Marek v. State of Rhode Island , 702 F.3d 650 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 12-1460
PETER MAREK,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Gary E. Blais on brief for appellant.
Peter F. Kilmartin, Attorney General, and Gregory S. Schultz,
Special Assistant Attorney General, on brief for appellees State of
Rhode Island and related parties.
Michael A. DeSisto and DeSisto Law on brief for appellees Town
of Hopkinton and related parties.
Mark P. Dolan and Rice Dolan & Kershaw on brief for appellee
Commonwealth Engineers and Consultants, Inc.
Melody A. Alger and Alger Parker LLP on brief for appellees
Hopkinton Associates, LLC and related parties.
December 27, 2012
SELYA, Circuit Judge. 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.
"Because this case was decided below on a motion to
dismiss, we rehearse the facts as revealed by the complaint and the
documents annexed thereto." Katz v. Pershing, LLC, 672 F.3d 64, 69
(1st Cir. 2012). The plaintiff, Peter Marek, owns a home located
on Grassy Pond Road in Hopkinton, Rhode Island. Hopkinton
Associates, LLC (the developer) aspired to develop a 76-unit
residential subdivision (called Kenney Hill Farm Estates) on a 192-
acre tract adjacent to the plaintiff's land. The Hopkinton
Planning Board approved the developer's application for the
subdivision on condition that Grassy Pond Road be reconfigured and
reconstructed.
The road reconstruction envisioned by the Planning Board
implicated wetlands and, therefore, required a permit from the
Rhode Island Department of Environmental Management (the DEM). See
R.I. Gen. Laws §§ 2-1-18 to 2-1-24. The developer applied for the
necessary permit, and the DEM granted it. In taking this action
and in framing the permit, the DEM relied on surveys and maps
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prepared by Commonwealth Engineers and Consultants, Inc.
(Commonwealth), a firm retained by the developer.
The plaintiff, a steadfast opponent of the planned
development, attempted to appeal the issuance of the permit to the
DEM's Administrative Adjudication Division. He asserted that the
proposed road reconstruction would encroach upon his land. To
bolster this assertion, he alleged that the agency misconceived the
Commonwealth surveys.
The DEM dismissed the plaintiff's administrative appeal,
concluding that he lacked standing to challenge the issuance of the
permit. It also denied the plaintiff's motion to reopen the
administrative proceedings.
Undaunted, the plaintiff appealed to the state superior
court. See id. § 42-35-15. While his appeal was pending, the
developer sold its land to Aubleen Farms, LLC (Aubleen). The
complaint does not allege that Aubleen showed any interest in the
developer's subdivision proposal and, in all events, Aubleen
allowed the DEM permit to expire.
After these events transpired, the plaintiff moved
voluntarily to dismiss his state-court appeal as moot. The
superior court obliged. For aught that appears, the Kenney Hill
Farm Estates project is a dead letter, and the proposed
reconstruction of Grassy Pond Road has not gone forward.
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The abandonment of the subdivision proposal and the
termination of the state-court litigation were not the final
chapters in the saga of Kenney Hill Farm Estates. Rather, the
plaintiff repaired to the United States District Court for the
District of Rhode Island and filed suit against the State of Rhode
Island, the DEM, the town of Hopkinton, the Planning Board, the
developer, Commonwealth, and an array of related parties. Invoking
42 U.S.C. § 1983, he alleged a myriad of constitutional and pendent
state-law claims. Principally, he asseverated that wrongfully
granted deadline extensions, the DEM's embrace of the Commonwealth
surveys (surveys that he alleged for the first time were
fraudulent), and other problematic aspects of the permitting
process resulted in a taking of his property by, among other
things, clouding his title.
All the defendants moved to dismiss. See Fed. R. Civ. P.
12(b)(1), (b)(6). In a thoughtful opinion, the district court
granted these motions, jettisoning the plaintiff's federal claims
and declining to exercise supplemental jurisdiction over his state-
law claims. Marek v. Rhode Island, No. 11-033, 2012 WL 693566(D.R.I. Mar. 2, 2012). Of particular pertinence for present
purposes, the court held that it lacked jurisdiction to entertain
the plaintiff's takings claim because the plaintiff had failed to
pursue available state procedures in an endeavor to secure just
compensation. See id. at *3-4.
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We have said, with a regularity bordering on the
monotonous, that when a district court accurately sizes up a case
and disposes of it through a well-reasoned decision, it often will
behoove a reviewing court not to write at length when placing its
stamp of approval on the judgment below. See, e.g., Eaton v. Penn-
Am. Ins. Co., 626 F.3d 113, 114 (1st Cir. 2010); Seaco Ins. Co. v.
Davis-Irish, 300 F.3d 84, 86 (1st Cir. 2002); Ayala v. Union de
Tronquistas de P.R., Local 901, 74 F.3d 344, 345 (1st Cir. 1996);
In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st
Cir. 1993). The case at hand falls squarely within this taxonomy.
Accordingly, we affirm the judgment below for substantially the
reasons limned in the district court's opinion. We add only four
comments.
First. The plaintiff argues that his takings claim is in
fact ripe because the DEM reached a final decision as to the
issuance of the wetlands permit. This argument rests on a
misunderstanding of the ripeness requirements for a takings claim.
In Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Court held
that given the unique qualities of a federal regulatory takings
claim, a plaintiff must satisfy two distinct ripeness requirements
before a federal court may exercise jurisdiction over such a claim.
Id. at 186, 194. This binary test comports with the text of the
Takings Clause, which comes into play when private property is
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"taken" and when the sovereign has effected the taking without
granting "just compensation." U.S. Const. amend. V. For a takings
claim to be ripe, prior state administrative and/or judicial
processes not only must have wrought a taking of particular
property but also must have established the sovereign's refusal to
provide just compensation for the property taken. See Williamson
Cnty., 473 U.S. at 186, 194; Downing/Salt Pond Partners v. Rhode
Island, 643 F.3d 16, 20 (1st Cir. 2011).
In a regulatory takings case, satisfying the first of
these requirements entails the existence of a final decision as to
"the application of the regulations to the property." Williamson
Cnty., 473 U.S. at 186. The plaintiff's complaint shows that he
has fulfilled this requirement.
The second ripeness requirement, however, has a different
dimension. Satisfying it entails a showing that the plaintiff has
run the gamut of state-court litigation in search of just
compensation (provided, however, that the state makes available
adequate procedures for this purpose). Id. at 194-95.
The plaintiff conflates these two distinct ripeness
requirements. The DEM's final decision to grant the permit and the
superior court's dismissal of his appeal only address the first of
Williamson County's two ripeness requirements. The completion of
this regulatory process did not entail an occasion for the
plaintiff to seek just compensation. To do so, he would have had
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to commence a separate proceeding — and he has not done so. The
second ripeness requirement, therefore, is unfulfilled. See id.Second. To be sure, an exception to the second ripeness
requirement may obtain if a state's procedures for seeking just
compensation are either "inadequate" or "unavailable." Id. at 196-
97. But such exceptions are narrowly confined, and it is not
enough for a plaintiff to show no more than that the adequacy of
state procedures remains "unsure" or that such procedures remain
"undeveloped." Downing, 643 F.3d at 23 (internal quotation marks
omitted).
There is no need to belabor this point. Rhode Island
courts recognize a cause of action for inverse condemnation,
allowing for recovery when a governmental entity exercising land
use restrictions or regulations effectively takes property without
formally exercising its eminent domain power. Annicelli v. Town of
S. Kingstown, 463 A.2d 133, 139 (R.I. 1983). We have previously
held that this inverse condemnation remedy constitutes an adequate
procedural pathway to just compensation. See Downing, 643 F.3d at
17; Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 93
(1st Cir. 2003). It follows inexorably that the plaintiff would
have had to pursue this procedure fully in a state court before a
federal court could exercise jurisdiction over his takings claim.
His failure to do so was fatal to his federal takings claim.
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Third. The plaintiff also advances an impressionistic
Fourth Amendment claim that is difficult to decipher. As best we
can tell, he is arguing that the road reconstruction approved by
both the Planning Board and the DEM encroaches on his property,
thereby effecting an unlawful seizure. This argument, however,
does not present a live controversy.
"A case generally becomes moot when the controversy is no
longer live or the parties lack a legally cognizable interest in
the outcome." Shelby v. Superformance Int'l, Inc., 435 F.3d 42, 45
(1st Cir. 2006) (alteration and internal quotation marks omitted).
In this instance, the expiration of the permit rendered the seizure
claim moot. See id.; see also New Eng. Reg'l Council of Carpenters
v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (finding a challenge to
a permitting scheme moot because the scheme was effectively
repealed). From that point forward, the road reconstruction was no
longer authorized, and the complaint contains no allegations
suggesting that a new permit is in the offing. In point of fact,
the scenario described in the complaint suggests the opposite: the
developer has sold the property, and the new owner (Aubleen) has
expressed no interest in resurrecting the Kenney Hill Farm Estates
project.
In an effort to blunt the force of this reasoning, the
plaintiff strives to convince us that a recognized exception to the
mootness bar applies here: his seizure claim, he says, is capable
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of repetition yet threatens to evade review. See S. Pac. Term. Co.
v. ICC, 219 U.S. 498, 515 (1911). In support, he speculates that
the "permit holder may re-submit its application at any time."
Appellant's Br. at 18. We are not persuaded.
The exception under which the plaintiff seeks refuge is
quite limited and not "'capable of dispelling mootness by mere
invocation.'" Cruz v. Farquharson, 252 F.3d 530, 534 (1st Cir.
2001) (quoting Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 615 (1st
Cir. 1993)). It only applies "if there is some demonstrated
probability that the same controversy, involving the same parties,
will reoccur," id., and if the challenged action would evade review
because it "is in its duration too short to be fully litigated
prior to cessation or expiration," FEC v. Wis. Right to Life, Inc.,
551 U.S. 449, 462 (2007).
Here, however, none of the prerequisites needed to invoke
the exception is present. First, the plaintiff has failed to show
any realistic prospect of seeking anew the same relief against the
same parties. The series of events that led to the plaintiff's
initial complaint was idiosyncratic and highly unlikely to recur.
The developer has sold the land at arm's length to a new owner, and
it would be chimerical to suggest that the developer is likely to
reacquire the property. The new owner does not have (and has not
sought) a permit to reconstruct Grassy Pond Road. Perhaps more
important, there is no reason to believe that the new owner has any
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current or future inclination to develop the site along the lines
originally proposed. The short of it is that no likelihood exists
that the same controversy between the same parties will ever arise
again.
Second, there is no basis for assuming that any new
permit, if issued, would evade review. To establish that a claim
is likely to evade review, the claim must be "inherently
transitory" or there must be "a realistic threat that no trial
court ever will have enough time to decide the underlying issues"
before mootness attaches. Cruz, 252 F.3d at 535. The plaintiff's
complaint is bereft of any such showing. And in the improbable
event that the new owner submits an application for a permit to
reconstruct Grassy Pond Road in the same manner that the plaintiff
has found to be objectionable, there is every reason to believe
that the plaintiff would be able to mount a challenge to the permit
application prior to its final approval. After all, that is
precisely what occurred when the developer secured the original
permit.
Fourth. 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
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at developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
We need go no further. The judgment of the district
court is affirmed.
Affirmed.
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