1281, 1286–87 (2006), David Dunn owned

6.05 acres of land zoned for single-family residential

use with a minimum parcel size of three acres. Dunn

needed permission from both the county and the

California Coastal Commission to build a home on his

land. Dunn submitted an application to the County to

subdivide his parcel into two separate lots of roughly

three acres. Id. The County denied the subdivision

application because it found wetlands on the property,

id. at 1287, and Dunn therefore never applied for a

building permit for the home. Id. at 1299. Because of

this, the lower court concluded that Dunn’s takings

claim was not ripe. Id. The Court of Appeals reversed:

“Because the County has made it clear that its

wetland and ESHA regulations effectively limit the

development of Dunn’s property to one residence, his

takings claim is ripe for adjudication even though he

has not sought permission to build that residence.” Id.

at 1300. Relying on Palazzolo, the court held that any

uncertainties that may exist with respect to any

possible setbacks or alternative configurations do not

“undermine[] the unequivocal and final nature of the

County’s decision denying the lot split.” Id. at 1301.

25

Once the County took a clear position as to what Dunn

could build (and not build), the case was ripe. Id.

Denial of one necessary permit obviates the need

for property owners to continue seeking other permits

that would be required for the project to move forward.

Government certainly allocates its own resources with

this understanding. For example, in Riverbend

Landfill Co. v. Yamill Cnty., 314 Or.App. 79, 86

(2021), the Oregon Court of Appeals held that when

the county denied the property owner’s site design

review application, there was no need for the Land

Use Board of Appeals to spend time considering the

related flood development permit: “Denial of the SDR

rendered the FDP application unnecessary[.]” Id. This

Court should grant certiorari to ensure that property

owners’ efficient use of resources receive as much

consideration as the government’s own.

III. This Important Question Can Be Resolved

Only By This Court

Governments always want to reduce their risk of

liability for unconstitutional takings. San Diego Gas

& Elec. Co. v. City of San Diego, 450 U.S. 621, 655 n.22

(1981) (Brennan, J., dissenting) (quoting article

advising city attorneys on legal tactics to avoid

judicial resolution of regulatory takings claims).8

Delay in decision-making benefits only the

government, with its deep pockets and endless time,

while grinding down property owners’ monetary and

8 “[T]he City [can] change the regulation in question, even after

trial and judgment, make it more reasonable, more restrictive, or

whatever, and everybody starts over again.” Id. (quoting Longtin,

Avoiding and Defending Constitutional Attacks on Land Use

Regulations (Including Inverse Condemnation), in 38B NIMLO

Municipal Law Review 192–93 (1975)).

26

spiritual resources. See Bay-Houston Towing Co., Inc.

v. United States, 58 Fed.Cl. 462, 471 (2003) (“[A] strict

interpretation of the ripeness doctrine would provide

agencies with no incentive to issue a final decision.”);

Gregory M. Stein, Regulatory Takings and Ripeness in

the Federal Courts, 48 Vand. L. Rev. 1, 98 (1995)

(“[M]unicipalities may have an incentive to

exacerbate this problem [of the delay inherent in

‘ripening’ a case], as stalling is often the functional

equivalent of winning on the merits.”); Luke A. Wake,

Righting a Wrong: Assessing the Implications of Knick

v. Township of Scott, 14 Charleston L. Rev. 205, 214

(2020) (“agency staff can often threaten permit denial

without actually pulling the trigger”).

The effect is well known to this Court and others,

which decry the “shell game” and “shifting goal post”

manipulations incentivized by the existing ripeness

doctrine. See Donnelly v. Maryland, 602 F.Supp.3d

836, 842 (D. Md. 2022) (“As Plaintiffs see things, the

protracted history of the County’s and State’s

maneuvers seems to be little more than a

governmental shell game.”); State ex rel. AWMS Water

Solutions, L.L.C. v. Mertz, 162 Ohio St.3d 400, 410

(2020) (after property owner twice submitted

applications that were rejected, and state suggested a

third application to meet newly adopted standards,

court “decline[d] the state’s invitation to issue a

decision establishing precedent permitting the state

to create moving targets”). This Court, unlike the

First Circuit, has shown sympathy rather than

disdain for property owners seeking to manage costs

by choosing more efficient routes to judicial resolution

of their claims. See Gardner v. Toilet Goods Ass’n, 387

U.S. 167, 173 (1967) (noting injury caused by

“substantial” costs of delaying lawsuit); Wayne Land

27

& Mineral Group LLC v. Delaware River Basin

Comm’n, 894 F.3d 509, 523 (3d Cir. 2018) (“granting

or denying Wayne’s requested declaratory relief will

conclusively determine whether Wayne can forego the

expense of applying to the Commission”); Home

Builders Ass’n of Chester & Delaware Counties v.

Commw., Dep’t of Env’t Prot., 828 A.2d 446, 452 n.6

(Pa. Commw. Ct. 2003) (case was ripe where property

owner would suffer “tremendous costs” by delay).

Some courts recognize the perverse incentive for

local governments to avoid a final decision, if that

decision will ripen a takings claim. See, e.g., Sherman

v. Town of Chester, 752 F.3d 554, 562–63 (2d Cir.

2014) (town “engaged in a war of attrition” after

repeatedly changing the zoning laws, rejecting

landowner’s proposals, and forcing him to spend

millions of dollars over the course of 10 years); Laredo

Vapor Land, LLC, 2022 WL 791660, at *4–*5 (takings

case unripe where plaintiff failed to seek variance or

make

“alternative

proposal”

or

“obtain

a

proportionality review” or “engag[e] in back-and-forth

conversations with City officials” to pursue every

possible alternative). And if a government is allowed

to point to a hypothetical approval for some future

application to restrict property in fact and in the

present, it can evade entirely the requirements of just

compensation until the landowner simply gives up.

City of Sherman v. Wayne, 266 S.W.3d 34, 42 (Tex.

App. 2008) (“[W]e are mindful that ‘government can

use [the] ripeness requirement to whipsaw a

landowner. Ripening a regulatory-takings claim thus

becomes a costly game of ‘Mother, May I’, in which the

landowner is allowed to take only small steps

forwards and backwards until exhausted.”) (citation

28

omitted); see also HRT Enterprises v. City of Detroit,

No. 12-13710, 2022 WL 3142959, at *3 (E.D. Mich.

Aug. 5, 2022) (detailing decade-long litigation and

describing city’s “attempt to contrive a fifth bite [of]

the apple” of ripeness to prevent a ruling on

landowner’s takings claim) (emphasis added);

Michael K. Whitman, The Ripeness Doctrine in the

Land-Use Context: The Municipality’s Ally and the

Landowner’s Nemesis, 29 Urb. Law. 13, 39 (1997)

(futility doctrine exists because “a plaintiff property

owner should not be required to waste his time and

resources in order to obtain an adverse decision that

it can prove would have been made if subsequent

application were made”).

While property owners bear the brunt of the

delays and costs, governments bear some risk as well.

Under First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 319 (1987),

property owners can recover for temporary takings

which may be more likely when a local government

drags out its decision-making. By forcing property

owners to apply, appeal, revise, re-apply, etc.,

governments “make it more likely that the interim

taking will have been for long enough to merit

litigation” that, if successful, warrants just

compensation. Eric Berger, The Collision of the

Takings and State Sovereign Immunity Doctrines, 63

Wash. & Lee L. Rev. 493, 503 (2006).

A relatively modest ripeness rule affords no

special deference to “local concerns,” nor does it

impose any special burdens: it simply treats land use

cases like every other. “In land-use cases, the

necessary event is simply that the government has

adopted a ‘definitive position’ as to ‘how the

29

regulations at issue apply to the particular land in

question.’” Cath. Healthcare Int’l, Inc. v. Genoa

Charter Twp., 82 F.4th 442, 448 (6th Cir. 2023)

(quoting Pakdel, 141 S.Ct. at 2230); see also Knick,

139 S.Ct. at 2169–70 (property rights claimants

cannot be denied access to federal courts while

“[p]laintiffs asserting any other constitutional claim

are guaranteed a federal forum”); Lamar Co., LLC v.

Lexington-Fayette Urban Cnty. Gov’t, No. 5:21-043DCR, 2021 WL 2697127, at *5 (E.D. Ky. June 30,

2021) (contrasting “relaxed” ripeness requirements

for First Amendment claims to stringent ripeness

requirements for Fifth Amendment takings claims);

cf. Susan B. Anthony List, 573 U.S. at 167–68 (free

speech case was ripe without need for further factual

development when delayed judicial review would

impose a substantial hardship on petitioners); Seila

Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct.

2183, 2196 (2020) (separation of powers challenge to

agency action was ripe before “the provision is

actually used”); Michael M. Berger, Supreme Bait &

Switch: The Ripeness Ruse in Regulatory Takings, 3

Wash. U. J.L. & Pol’y 99, 131 n.136 (2000) (decrying

“a huge and unjustified difference between land use

ripeness cases and all other ripeness cases”).

Accordingly, the usual rule is that the government

rejecting a single development application, and a

request for a variance where such is available, is a

“definitive position” sufficient to ripen a takings

claim. Suitum, 520 U.S. at 736–37 (“[W]here the

regulatory regime offers the possibility of a variance

from its facial requirements, a landowner must go

beyond submitting a plan for development and

actually seek such a variance to ripen his claims.”). No

special ripeness rule for takings cases is warranted or

30

justified, and requiring more is “exhaustion” of

administrative remedies—not required in any civil

rights claim—by another name. Pakdel, 141 S.Ct. at

2230 (ripeness in takings cases must be consistent

with the “ordinary operation of civil-rights suits”)

(emphasis added). In short, “[f]or the limited purpose

of ripeness, … ordinary finality is sufficient.” Id. at

2231 (emphasis added).9

Even though this Court rejects the hamster wheel

approach, see Blanchette, 419 U.S. at 143 & n.29

(“where the inevitability of the operation of a statute

against certain individuals is patent,” particular

future contingency was “irrelevant to the existence of

a justiciable controversy”), the message has not been

received by many lower courts. To avoid deciding

takings claims, many courts—including the court

below—have taken advantage of the “tension” and

resulting uncertainty noted in Susan B. Anthony List

and Lexmark and assumed that the takings ripeness

doctrine remains unchanged or even expanded. See,

e.g., F.P. Dev., LLC v. Charter Twp. of Canton, 16

F.4th 198, 203 (6th Cir. 2021) (sua sponte declining to

bar a case as prudentially unripe because “the status

of the prudential ripeness doctrine is uncertain”);

Village Green, 43 F.4th. at 294 (“the final-decision

9 These holdings call into question lower courts’ assumption that

they must consider ripeness in constitutional takings claims

separately from ripeness for all other claims. See, e.g., Dolls, Inc.

v. City of Coralville, 425 F.Supp.2d 958, 988 n.18 (S.D. Iowa

2006) (“Because the ripeness inquiry differs for taking claims,

that claim is analyzed separately.”); 13B Wright & Miller,

Federal Practice & Procedure § 3532.1.1 (3d ed.) (“A special

category of ripeness doctrine surrounds claims arising from

government takings of property.”).

31

requirement not only remains good law but has been

expanded”).

The First Circuit’s opinion thus reflects a

longstanding trend where the courts have de facto

authorized governments’ evasion of the Fifth

Amendment’s protections. As property owners find

their properties saddled with ever more restrictive

land-use regulations, they also find themselves denied

their day in court through doctrines of ripeness that

seem designed to ensure that any “no” can be

interpreted as “maybe.” See Michael M. Berger, The

Ripeness Game: Why Are We Still Forced to Play?, 30

Touro L. Rev. 297, 305 (2014) (“Anyone who thinks

that he can get a planning agency to tell him what he

CAN do on his land … doesn’t understand the

planning process.”); Anastasia Boden et al., The Land

Use Labyrinth: Problems of Land Use Regulation and

the Permitting Process, released by the Regulatory

Transparency Project of the Federalist Society 21

(Jan. 8, 2020)10 (nationwide, “there is always the

potential for [a land use] authority to, in effect, deny

authorization to begin a project indefinitely without

ever giving a definitive answer on a permit

application”). But when courts refuse to consider the

issues and defer to the very government claimed to be

unconstitutionally interfering with an owner’s

property rights, they bypass the federal judiciary’s

primary purpose to resolve constitutional questions.

Marbury v. Madison, 5 U.S. at 178 (determining

whether government action “be in opposition to the

constitution” is “the very essence of judicial duty”).

10 https://rtp.fedsoc.org/paper/the-land-use-labyrinth-problemsof-land-use-regulation-and-the-permitting-process/.

32

Although the per curiam Pakdel opinion offered

apparently clear guidance, permit applicants continue

to struggle to access federal courts when the

government denies them the ability to build on their

property. Here, the town twice clearly said “no” and

“‘no’ means no.” TrafficSchoolOnline, Inc. v. Clarke,

112 Cal.App.4th 736, 741 (2003). If landowners must

seek an answer from government, government must

be required to actually provide one and be bound by

that answer. Niz-Chavez v. Garland, 141 S.Ct. 1474,

1486 (2021) (“If men must turn square corners when

they deal with the government, it cannot be too much

to expect the government to turn square corners when

it deals with them.”).

Conclusion

This Court should grant the petition.

DATED: October 2023.

Respectfully submitted,

PAUL REVERE, III

JEREMY TALCOTT*

Law Offices of

*Counsel of Record

Paul Revere, III

DEBORAH J. LA FETRA

226 River View Lane

ROBERT H. THOMAS

Centerville, MA 02601

Pacific Legal Foundation

Telephone: (508) 237-1620 555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JTalcott@pacificlegal.org

Counsel for Petitioner