No. 22-1446

MATTHEW HANEY, as Trustee of the Gooseberry Island Trust,

Plaintiff, Appellant,

v.

TOWN OF MASHPEE; MASHPEE ZONING BOARD OF APPEALS; JONATHAN FURBUSH; WILLIAM A. BLAISEDELL; SCOTT GOLDSTEIN; NORMAN J. GOULD; BRADFORD H. PITTSLEY; SHARON SANGELEER, as they are members of the Zoning Board of Appeals of the Town of Mashpee,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Judith G. Dein, U.S. Magistrate Judge]

Before

Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.

Paul Revere, III, for appellant. Joseph A. Padolsky, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellees.

June 6, 2023 MONTECALVO, Circuit Judge. Matthew Haney ("Haney"), as the Trustee of the Gooseberry Island Trust ("Trust"), brought a complaint against the Town of Mashpee ("Town") and its Zoning Board of Appeals ("Board") alleging an unconstitutional taking of property. The district court dismissed the complaint without prejudice for want of jurisdiction on ripeness grounds. This appeal raises two issues: (1) whether the government has reached a "final" decision on the Trust's request for variances and (2) whether requiring the Trust to submit further applications to the Town would be futile. Because Haney waived one of his arguments relative to the first issue and because his other arguments are meritless, we affirm the dismissal without prejudice.

I. Background

As this case comes to us on a motion to dismiss, "we draw the relevant facts from the complaint." Rivera v. Kress Stores of P.R., Inc., 30 F.4th 98, 100 (1st Cir. 2022). We also consider and rely on "documents incorporated by reference in the complaint . . . as well as matters appropriate for judicial notice." Lass v. Bank of America, N.A., 695 F.3d 129, 134 (1st Cir. 2012).

The Trust is the owner of Gooseberry Island, a four-acre island in Popponesset Bay, Mashpee, Massachusetts. Gooseberry Island lies offshore from the end of Punkhorn Point Road in

- 2 - Mashpee. The Trust also claims ownership in the land at the end of Punkhorn Point Road.1 Gooseberry Island is separated from the mainland by a channel that ranges from forty to eighty feet between mean low and high tides. At low tide, the channel is less than two feet deep, and Gooseberry Island can be accessed by wading across the channel. Prior to the Trust's current ownership of Gooseberry Island, it was used primarily as a camp for hunting and fishing.

A. 2013 Variance Applications

Beginning in 2013, the Trust sought to construct a single-family residence on Gooseberry Island; this endeavor was subject to the Town's zoning bylaws. Per the zoning bylaws, Gooseberry Island is located in an R-3 residential zone and -- as is relevant to the instant appeal -- any residence constructed by the Trust would be required to have at least 150 feet of frontage on a street and an unobstructed paved access roadway within 150 feet. Gooseberry Island is entirely surrounded by water and thus

1 The Trust's alleged ownership in the land at the end of Punkhorn Point Road emanates from SN Trust. In October 2014, the Town filed a complaint in the Massachusetts Land Court challenging SN Trust's right, title, or interest to the land ("Title Dispute Action"). The Land Court entered judgment in favor of SN Trust and affirmed its ownership to the land. The Town has appealed the Land Court's decision. Because the distinction between SN Trust's ow