UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1220
FOURTH QUARTER PROPERTIES IV, INCORPORATED;
THOMAS ENTERPRISES, INCORPORATED,
Plaintiffs - Appellants,
versus
CITY OF CONCORD, NORTH CAROLINA; W. BRIAN
HIATT, Individually and as City Manager of the
City of Concord; RICHARD K. LEWIS,
Individually and as Former Assistant Director
of the Concord Regional Airport and as Current
Interim Director of the Concord Regional
Airport; JOHN W. CROSBY, Individually and as
Former Director of the Concord Regional
Airport,
Defendants - Appellees,
and
JOHN DOE DEFENDANTS 1 THROUGH 12,
Defendant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CA-02-908-1)
Argued: February 3, 2005 Decided: April 13, 2005
Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and James C.
CACHERIS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Chief Judge Wilkins and Judge Cacheris concurred.
ARGUED: George Edwin Butler, II, Dahlonega, Georgia, for
Appellants. Keith J. Merritt, HAMILTON, GASKINS, FAY & MOON,
P.L.L.C., Charlotte, North Carolina, for Appellees. ON BRIEF:
David B. Hamilton, Mark R. Kutny, HAMILTON, GASKINS, FAY & MOON,
P.L.L.C., Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
DUNCAN, Circuit Judge:
Plaintiffs-Appellants, Fourth Quarter Properties IV, Inc. and
Thomas Enterprises, Inc. (“Fourth Quarter”), brought suit against
Defendants-Appellees, the City of Concord, et al. (“Concord” or the
“City”) alleging a taking without just compensation in violation of
the Fifth Amendment, a violation of substantive due process under
the Fourteenth Amendment, and various state law claims. In
response to Concord’s motions for judgment on the pleadings, the
district court dismissed Fourth Quarter’s takings claim as unripe
and stayed the remaining claims pending resolution by the state
courts pursuant to Burford v. Sun Oil Co., 319 U.S. 315 (1943),
which allows a federal court to abstain from hearing matters that
are intimately tied to a state government’s domestic policy.1
Fourth Quarter timely appeals. For the reasons given herein, we
affirm.2
1
The district court also stayed Concord’s motion to dismiss
Thomas Enterprises, Inc. as a plaintiff. That decision is not
before us, and we express no opinion on the merits of that motion.
2
We have appellate jurisdiction over this interlocutory order
because it puts Fourth Quarter “effectively out of court, and its
effect is precisely to surrender jurisdiction of a federal suit to
a state court." Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
714 (1996) (internal quotations and citations omitted); cf. 28
U.S.C. § 1291 (granting appellate jurisdiction over “final
decisions” of district courts).
3
I.
Because the district court granted Concord’s motions under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), we accept
as true the following well pleaded allegations in Fourth Quarter’s
complaint. Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002);
Anderson v. FDIC, 918 F.2d 1139, 1140 (4th Cir. 1990). Fourth
Quarter purchased forty-three acres of land south of the Concord
Regional Airport in July 1996, intending to build a shopping
center. Concord owns the airport. In October 1998, Concord
amended its Unified Devolvement Ordinance (“UDO”) to create a
“buffer zone” around the airport in which any construction would
require, among other things, a Zone Clearance Permit (“ZCP”) from
the City. The UDO noted that a ZCP “shall be granted” if certain
conditions were met. Part of Fourth Quarter’s forty-three acres
fell within this buffer zone.
Subsequent to these events, the parties began discussions
concerning Fourth Quarter’s proposed development of the shopping
center. As part of these discussions, Fourth Quarter showed
Concord its plans for developing the land. After extended
negotiations, Concord signed off on these informal plans, leading
Fourth Quarter to believe that it met the necessary conditions and
that a formal ZCP application would be approved without any
problems.
4
Fourth Quarter later applied formally for a ZCP for a proposed
Toys R Us building. Its application included a site plan noting
both the Toys R Us construction and preliminary sketches for a
Garden Ridge store on the property. Fourth Quarter did not seek a
ZCP for the Garden Ridge construction at that time. Concord,
however, assured Fourth Quarter that it would issue a ZCP for the
Garden Ridge store upon formal application.
After the Toys R Us ZCP submission, the Federal Aviation
Administration (“FAA”) informed Concord that it was contemplating
changing runway approaches to the airport in a way that would
create a runway protection zone (“RPZ”) on part of Fourth Quarter’s
property.3 Although the FAA did not have the authority to prevent
Fourth Quarter from building in the RPZ, Concord risked losing
future federal funding as airport owner if buildings were built in
the RPZ.
After meeting with the FAA, Concord informed Fourth Quarter
that it had determined that the proposed Toys R Us and Garden Ridge
store fell within a federal “no build zone” and that any attempt to
challenge this determination would be futile. Fourth Quarter then
hired an aviation consultant which informed Fourth Quarter both
that federal law placed no direct obligations on it, but rather on
3
Runway Protection Zones are areas that extend beyond runways
designed to remove incompatible objects and activities from that
ground that could obstruct aircraft operations and that could in
turn be endangered by errant aircraft operations.
5
the City, and that the UDO did not yet incorporate the restrictive
no build zone. Fourth Quarter believed, therefore, that it had the
right to a ZCP for the Toys R Us and Garden Ridge locations
pursuant to the UDO.
In May, 2001, Fourth Quarter’s ZCP for the Toys R Us store was
formally denied. Fourth Quarter never formally applied for a ZCP
for the Garden Ridge store, believing that such an application
would be futile in light of Concord’s representations. As a result
of Fourth Quarter’s problems in obtaining the ZCPs, it lost tenants
in its proposed shopping center and suffered economic damages.
Although Concord subsequently allowed Fourth Quarter to begin some
construction in the no build zone, the City still contends that the
no build zone is in place.
Fourth Quarter brought suit in federal district court. As
noted above, the district court dismissed Fourth Quarter’s takings
claim as unripe and stayed the remaining claims under the Burford
abstention doctrine. Fourth Quarter timely appeals.
II.
Whether a claim is ripe presents a question of law which we
review de novo. New Mexicans for Bill Richardson v. Gonzales, 64
F.3d 1495, 1499 (10th Cir. 1995). The ripeness doctrine tends not
to “involve rigid formulas that can be applied with precision and
definiteness.” 15 James Wm. Moore et al., Moore's Federal
6
Practice-Civil § 101.81 (3d ed. 2005). As the parties concede,
Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), controls the ripeness issue in this
case. Under Williamson, a Fifth Amendment takings claim is not
ripe until 1) there is a final decision as to the challenged
regulation’s scope, and 2) the governmental body has denied
compensation for the taking. Id. at 186-87.
A.
Before we address the Williamson factors, however, we must
determine the alleged takings to which it applies. Concord argues
that, because Fourth Quarter never applied for a ZCP for the Garden
Ridge building, we should not consider the alleged taking of the
Garden Ridge location. See Agins v. City of Tiburon, 447 U.S. 255,
260 (1980) (noting that there was “no concrete controversy” when
the plaintiff had “not submitted a plan for development of their
property as the ordinances permit”). We disagree.
“The so-called ‘futility exception’ to the final decision
requirement for due process takings and just compensation claims .
. . excuse[s] the repeated submission of development plans where
the submission would be futile.” Eide v. Sarasota County, 908 F.2d
716, 726 (11th Cir. 1990). On these facts, we hold that it would
have been futile as a matter of law for Fourth Quarter to submit a
formal application for the Garden Ridge location.
7
Fourth Quarter submitted a formal ZCP application for the Toys
R Us construction. The proposed Toys R Us and Garden Ridge
constructions involved almost identical issues and concerns, to the
point that the Toys R Us ZCP application even referenced the
proposed Garden Ridge construction. The parties engaged in
extended negotiations involving the Toys R Us application,
culminating with Concord rejecting the application and expressly
informing plaintiffs that any further attempt to build in the no
build zone would be futile. To force Fourth Quarter to take the
time and expense to file a formal application for the Garden Ridge
ZCP in the face of this express statement after Fourth Quarter had
already submitted one application and the parties had already
engaged in extended negotiation would elevate form over common
sense. Accordingly, we will apply the Williamson ripeness test to
Fourth Quarter’s claims concerning both the Toys R Us and the
Garden Ridge plans.4
4
The often convoluted nature of local zoning disputes counsels
against adopting one-size-fits-all rules concerning ripeness. See
Eide, 908 F.3d 726, n.17. We emphasize that our holding is based
on the combination of facts before us, including, among others, the
fact that Fourth Quarter submitted one formal application, the
extended negotiations that the parties had concerning this
application, and the similarity between the Toys R Us and Garden
Ridge construction plans. We do not address whether one of these
factors alone would implicate the futility doctrine.
8
B.
Fourth Quarter admits that Concord has never denied it
compensation for the alleged taking and, therefore, that its claim
fails the Williamson test set forth above. Fourth Quarter,
however, argues that it cannot request compensation or other relief
through formal state proceedings because such proceedings are
judicial in nature and may result in a res judicata bar of the
takings claim in subsequent federal litigation. The court, Fourth
Quarter continues, cannot force it to ripen its takings claim if
such a ripening will itself prevent the claim from being brought in
federal court. Separately, Fourth Quarter contends that its
federal takings claim must either ripen or fail in this suit
because it is bringing a state inverse condemnation claim in this
action.
Fourth Quarter raises an interesting issue regarding the
interplay between ripeness and res judicata. However, we need not
decide it here. Under North Carolina law, Fourth Quarter had the
right to bring an administrative appeal of Concord’s decision
without involving the state court system. See N.C. Gen. Stat. § 63-
33(c). Specifically, state law establishes an administrative Board
of Appeals with the power “[t]o hear and decide appeals from any
order, requirement, decision, or determination made by [an]
administrative agency” related to the enforcement of airport zoning
regulations. Id. Appeals to this Board of Appeals “may be taken
9
by any person aggrieved . . . by any decision of the administrative
agency,” and the Board of Appeals “[has] all the powers of the
administrative agency from which the appeal is taken.” Id. Fourth
Quarter chose not to pursue this administrative remedy.
Had Fourth Quarter brought an administrative appeal under
section 63-33, that appeal would have raised no res judicata
problems in a subsequent federal suit because unreviewed state
administrative decisions have no res judicata effect in subsequent
federal litigation. Dionne v. Mayor & City Council of Baltimore,
40 F.3d 677, 685 (4th Cir. 1994). Accordingly, any argument that
res judicata concerns should alter or affect the traditional
ripeness inquiry in this case is simply misplaced.5
5
Had Fourth Quarter brought an administrative appeal under
section 63-33, then it would have had thirty days to file for
review of the administrative decision in the North Carolina
superior court “by proceedings in the nature of certiorari.” N.C.
Gen. Stat. § 160A-388 (e). We do not address, because it is not
before us, whether an administrative appeal without the further
recourse to the state courts under section 160A-388(e) would
satisfy ripeness. As the Supreme Court has noted, “a mutually
acceptable solution might well be reached” during the
administrative appeals process which would alter or eliminate the
underlying takings claim. Williamson, 473 U.S. at 187 (internal
quotation omitted). Because Fourth Quarter chose not to pursue its
administrative remedies, we have no way of knowing what Fourth
Quarter’s claim would look like if it had pursued those remedies.
We also do not address at this time what preclusive effect, if
any, future litigation in state court will have on Fourth Quarter’s
potential takings claim. As an initial matter, any opinion as to
how res judicata would operate in a future case would be merely
advisory. More fundamentally, a future federal court will be
obligated to apply North Carolina, not federal, preclusion rules to
determine what preclusive effect, if any, a state court decision
has on future litigation. Dionne, 40 F.3d at 682.
10
Fourth Quarter further argues that the ripeness requirement is
met here because it brings its state inverse condemnation claim in
the same action.6 We do not agree. The ripeness doctrine requires
exhausting administrative remedies such as the one provided by North
Carolina in this case because
[i]f the property owners were to seek administrative
relief under these procedures, a mutually acceptable
solution might well be reached with regard to individual
properties, thereby obviating any need to address the
constitutional questions. The potential for such
administrative solutions confirms the conclusion that the
taking issue . . . simply is not ripe for judicial
resolution.
Williamson, 473 U.S. at 187 (quoting Hodel v. Virginia Surface
Mining & Reclamation Ass’n., Inc., 452 U.S. 264, 297 (1981)).
Takings claims require the court to evaluate factors that cannot be
ascertained until the state agency arrives at a final position. As
the Supreme Court has noted:
Our reluctance to examine taking claims until such a
final decision has been made is compelled by the very
nature of the inquiry required by the Just Compensation
Clause. Although the question of what constitutes a
'taking' for purposes of the Fifth Amendment has proved
to be a problem of considerable difficulty, this Court
consistently has indicated that among the factors of
particular significance in the inquiry are the economic
impact of the challenged action and the extent to which
it interferes with reasonable investment-backed
expectations. Those factors simply cannot be evaluated
until the administrative agency has arrived at a final,
definitive position regarding how it will apply the
regulations at issue to the particular land in question.
6
Fourth Quarter presents no authority to support the position
that an inverse condemnation claim will ripen a takings claim
brought in the same suit.
11
Id. at 190-191 (internal quotations and citations omitted).
The purpose behind the ripeness requirement is underscored by
the facts before us, where informal negotiations between the
parties after the initial refusal caused Concord to grant an
“exception” to Fourth Quarter that allowed eventual construction of
several buildings in the no build zone. Subsequent proceedings
might have yielded additional concessions or even eliminated the no
build zone entirely. In short, this court has no way of knowing
how a formal administrative appeal would have further developed the
facts of this case, and that factual development is essential to
our analysis.7
Fourth Quarter conceded that its takings claim does not
satisfy the Williamson ripeness test. Fourth Quarter did not
pursue the administrative remedies necessary to present a ripe
claim to this court. We therefore affirm the district court’s
decision to dismiss the claim for lack of subject matter
jurisdiction.
7
The Supreme Court has also noted that ripeness concerns prove
especially salient when state agencies have yet to evaluate
properly a matter before the federal court. See Pub. Serv. Comm’n
v. Wycoff Co., 344 U.S. 237, 247 (1952) (“State administrative
bodies have the initial right to reduce the general policies of
state regulatory statutes into concrete orders and the primary
right to take evidence and make findings of fact. . . .
Anticipatory judgment by a federal court to frustrate action by a
state agency is even less tolerable to our federalism [than federal
interference with state courts].”)
12
III.
After determining that Fourth Quarter’s takings claim was
unripe, the district court evaluated Fourth Quarter’s remaining
claims. The court stayed those claims pursuant to the Burford
abstention doctrine. See Burford v. Sun Oil Co., 319 U.S. 315
(1943). We now consider that decision.
We review the district court’s decision to abstain from
hearing these claims for abuse of discretion. Richmond,
Fredricksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250-51 (4th
Cir. 1993). Federal abstention is the exception and not the rule.
Pomponio v. Fauquier County Board of Supervisors, 21 F.3d 1319,
1324 (4th Cir. 1994) (en banc)(overruled in part on other grounds
by Quackenbush v. AllState Ins. Co., 517 U.S. 706, 728-31 (1996)).
Because Fourth Quarter requests damages and not equitable relief in
this action, the federal court may stay the action through
abstention, but may not dismiss the action outright. See
Quackenbush v. AllState Ins. Co., 517 U.S. 706, 730 (1996) (“[W]e
have permitted federal courts applying abstention principles in
damages actions to enter a stay, but we have not permitted them to
dismiss the action altogether.”). Accordingly, we must decide
whether the district court abused its discretion in invoking the
“exceptional” remedy of abstention to stay the instant case. We
hold that it did not.
13
Burford abstention allows a federal court to decline to hear
certain matters if such abstention “is necessary to show proper
regard for a state government’s domestic policy.” Pomponio, 21
F.3d at 1324 (citing Burford, 319 U.S. at 317-18). More
specifically,
Burford allows a federal court to dismiss a case only if
it presents difficult questions of state law bearing on
policy problems of substantial public import whose
importance transcends the result then at bar, or if its
adjudication in a federal forum would be disruptive of
state efforts to establish a coherent policy with respect
to a matter of substantial public concern.
Quackenbush, 517 U.S. at 726-27 (internal quotations omitted).
The Supreme Court has noted that its precedents “do not
provide a formulaic test for determining when dismissal under
Burford is appropriate.” Id. at 727. Burford abstention is almost
never appropriate when a case involves “the presence of a genuine
and independent federal claim;” however, courts should not allow
litigants to “disguise [state law] issues as federal claims” in
order to avoid abstention. Pomponio, 21 F.3d at 1327-28. And, as
we have noted:
In cases in which plaintiff’s federal claims stem solely
from construction of state or local land use or zoning
law, not involving the constitutional validity of the
same and absent exceptional circumstances . . ., the
district courts should abstain under the Burford doctrine
to avoid interference with the State’s or locality’s land
use policy.
Id. at 1328. Applying these standards, the district court found
that Fourth Quarter presented no genuine and independent federal
14
claims but instead only claims related to local land use and zoning
law. Accordingly, it stayed the case for resolution in the state
court.
Fourth Quarter argues that the district court abused its
discretion for two reasons. First, it argues that it presented
independent federal claims--its takings claim and substantive due
process claim--that preclude Burford abstention. Second, it argues
that its “state law” claims are not solely state law zoning claims
because they are tied inexorably to federal aviation law.8 We
address these arguments in turn.
A.
First, Fourth Quarter does not raise independent federal
claims sufficient to defeat Burford abstention. As discussed
above, Fourth Quarter’s takings claim is unripe and cannot operate
to save the state law claims. Additionally, its federal
substantive due process claim is simply a state law claim disguised
as a federal claim. In order to succeed on its due process claim,
8
Fourth Quarter also contends that this case does not raise
issues of “substantial public import” to North Carolina. This
contention contradicts our precedent which notes that “[w]e can
conceive of few matters of public concern more substantial than
zoning and land use laws.” Pomponio, 21 F.3d at 1327. In
addition, North Carolina considers zoning to be important enough to
merit its own specific administrative and judicial review system.
See N.C. Gen. Stat. §§ 63-33(c), 160A-388 (e). In other words,
both Fourth Circuit precedent and North Carolina law belie Fourth
Quarter’s claim that this issue is not of “substantial public
import” to North Carolina.
15
Fourth Quarter must establish, inter alia, that Concord engaged in
“state action so arbitrary and irrational, so unjustified by any
circumstance or governmental interest, as to be literally incapable
of avoidance by any pre-deprivation procedural protections or of
adequate rectification by any post-deprivation state remedies.”
Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 440 (4th Cir.
2002) (internal quotation omitted). One cannot, however, determine
whether Concord’s actions were arbitrary and irrational without
adjudicating the rights and duties of the parties pursuant to the
state zoning law at issue. Additionally, determining whether
Fourth Quarter could have avoided the City’s actions through “pre-
deprivation procedural protections” or “post-deprivation state
remedies” requires determining what those protections and remedies
are under state law. We agree with the district court’s assessment
that Fourth Quarter’s due process claim “is inextricably woven with
[its] state law zoning dispute claims.” JA 211.9 Accordingly, the
due process claim is not an independent federal claim sufficient to
survive Burford abstention.
9
We also note that all of Fourth Quarter’s state law claims--
which include breach of contract, inverse condemnation, unfair
trade practices, negligent and/or willful misrepresentation, and
tortious interference with actual and prospective leases--are
related to the underlying zoning dispute and that the district
court did not abuse its discretion in applying Burford abstention
to those claims.
16
B.
Fourth Quarter also argues that abstention should not apply
because Concord’s actions are motivated by federal aviation policy.
Importantly, however, Fourth Quarter concedes that it is not
arguing that preemption occurs here. Appellant’s Reply Brief at
11. A preemption claim may have operated to present a federal
claim sufficient to defeat Burford abstention. See New Orleans
Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 363
(1989) (not allowing Burford abstention when federal preemption was
the primary issue presented). However, Fourth Quarter argues only
that Concord models its regulations after federal aviation law and
that Concord’s actions are motivated by a desire to remain in
compliance with federal aviation law. A claim of mere federal
influence, without more, does not rise to the level of a preemption
claim necessary to defeat abstention.
Fourth Quarter’s arguments also contradict well-settled law
which establishes that land use and zoning decisions, even
concerning land by airports, are matters of local, not federal,
concern. As other courts have recognized, “[t]he [Federal Aviation
Administration] has acknowledged that land use matters within the
federal aviation framework are intrinsically local.” Gustafson v.
City of Lake Angelus, 76 F.3d 778, 784 (6th Cir. 1996); see also
Skysign Int'l v. City & County of Honolulu, 276 F.3d 1109, 1117
(9th Cir. 2002) (upholding a local “land use ordinance” in part
17
because federal aviation law does not “preclude local regulation
. . . that does not actually reach into the forbidden, exclusively
federal areas, such as flight paths, hours, or altitudes”); Greater
Orlando Aviation Auth. v. FAA, 939 F.2d 954, 959 (11th Cir. 1991)
(noting that “the FAA does not have jurisdiction [over] local
zoning”); Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th
Cir. 1990) (“We see no conflict between a city's regulatory power
over land use, and the federal regulation of airspace, and have
found no case recognizing a conflict.”).
In fact, as Fourth Quarter’s own aviation expert noted, local
control over land use and zoning issues is so well established that
“[t]he FAA is not [even] empowered to prohibit or limit proposed
construction it deems dangerous to air navigation.” Aircraft
Owners and Pilots Ass’n v. FAA, 600 F.2d 965, 967 (D.C. Cir. 1979)
(holding that an FAA determination that proposed construction would
pose a hazard to air navigation did not present a ripe claim
because the determination was not legally enforceable). The FAA
instead exerts only a “practical impact” on local land use by
“encouraging . . . voluntary cooperation.” Id. As the FAA itself
has acknowledged, “[z]oning is a power reserved to the states under
the U.S. Constitution. . . . Neither the FAA nor any other agency
of the Federal government has zoning authority.” Federal Aviation
Administration Proposed Policy Statement and Request for Comment,
60 Fed. Reg. 14701 (March 20, 1995). In other words, the zoning
18
laws at issue in this case are--like state zoning laws everywhere--
squarely issues of local, not federal, law.
To be sure, in its dealings with Fourth Quarter, the City may
have been motivated in part by a desire to maximize its eligibility
for potential federal funding in the future. Such potential
influence, however, does not approach the level of preemption.
Fourth Quarter does not ask us to interpret FAA laws or
regulations, nor does it ask us to pass on the constitutionality of
the state scheme or its compliance with federal statutory law. In
fact, Concord’s compliance (or lack thereof) with federal law is
not at issue in this case. We are presented solely with the issue
of whether, under state zoning law, Concord’s actions toward Fourth
Quarter obligate it to pay damages to Fourth Quarter. As our
precedent holds, that issue is uniquely suited for Burford
abstention:
In cases in which plaintiff’s federal claims stem solely
from construction of state or local land use or zoning
law, not involving the constitutional validity of the
same and absent exceptional circumstances . . ., the
district courts should abstain under the Burford doctrine
to avoid interference with the State’s or locality’s land
use policy.
Pomponio, 21 F.3d at 1328.
IV.
The district court properly dismissed Fourth Quarter’s takings
claim because it was unripe. Additionally, the district court did
19
not abuse its discretion in staying Fourth Quarter’s remaining
state law claims and federal due process claim under Burford.10
The decision of the district court is therefore
AFFIRMED.
10
Fourth Quarter also asks us to “clarify” which issues of
state law must be resolved by state courts under the district court
order. We believe that the district court order and our precedents
are clear: The state court should hear all of Fourth Quarter’s
claims related to or inextricably intertwined with the zoning law
at issue in this case. See Pomponio, 31 F.3d at 1327 (noting that
“federal courts should not leave their indelible print on local and
state land use and zoning law”). Whether Fourth Quarter chooses to
reserve some of its other claims for potential future adjudication
in another forum (subject, of course, to potential claim and issue
preclusion) is a strategic litigation decision on which we express
no opinion.
20