How, as an appellant, do you know you are in trouble? When an opinion starts like this, that's how:
Although a residential subdivision proposed for construction in a bucolic Rhode Island town never saw the light of day, its ghost continues to haunt the parties. But apparitions rarely have substance, and this one is no exception. After careful consideration of the plaintiff's complaint and the district court's order of dismissal, we lay the ghost to rest.
The remainder of the opinion in Marek v. Rhode Island, No. 12-1460 (1st Cir. Dec. 27, 2012) deals with whether a property owner suffered a taking when the State of Rhode Island and other parties granted a permit and approved construction by a neighboring owner of a road that allegedly encroached on the plaintiff's land.
Among other arguments (as far as we can tell), the plaintiff raised a takings claim in federal court after first pursuing an administrative appeal of the permit grant (dismissed for lack of standing), and an appeal to state court that he eventually dismissed (during which time the neighbor sold the property to another developer who allowed the development permit to expire; in the words of the First Circuit, the road project was a "dead letter"). But he didn't file an inverse condemnation action in state court to recover compensation.
Uh oh, you know what that means.
The federal district court thus dismissed a civil rights lawsuit on Williamson County ripeness grounds. The First Circuit agreed, holding that while the plaintiff had secured a final decision applying the regulations to his property, he had not sought and been denied compensation in the courts of Rhode Island, which recognize a cause of action for inverse condemnation. To those versed in ripeness law, you know that this is a fatal defect. The First Circuit rejected the plaintiff's claims that to do so would be futile because the state remedy is "inadequate," holding that "[w]e have previously held that this inverse condemnation remedy constitutes and adequate procedural pathway to just compensation." Slip op. at 7 (citing Downing/Salt Pond Partners v. Rhode Island, 643 F.3d 16 (1st Cir. 2011)).
The opinion ends as badly as it began:
The plaintiff's brief hints at other arguments. These arguments, however, lack both coherence and development. Rather than guessing at what these arguments may or may not portend, we fall back upon the prudential rule that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."
Slip op. at 11 (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
Affirmed.
Marek v. Rhode Island, No. 12-1460 (1st Cir. Dec. 27, 2012)
