Here's a takings cert petition, filed yesterday.
Because this is one of ours, we're not going to comment much beyond reposting the Question Presented, and to let you know this one is about how the "relatively modest" requirement that the government have taken some "definitive position" about what uses are allowed and what uses are not on a claimant's property -- as the Court noted in Pakdel, a "de facto" decision is enough. Yes, prudential ripeness.
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?
A special shout-out to our law firm colleagues Jeremy Talcott and Deb La Fetra, who carried the load on this one.
Now we wait.
Petition for Writ of Certiorari, Haney v. Town of Mashpee, No. 23-____ (U.S. Nov. 1, 2023)
