PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRONT ROYAL AND WARREN COUNTY
INDUSTRIAL PARK CORPORATION, a
Virginia Corporation,
Plaintiff-Appellee,
v.
TOWN OF FRONT ROYAL, VIRGINIA, a
Municipal Corporation; JOHN
MARLOW, Individually and as former
Mayor of the Town of Front Royal,
Virginia; MICHAEL KITTS,
Individually and as a member of the
Town Council of the Town of Front
Royal, Virginia; EDWIN L. POMEROY,
Individually and as a former
No. 96-1614
member of the Town Council of the
Town of Front Royal, Virginia;
ALBERT G. RUFF, JR., Individually
and as a former member of the
Town Council of the Town of Front
Royal, Virginia; GEORGE E. BANKS,
Individually and as a former
member of the Town Council of the
Town of Front Royal, Virginia;
BRACKENRIDGE H. BENTLEY,
Individually and as former Town
Manager of the Town of Front
Royal, Virginia,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CA-87-19-H)
Argued: October 31, 1996
Decided: January 23, 1998
Before RUSSELL, ERVIN, and WILKINS, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Ervin wrote the
opinion, in which Judge Russell joined. Judge Wilkins wrote an opin-
ion concurring in the judgment.
_________________________________________________________________
COUNSEL
ARGUED: Glenn M. Hodge, WHARTON, ALDHIZER & WEA-
VER, P.L.C., Harrisonburg, Virginia, for Appellants. Robert Clayton
Fitzgerald, HAZEL & THOMAS, P.C., Falls Church, Virginia, for
Appellee. ON BRIEF: Mark D. Obenshain, WHARTON, ALD-
HIZER & WEAVER, P.L.C., Harrisonburg, Virginia, for Appellants.
Myron C. Smith, Fairfax, Virginia, for Appellee.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Defendants-Appellants Town of Front Royal, Virginia (Town) and
various individuals currently or previously associated with the
Town's governance appeal from an order reinstating a prior summary
judgment order and awarding recalculated damages. That order was
made pursuant to the district court's exercise of jurisdiction following
state court proceedings after we ordered abstention according to the
doctrine promulgated in Burford v. Sun Oil Co. , 319 U.S. 315 (1943).
The case initially arose from Plaintiff-Appellee Front Royal and War-
ren County Industrial Park Corporation's (IPC) 42 U.S.C. § 1983
action claiming an unconstitutional taking and violations of substan-
tive due process and equal protection, predicated upon the appellants'
2
failure to construct sewer lines to IPC's lots as mandated by the 1978
Virginia Annexation Court. We reverse.
I.
We are very familiar with the factual background underlying this
action and will not recite it in full yet again. Suffice it to say, IPC
owns 86 acres of land, purchased in 1973 and 1974, that were
annexed by the Town in 1978 pursuant to the order of a Virginia
Annexation Court. That order also directed the Town to provide
sewer service to IPC's lots by December 31, 1983, later extended two
years, which the Town failed to do. After various legal wranglings,
IPC filed the instant case in federal district court on February 12,
1987, alleging that the failure to provide sewer service violated its
rights under the Fifth and Fourteenth Amendments.
The last time IPC was before us, we vacated, on the basis of
Burford abstention, the district court's orders granting summary judg-
ment and damages to IPC.1 Front Royal and Warren County Indus.
Park Corp. v. Town of Front Royal, 945 F.2d 760 (4th Cir. 1991)
(hereinafter Front Royal V), cert. denied, 503 U.S. 937 (1992).2 We
instructed the district court to retain jurisdiction pending the outcome
of state court proceedings. In particular, we envisioned that IPC
should seek whatever remedy was appropriate under Virginia's
Annexation Court scheme as well as whatever other state remedies
might be available, suggesting a common law cause of action to vin-
dicate the due process rights afforded under the Virginia Constitution,
Art. I, § 11 to those who have been unlawfully deprived of their prop-
erty. Id. at 764-65.
_________________________________________________________________
1 IPC's case was consolidated with a companion case filed the same
day by Fred and Gladys McLaughlin, McLaughlin v. Town of Front
Royal, No. CA-87-00020 (W.D. Va. filed Feb. 12, 1987), individual
owners of property annexed by the Town but similarly not provided with
sewer service. Fred McLaughlin was the sole shareholder of IPC.
2 Although we previously labeled the various decisions in this lengthy
litigation differently, to avoid further confusion we adopt the district
court's nomenclature in denominating our most recent decision Front
Royal V and continue the numbering from there.
3
IPC subsequently requested both the Town and the County of War-
ren to reconvene the Annexation Court, and, when that apparently
failed, it sought relief in the state court system. The Circuit Court of
Warren County did grant a writ of mandamus to compel the Town to
extend sewer lines to each of IPC's lots, but it refused to award dam-
ages under state law. See Front Royal and Warren County Indus.
Park Corp. v. Town of Front Royal, No. 92-121, slip op. at 14 (War-
ren County, Va., Cir. Ct. Apr. 14, 1993); Front Royal and Warren
County Indus. Park Corp. v. Town of Front Royal, No. 92-121 (War-
ren County, Va., Cir. Ct. June 30, 1993) (letter ruling). The Supreme
Court of Virginia affirmed the grant of mandamus, see Town of Front
Royal v. Front Royal and Warren County Indus. Park Corp., 449 S.E.
794 (Va. 1994) (Front Royal VI), but it refused to accept appeal on
the question of damages, see Front Royal and Warren County Indus.
Park Corp. v. Town of Front Royal, No. 931649 (Va. Mar. 4, 1994).
IPC thereafter moved the district court to reinstate its prior judg-
ment and amend the previous award of damages and attorney's fees.
In a published opinion, see 922 F. Supp. 1131 (W.D. Va. 1996)
(Front Royal VII), the district court granted IPC's motion and, follow-
ing the completion of the sewer lines by the Town, now awards IPC
damages of $359,441.47 and attorney's fees of $105,317.19.
This appeal naturally followed, and thus the opportunity for Front
Royal VIII.
II.
IPC originally filed this action pursuant to 42 U.S.C. § 1983. Fed-
eral court jurisdiction to hear § 1983 cases exists under the general
federal question jurisdiction statute, 28 U.S.C.§ 1331. This appeal
arises from a final order below, and we nominally possess appellate
jurisdiction under 28 U.S.C. § 1291.
Normally, that would end our jurisdictional inquiry, but this is far
from a normal case. Because we previously ordered Burford absten-
tion, but directed the district court to retain federal jurisdiction, we
believe it is necessary to address whether federal jurisdiction remains
given the events and court dispositions that have transpired in the
interim.
4
A.
As we recognized in Front Royal V, "[a]t the heart of the case
before us is the question whether Front Royal ever complied with the
orders of the Annexation Courts. The answer requires interpretation
of the Annexation Courts' orders, which is a determination that the
Annexation Court was uniquely qualified to make." Front Royal V,
945 F.2d at 764. We suggested that, although ten years had run, per-
haps the 1978 Annexation Court could be reconvened under the spe-
cial circumstances of this case. Id. at 764 n.*. The statute granting an
Annexation Court a ten-year existence by its own terms permits the
court to be
reconvened at any time during the ten-year period on its
own motion, or on motion of the governing body of the
county, or of the city or town, or on petition of not less than
fifty registered voters or property owners in the area
annexed; provided, however, if the area annexed contains
less than 100 registered voters or property owners, then a
majority of such registered voters or property owners may
petition for the reconvening of the court.
Va. Code Ann. § 15.1-1047(b). By itself, then, IPC could have no
standing to cause the Annexation Court to reconvene.
We decided Front Royal V on September 19, 1991. The very next
day, a notice pursuant to Virginia Code § 8.01-335 was sent to the
parties' counsel from the clerk of the Warren County Circuit Court
that the matter of the annexation would be stricken from the court's
docket on October 21, 1991. See J.A. at 899. The notice provided for
an objection, which had to be returned five days prior to October 7.
IPC's counsel did not sign the objection until December 11, 1991.
A few days before that, on December 6, 1991, IPC did request both
the Town and the County of Warren to reconvene the Annexation
Court, see J.A. at 896-98; neither acted on the request. Shortly there-
after, on January 21, 1992, Judge Wetsel of the Circuit Court of War-
ren County determined that the Annexation Court ceased to exist for
lack of activity in the matter and removed the case from the docket.
See J.A. at 900.
5
We think this unexplained delay of IPC's counsel in seeking to
reconvene the Annexation Court raises a real question as to whether
IPC zealously sought to vindicate its state remedies in accordance
with our directive in Front Royal V. IPC would no doubt argue that
even had the Annexation Court been reconvened, it was powerless to
award IPC damages for appellants' refusal to comply with its order.
See Br. of Appellee at 15. A reconvened annexation court is limited
to enforcing the terms and conditions of its original decree, and it may
not reconsider or rehear its prior orders. City of Portsmouth v. City of
Chesapeake, 136 S.E.2d 817, 826 (Va. 1964). This view of the lim-
ited nature of the reconvened annexation court was reconfirmed ulti-
mately by the Virginia Supreme Court in Front Royal VI, 449 S.E.2d
at 797.
Notwithstanding this dissolution of the Annexation Court, how-
ever, IPC's failure to pursue a remedy there may be more fundamen-
tal than may at first appear. A sister statute expressly provides:
Notwithstanding the provisions of § 15.1-1047, in the event
a decision granting any motion or petition for annexation is
subjected to collateral attack in any court, state or federal,
the court created by § 15.1-1038 shall not be dissolved; or,
if heretofore or hereafter dissolved at the time such attack
is made or is pending, shall be revived. The court shall
thereafter continue in existence until such time as all collat-
eral issues have been resolved, and until one year thereafter,
and shall have the same powers and duties as set out in
§ 15.1-1047. In addition, it shall have the power to fully
implement any order or decision of any court of competent
jurisdiction with respect to such collateral attack.
Va. Code Ann. § 15.1-1047.2 (emphasis added). This provision has
apparently not been interpreted by any court in a published disposi-
tion. To the extent that the 1978 Annexation Court conditioned the
annexation on the Town providing sewer lines to IPC's lots, this
entire litigation may be seen as a collateral attack on that annexation
order. That Annexation Court may thus be revived. No procedures are
spelled out for its revival, but given that it will possess greater powers
than a merely reconvened court where there has not been a collateral
attack, revival might not be limited only to those methods of recon-
6
vening laid out in § 15.1-1047. How extensive these greater powers
are is also unclear since they have never been interpreted by a court
heretofore. The point, however, is that IPC, directed to pursue state
remedies, failed to even test this provision.
B.
Although it remains unclear to what extent IPC's alleged injuries
may have been remedied by recourse to the Annexation Court, it is
still necessary to examine IPC's pursuit of other state remedies. Pur-
suant to Virginia Code § 15.1-1048, IPC sought a writ of mandamus
to compel the Town to build the sewer lines and combined with it a
prayer for damages. In an opinion of October 23, 1992, Judge Wetsel
of the Circuit Court of Warren County concluded as a matter of law
that IPC could proceed on both grounds and noted that monetary
relief may be available through a declaratory judgment action, a con-
stitutional takings action, a common law damage action to enforce the
due process rights of the state constitution, and/or an inverse condem-
nation action. Front Royal and Warren County Indus. Park Corp. v.
Town of Front Royal, No. 92-121, slip op. at 10-11 (Warren County,
Va., Cir. Ct. Oct. 23, 1992).
Judge Wetsel subsequently granted IPC the writ of mandamus on
April 14, 1993, but stayed its issuance on May 10 and ordered IPC
to
file a Bill of Particulars setting forth the specific facts upon
which it bases its claim for damages against the Town,
which Bill of Particulars shall also be accompanied by writ-
ten memorandum of authorities setting forth the specific
right of action upon which the Petitioner seeks the recovery
of damages from the Town, which memorandum of authori-
ties shall set forth the prima facie elements of that right of
action.
J.A. at 1094. IPC, in the Bill of Particulars, did seek damages "under
the common law" as well as pursuant to 42 U.S.C.§ 1983. See J.A.
at 1019-20. However, in its memorandum, IPC only discussed with
regard to its common law claim whether such damages are precluded
by seeking mandamus, see J.A. at 1023-26, a point on which the cir-
7
cuit court had already permitted IPC to proceed. Despite the state
court's suggestions of statutory and case law avenues on which IPC
might recover monetary relief, IPC simply failed to address them, nor
did it "set forth the prima facie elements" of its common law right of
action as it was directed to do. IPC even argued under its federal tak-
ings claim that it could not win an inverse condemnation claim under
existing state law. See J.A. at 1026-27.
It is thus hardly surprising, then, that in a letter ruling of June 30,
1993, Judge Wetsel denied IPC's claim for damages under state law.
In particular, he ruled that IPC could not recover damages on three
different bases: (1) because there is no constitutional right to sewer
service, its denial is the failure to confer a benefit, and thus there is
no taking of IPC's property as contemplated by the Virginia Declara-
tory Judgment Act, the predicate for a right of action under Va. Code
§ 8.01-187; (2) because IPC was not denied use of its land or the right
to sell it, there could be no unconstitutional taking, and "[n]o inverse
condemnation action will lie in Virginia where the acts complained
of are to confer a benefit upon the property"; and (3) because "no stat-
utory authority exists under the general mandamus statute which will
permit the plaintiffs to recover damages merely for the violation of
the ministerial act giving rise to the mandamus action," any such
damage claim must have an independent basis in law, which is appar-
ently lacking in this case. Front Royal and Warren County Indus.
Park Corp. v. Town of Front Royal, No. 92-121, slip op. at 1-4 (War-
ren County, Va., Cir. Ct. June 30, 1993) (letter ruling). Despite IPC's
failure to adequately argue the basis of its damage claim, the state
court did consider, and reject, three of the four avenues that it had
suggested IPC pursue eight months before. The one remaining avenue
not explicitly rejected is the common law damage action to enforce
the due process rights of Article I, section 11 of the Virginia Constitu-
tion which is precisely the remedy we recommended to IPC in Front
Royal V, 945 F.2d at 765. However, this argument was implicitly
rejected in (2) above where the court found there could be no uncon-
stitutional taking on these facts. Moreover, Judge Wetsel was well
aware that mandamus, which he had granted, would not lie unless
"there is no other available specific and adequate remedy." Front
Royal and Warren County Indus. Park Corp. v. Town of Front Royal,
No. 92-121, slip op. at 9 (Warren County, Va., Cir. Ct. Oct. 23, 1992)
8
(quoting Richmond, F. & P. R.R. Co. v. Fugate , 142 S.E.2d 546 (Va.
1965) (internal quotation marks omitted)).
As mentioned above, the Virginia Supreme Court heard appeal in
Front Royal VI only on the issue of mandamus. It refused to grant
appeal on IPC's damage claim, finding "no reversible error in the
judgment complained of," Front Royal and Warren County Indus.
Park Corp. v. Town of Front Royal, No. 931649 (Va. Mar. 4, 1994),
and it also denied a petition for rehearing of that refusal. See J.A. at
1070. IPC did argue in its petition for rehearing, but to no avail, that
Judge Wetsel applied City of Virginia Beach v. Virginia Land Inv.
Ass'n No. 1, 389 S.E.2d 312 (Va. 1990), which stands for the proposi-
tion that, to constitute a taking, the owner must be"deprived of all
economically viable uses of its property," id. at 314 (emphasis added),
in a manner contrary to that in Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992). See J.A. at 1265-68. Therefore, the
state circuit court decision denying IPC's state law damage claim is
the law of the case. With regards to the nature of the mandamus rem-
edy, the Virginia Supreme Court reiterated (twice) that the writ will
issue only where "there is no adequate remedy at law," and, addition-
ally, "where there is no other available specific and adequate
remedy." Front Royal VI, 449 S.E.2d at 796 (internal quotation marks
and citations omitted) (emphasis in original). This restatement of the
law on mandamus, together with the refusal to hear the damages
issue, must be taken by us as a firm statement by Virginia's highest
court, in the posture with which that court was presented the matter,
that IPC possessed no other state law remedy.
It is with this failure to succeed on its state law damage claim that
IPC returned to federal district court to seek to have that court's prior
judgment reinstated. The district court found that IPC's § 1983 action
as predicated on a takings claim was now procedurally ripe, given that
IPC had unsuccessfully utilized the state law procedures to seek mon-
etary relief for the alleged taking, which is all that is required by
Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473
U.S. 172, 195 (1985). Front Royal VII, 922 F. Supp. at 1143-45. More
particularly, the district court rejected appellants' contention that IPC
had ignored its duty to pursue the state remedies. The court under-
stood the Virginia Supreme Court's denial of IPC's petition to recon-
sider its takings jurisprudence as a reaffirmation of that jurisprudence
9
and thus believed that it would have been no more than a "futile and
idle exercise" to require IPC "to argue a premise of law which the
highest court of a jurisdiction has explicitly and unequivocally
rejected." Id. at 1144 n.20 (citing Kinzli v. City of Santa Cruz, 818
F.2d 1449 (9th Cir.), amended by 830 F.2d 968 (9th Cir. 1987), cert.
denied, 484 U.S. 1043 (1988)).
On the other hand, it certainly seems that some weight should be
given to appellants' argument that IPC initially failed to properly
claim or plead entitlement to relief under any potentially available
state remedy. See Reply Br. of Appellants at 2. IPC simply did not
follow the order of the state circuit court to present to that court the
prima facie elements of its rights of action, nor did IPC even discuss
the approaches for relief that that court had suggested to it. Appellants
argue that, as a result of this failure, the order denying IPC's state law
damage claim must be considered void. Id. (citing Patterson v.
Anderson, 74 S.E.2d 195, 203 (Va.) ("A decree cannot be entered in
the absence of pleadings upon which to found the same, and, if so
entered, it is void." (internal quotation marks and citations omitted)),
cert. denied, 345 U.S. 965 (1953). Patterson 's rule, however, applies
where a judgment grants the relief sought in a defective pleading, not
where the judgment denies the relief sought in the defective pleading.
Nevertheless, it strikes us as quite odd and improper that IPC
should benefit, either surreptitiously or through bad lawyering, from
its failure to vigorously pursue state remedies, in dereliction of the
duty imposed by us, when all the while it knew there was a federal
district court sympathetic to its claims. In addition, IPC's failure to
test the powers of the revivable Annexation Court under Virginia
Code § 15.1-1047.2 just doesn't sit well with us. In a previous case
of Pullman abstention, we refused to allow appellants to return to fed-
eral court where they had failed to timely perfect an appeal to the Vir-
ginia Supreme Court, since to do so "would only encourage sloppy
lawyering and disrespect for state procedure." National Capital
Naturists, Inc. v. Board of Supervisors, 878 F.2d 128, 132 (4th Cir.
1989); cf. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 16 n.16 (1987)
(stating that "Texaco cannot escape Younger abstention by failing to
assert its state remedies in a timely manner"). Here the affront is more
egregious, for IPC only perfunctorily performed its duty to return to
state court, thereby not only abusing the integrity of state law and pro-
10
cedure by failing to fully advocate its position, but also flouting our
very purpose in ordering abstention in the first place. While it may be
true now that IPC's state law damage claim amounts to a "futile and
idle exercise," such was not the case when we abstained. We find that
IPC was obliged to make a good faith effort to seek just compensation
under state law. Failing to pursue a statutory avenue open to it and
failing to follow a state court's order to present the prima facie ele-
ments of its rights of action do not a good faith effort make.
C.
Subsequent to our decision in Front Royal V, we held that normally
in cases of Burford abstention the appropriate course is for the district
court to dismiss the action altogether instead of retaining jurisdiction
pending the state court proceedings. See Pomponio v. Fauquier
County Bd. of Supervisors, 21 F.3d 1319, 1328 (4th Cir.) (en banc),
cert. denied, 513 U.S. 870 (1994). In the unusual circumstances of
this case, however, we instructed the district court to retain jurisdic-
tion. In light of our decision in Pomponio and IPC's behavior in pur-
suing its state law damage claim, it would appear that IPC would
deserve to have its case dismissed after all.
Since our decision in Pomponio, however, the Supreme Court has
declared that dismissal, based on abstention principles, is appropriate
only where the relief sought is equitable or otherwise discretionary.
In damages actions, a federal court cannot dismiss the action but can
enter a stay to await the conclusion of state proceedings. See
Quackenbush v. Allstate Ins. Co., 135 L. Ed. 2d 1, 22 (1996).
Quackenbush dealt with an action that sought neither equitable nor
other discretionary relief that was dismissed under the Burford
abstention doctrine. Although the Court did not so hold, it left open
the possibility that "Burford might support a federal court's decision
to postpone adjudication of a damages action pending the resolution
by the state courts of a disputed question of state law." Id. Although
not squarely before us, we note that Quackenbush appears to have
implicitly overruled our holding on this issue in Pomponio, a damages
action. At the same time, it appears that our earlier decision in this
case in Front Royal V, viz. the instruction to the district court to retain
federal jurisdiction, remains supportable under current abstention
jurisprudence.
11
Because not before the Court, Quackenbush provides no guidance
on appropriate federal court action when litigants who have been sent
to state court pursuant to Burford return to the federal forum follow-
ing the state court resolution of the state law questions. In cases of
Pullman-type abstention, see Railroad Comm'n v. Pullman Co., 312
U.S. 496 (1941), litigants are not necessarily permitted to return to
federal court, despite the stay order, if in state court they in fact liti-
gated their federal claims and did not instead make an England reser-
vation of their right to have a federal court disposition of the federal
issues, see England v. Louisiana State Bd. of Medical Examiners, 375
U.S. 411, 419-22 (1964). See, e.g., Promovision Int'l Films, Ltd. v.
Trapani, 744 F.2d 1063, 1064-65 & 1064 n.1 (4th Cir. 1984). Pre-
sumably, similar requirements are appropriate for return to federal
court after Burford abstention.
Much more uncertain would be the intersection between an
England-type reservation in the Burford abstention context and the
ripeness requirement under Williamson County Reg'l Planning
Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), for the existence of
federal court subject matter jurisdiction for a claim predicated on the
Takings Clause. In Williamson County, the Supreme Court held that
a would-be § 1983 litigant's takings claim is not procedurally ripe
until state avenues of compensation have been exhausted. Id. at 194-
95 & 194 n.13. Williamson County would thus seem to presuppose
that a would-be Takings Clause claimant would proceed first in state
court and thus could never find itself, as IPC does here, in a situation
in which it in fact went first to federal court and was from thence
directed to state court, via Burford abstention. Nevertheless,
Williamson County does not require that the federal takings claim
actually be litigated in state court. Although we have not had much
occasion to consider Williamson County's ripeness requirement, but
see Naegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d
172, 174-75 (4th Cir. 1988), the Eleventh Circuit has determined, in
a cogent analysis, that an England-type reservation may be made of
a federal takings claim when a litigant proceeds first in state court
pursuant to Williamson County. See Fields v. Sarasota Manatee Air-
port Auth., 953 F.2d 1299, 1303-07 (11th Cir. 1992). Should such an
unusual posture as supposed here ever arise in the future, it would
thus be meet for the district court to advise the parties that they may
12
wish to make an England-type reservation of their right to return to
federal court, if need be, when they first appear in state court.
In our prior decisions in this litigation we never reached the merits
of IPC's takings claim and thus never considered the preliminary
question of whether that claim was ripe under Williamson County.
Although we do not believe that IPC sought zealously to seek just
compensation in the state court system, it appears now that its state
remedies for just compensation have been exhausted, as the district
court determined. As noted above, despite IPC's failure to follow the
state circuit court's order to brief it on its rights of action for damages,
the state circuit court did, in fact, consider--and reject--either
expressly or implicitly each of IPC's possible rights of action for
damages, and the Virginia Supreme Court refused to hear appeal on
IPC's damage claim. We therefore see no clear basis under
Williamson County to determine that IPC's takings claim is other than
finally ripe for adjudication in a federal forum. 3
Furthermore, ultimately, and unfortunately, we find we must agree
with the district court that continued abstention at this point would be
inappropriate. See Front Royal VII, 922 F. Supp. at 1138. Although
IPC did attempt to litigate its federal claims in state court, which, had
it succeeded at its attempt, would have barred its return to federal
court under the principles of res judicata, the state circuit court
expressly refused to entertain IPC's federal claims as a matter of comity.4
_________________________________________________________________
3 Absent is a similar concern with whether IPC's Fourteenth Amend-
ment due process and equal protection claims are ripe. State remedies
need not be exhausted in order to pursue a § 1983 action claiming a vio-
lation of these federal rights. See Patsy v. Board of Regents, 457 U.S.
496 (1982).
4 We note that IPC failed to make an express England-type reservation
of its right to return to federal court. However, although IPC did, then,
present its federal claims to the state court for disposition, those claims
were not "fully litigated," as England requires, see England, 375 U.S. at
421-22, since the state circuit court refused to address them. In a case
with a similarly odd procedural posture, the Third Circuit allowed the
plaintiff to return to federal court following a Pullman-type abstention,
which the court determined should actually have been abstention through
Younger v. Harris, 401 U.S. 37 (1971). See Ivy Club v. Edwards, 943
13
See Front Royal and Warren County Indus. Park Corp. v. Town of
Front Royal, No. 92-121, slip op. at 3-4 (Warren County, Va., Cir. Ct.
June 30, 1993) (letter ruling). This case has already passed through
procedural purgatory and wended its way to procedural hell. Because
we believe it would be fruitless and a waste of further judicial
resources at this point to send IPC back again to state court to try its
hand at a revived Annexation Court pursuant to Virginia Code § 15.1-
1047.2, which is the only avenue open now since the other state law
remedies have been foreclosed by the law of the case, an effective
dismissal-via-abstention now would deprive IPC of its right to a fed-
eral forum. We take seriously our strict duty to exercise the jurisdic-
tion that has been conferred upon us. See Quackenbush, 135 L. Ed.
2d at 12 (acknowledging that "federal courts have a strict duty to
exercise the jurisdiction conferred upon them by Congress"); see also
Colorado River Water Conservation Dist. v. United States, 424 U.S.
800, 821 (1976) (stating that "federal courts have a virtually unflag-
ging obligation . . . to exercise the jurisdiction given them"); Willcox
v. Consolidated Gas Co., 212 U.S. 19, 40 (1909) ("When a Federal
court is properly appealed to in a case over which it has by law juris-
diction, it is its duty to take such jurisdiction."). We emphatically
state, however, that we do not condone IPC's failure to follow our
mandate and that we exercise our jurisdiction in this instance only
because the state circuit court expressly refused to reach the federal
claims out of deference for the principles of comity and federalism.
Cf. England, 375 U.S. at 421-22 (holding that a"litigant is in no event
to be denied his return to the District Court unless it clearly appears
that he voluntarily . . . fully litigated his federal claims in the state
courts" (emphasis added)).
_________________________________________________________________
F.2d 270 (3d Cir. 1991), cert. denied sub nom. Del Tufo v. Ivy Club, 503
U.S. 914 (1992). There the plaintiff had initially litigated its federal con-
stitutional claims in state administrative proceedings, but after the district
court abstained and upon return to state court, an express England reser-
vation was made. In weighing the equities, the court was in part per-
suaded that, although the state courts had not explicitly acknowledged
the plaintiff's England reservation, the state courts had not decided the
federal constitutional claims. See id. at 281. We can see no warrant for
finding a voluntary waiver of England-type rights where, although a res-
ervation was not expressly made, the state court expressly refuses to
reach the federal claims presented to it out of concerns for comity.
14
There appear to be no cases in which a Court of Appeals has
denied a litigant the right to return to federal court where federal
claims remained after a Burford abstention, nor any in which the liti-
gant was denied the federal forum following any type of abstention
where the litigant only half-heartedly complied with the mandate to
pursue state law remedies. In other words, there is no doctrine of
waiver immanent in the retention of federal jurisdiction, and we
decline, even on these facts, to create one here. Moreover, our previ-
ous concerns that federal court involvement in Virginia's land-use
regulation scheme could disrupt the development of coherent state
policy in this arena have been rendered moot by the various interven-
ing events and court dispositions. Thus, despite IPC's lack of good
faith in fully advocating its claims in state court and as much as we
may like to dismiss its case as a result, we determine that the district
court below properly reached the merits, and so now must we.
III.
We review de novo the district court's order granting summary
judgment to IPC. See E.J. Sebastian Assocs. v. Resolution Trust
Corp., 43 F.3d 106, 108 (4th Cir. 1994). We apply the same standards
as the district court, i.e. summary judgment is appropriate where there
is no genuine dispute as to a material fact. See Miller v. FDIC, 906
F.2d 972, 973-74 (4th Cir. 1990); Fed. R. Civ. P. 56(c).
We review the district court's findings of fact for clear error. See
Waters v. Gaston County, N.C., 57 F.3d 422, 425 (4th Cir. 1995);
Fed. R. Civ. P. 52(a). "A finding is clearly erroneous when, although
there is evidence to support it, on the entire evidence the reviewing
court is left with the definite and firm conviction that a mistake has
been committed." Faulconer v. Commissioner , 748 F.2d 890, 895 (4th
Cir. 1984).
IV.
The district court granted IPC's motion for summary judgment on
its takings, substantive due process, and equal protection claims.
Although the district court's legal analysis was thorough and gener-
ally sound, we find in our de novo review, in each case, either that
15
the district court's analysis stopped short or that we cannot agree with
the lower court's application of the law to the facts here.
Given our disposition of this case, we do not address the issue of
the qualified immunity of the individual government officials.
Although we have cited approvingly the proposition advanced by the
lower court--that an official acting ultra vires may not claim quali-
fied immunity, see In re Allen, 106 F.3d 582, 590 (4th Cir. 1997) (cit-
ing, inter alia, Front Royal VII, 922 F. Supp. at 1142)--we will not
pass on whether in the case sub judice that proposition was properly
applied. In any event, that issue has been rendered moot by the litiga-
tion history of this case. Although the individual officials still appear
in the caption as defendants-appellants, only the Town's liability
remains at stake. When IPC returned to state court, it sued only the
Town, not the individual officials. The state circuit court concluded
as a matter of law that the individuals were not parties to the suit,
which is now the law of the case. See Front Royal and Warren
County Indus. Park Corp. v. Town of Front Royal, No. 92-121, slip
op. at 11-12 (Warren County, Va., Cir. Ct. Oct. 23, 1992). IPC is thus
precluded from seeking to attach liability to these individuals now.
Although IPC's first amended complaint was ambiguous as to the
nature of its due process claim, the district court interpreted the com-
plaint as seeking relief under a substantive due process theory. We
agree and thus we will not consider IPC's claim on the basis of a pro-
cedural due process theory.
We turn now to address each of IPC's claims serially.
A.
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992),
the Supreme Court noted that there exist at least two distinct catego-
ries of governmental regulatory action that may result in a taking for
which just compensation is due under the Fifth Amendment. First,
regulations that compel a physical invasion of an owner's property are
takings, no matter how slight the invasion or how weighty the public
interest advanced to support them. Id. at 1015. See, e.g., Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (holding
that cable facilities occupying only 1.5 cubic feet constituted a tak-
16
ing). Second, regulations that deny "all economically beneficial or
productive use of land" are compensable takings. Lucas, 505 U.S. at
1015. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825
(1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.
470 (1987). Despite these categorizations, much remains uncertain
about takings jurisprudence, for the Court admitted that there is no
"set formula" for determining when a regulation goes "too far" and
becomes a compensable taking. Lucas, 505 U.S. at 1015. Although
the categories themselves provide guidance, the difficulty is determin-
ing on an ad hoc basis whether any particular regulation fits neatly,
or otherwise, into one of these two categories.
Surveying this jurisprudence from a different perspective, it is clear
that a taking exists where the owner of real property is forced to "sac-
rifice all economically beneficial uses . . ., that is, to leave his prop-
erty economically idle." Lucas, 505 U.S. at 1019 (emphasis in
original). It is also clear that temporary, but total, regulatory takings
are compensable. See First English Evangelical Lutheran Church v.
County of Los Angeles, 482 U.S. 304, 321 (1987). It is unanswered
and much less clear, although arguable, that a partial regulatory taking
may be compensable. However, under this jurisprudence we can see
absolutely no warrant for the proposition that where the government
does not affirmatively prohibit the realization of investment-backed
expectations, but merely refuses to enhance the value of real property,
a compensable taking has occurred. We must seriously question the
nature of IPC's claimed property interest that has allegedly been
taken. This property interest is nothing but an inchoate interest in the
conferral of a benefit to enhance market value. To find it to be a com-
pensable taking would open an incredible Pandora's Box. Even were
such an inchoate interest a stick in the bundle of property rights, it is
clearly not one of the classical property rights of possession, use, and
disposition. See Kaiser Aetna v. United States , 444 U.S. 164, 176
(1979) (speaking in terms of the "sticks in the bundle of rights that
are commonly characterized as property"); Loretto, 458 U.S. at 435
(describing property rights as "the rights to possess, use and dispose
of [a thing]" (internal quotation marks and citation omitted)).
The instant case is not like Lucas, where new zoning regulations
totally prevented the owner from building any habitable structure on
the beachfront lots, thereby denying his investment-backed expecta-
17
tions. The district court's argument that alternative uses of the prop-
erty, such as a residential subdivision, were "neither economically
realistic nor realistically available," Front Royal VII, 922 F. Supp. at
1149, is simply not probative.5 What IPC and the district court fail to
recognize is that the government did not do anything to deny IPC the
right to use its property for an industrial park. The Town had already
installed a pump on lot 14 and certain interceptor lines. All that
remained to do was to connect collector lines to thirteen of the sixteen
lots. Absolutely no government regulation prevented IPC from install-
ing those lines itself. In fact, many developers do install their own
sewer lines. Admittedly, the Town was under an Annexation Court
order to install those lines, but nothing prevented IPC from doing so
and then suing the Town for recovery of those costs.
In any event, it is painfully obvious that the Town's failure to
install the sewer lines did not deprive IPC's land of all economic
value or even close to that. The district court determined that IPC's
basis in the property was $407,000 (comprised of the $107,000 pur-
chase price plus the "approximately $300,000" spent in preparing the
land for use as an industrial park). See Front Royal VII, 922 F. Supp.
at 1134-35. The fair market value of IPC's land without sewer service
was $405,000. See id. at 1152. The math is simple. The outright dimi-
nution in value is less than one half of one percent. Even if the dimi-
nution be calculated from the fair market value of the land with the
sewer service provided, which the district court determined to be
$810,000, see id., the reduction is still only 50 percent. Not all regula-
tory deprivations amount to regulatory takings, and a regulatory
deprivation that causes land to have "less value" does not necessarily
make it "valueless."
Although not central to our determination, two additional aspects
touched upon in Lucas support our decision. In discussing the "prop-
erty interest" against which the loss of value is to be measured, the
_________________________________________________________________
5 Moreover, the district court ignores the fact, as several Justices in
Lucas noted, that even where the only residual economic uses of land are
recreational, such as camping or picnicking, economic value still
remains. See Lucas, 505 U.S. at 1044 (Blackmun, J., dissenting); id. at
1065 n.3 (Stevens, J., dissenting). Cf. id. at 1026 n.13 (citing cases where
other uses remained).
18
Court noted the unsettled distinction between a regulatory deprivation
of all economically beneficial use of the burdened portion of a tract
and a deprivation that results in the mere diminution in value of the
tract as a whole. Lucas, 505 U.S. at 1016 n.7. The Court suggested,
but did not decide, that the difficulties inhering in this distinction may
be resolved by "how the owner's reasonable expectations have been
shaped by the State's law of property--i.e., whether and to what
degree the State's law has accorded legal recognition and protection
to the particular interest in land with respect to which the takings
claimant alleges a diminution in (or elimination of) value." Id. In this
particular case, IPC had no reasonable expectation that Virginia's
property law would recognize, let alone protect, a property interest in
having sewer service provided by government. As the state circuit
court held under Virginia law, and as IPC even argued before it,
because there is "no constitutional right to sewer service," the Town's
"failure to confer a benefit on the property which [IPC] alleges would
substantially enhance the value of its property" cannot be a taking.
Front Royal and Warren County Indus. Park Corp. v. Town of Front
Royal, No. 92-121, slip op. at 2 (Warren County, Va., Cir. Ct. June
30, 1993); see also City of Virginia Beach v. Virginia Land Inv. Ass'n
No. 1, 389 S.E.2d 312, 314 (Va. 1990). IPC's property interest thus
falls on the side of the distinction, noted above, of those regulatory
deprivations that result in the mere diminution in value of the tract as
a whole and for which compensation is not due.
The Lucas Court also suggested that government could not sustain
a confiscatory regulation that denies all economically beneficial use,
without just compensation, unless the limitations effected by the regu-
lation were already inherent in the title itself. Lucas, 505 U.S. at 1027,
1029. In other words, an owner cannot be prohibited a use, without
compensation, where her title did not already contain an "implied lim-
itation" on that use. Analogizing to the instant case, when IPC pur-
chased its land in 1973 and 1974 and acquired its title, before
annexation by the Town, it had no legitimate expectation that that
land came with the public provision of sewer service. Instead, inher-
ent in that title was the implied limitation that the owner would have
to provide for its own water and sanitary waste disposal. This same
factual basis also supports the conclusion that IPC did not suffer the
defeat of its investment-backed expectations. When IPC purchased
the land in 1973 and 1974, that investment could not have been
19
backed by the expectation that its land would be provided with public
sewer service.
It cannot be gainsaid that the Town's and its officials' behavior in
this matter has been less than honorable. Not only did they fail to pro-
vide the mandated sewer service until nearly ten years after the
Annexation Court-imposed deadline, but they affirmatively developed
their own industrial park across the road from IPC's property and pro-
vided it with sewer service. As unfortunate as the appellants' behavior
has been, however, it simply does not constitute a taking under fed-
eral constitutional law. This is precisely why, under the circumstances
of this case, we left it to the state court system to mete out the appro-
priate remedy for appellants' long-standing refusal to supply the
sewer lines. Despite the character of the governmental action in this
instance, the economic impact of the deprivation of the sewer service
has been relatively minimal, and certainly very far from total. More-
over, that deprivation has not affirmatively interfered with IPC's dis-
tinct investment-backed expectations. See Connolly v. Pension Benefit
Guar. Corp., 475 U.S. 211, 224-25 (1986) (identifying factors to be
assessed in determining, ad hoc, whether a regulation goes "too far"
and becomes a compensable taking). IPC's original investment could
not have contemplated the public provision of sewer service, and it
could have fulfilled its later expectations by providing its own sewer
lines. Because IPC's property interest is at best an inchoate interest
in the conferral of a benefit to enhance market value, and not like one
of the traditional sticks in the bundle of property rights, we will not
open the lid to Pandora's Box into a virtual terra incognito where we
cannot stand on something more like terra firma .
B.
The Town claims that the district court granted summary judgment
on a substantive due process claim essentially sua sponte. However,
IPC's first amended complaint does state that it has been denied its
property without due process of law in violation of the Fourteenth
Amendment. The district court interpreted this as a substantive due
process claim, and we cannot see how the Town has been prejudiced
by the lower court addressing it as such since the complaint fairly puts
the Town on notice.
20
As we have noted, however, substantive due process is a substan-
tially narrower concept than procedural due process, for it serves as
"an absolute check on certain governmental actions notwithstanding
the fairness of the procedures" used to implement those actions. Love
v. Pepersack, 47 F.3d 120, 122 (4th Cir.) (internal quotation marks
and citation omitted) (emphasis added), cert. denied, 116 S. Ct. 64
(1995). We have determined that this absolute check is warranted
only where no process could cure the deficiencies in the governmen-
tal action. See Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,
827 (4th Cir. 1995). In other words, governmental action offends sub-
stantive due process only where the resulting deprivation of life, lib-
erty, or property is so unjust that no amount of fair procedure can
rectify it. See Love, 47 F.3d at 123. As we stated in Rucker v. Harford
County, Md., 946 F.2d 278, 281 (4th Cir. 1991), cert. denied, 502
U.S. 1097 (1992):
[T]he residual protections of "substantive due process" in
this (or any) context run only to state action so arbitrary or
irrational, so unjustified by any circumstance or governmen-
tal interest, as to be literally incapable of avoidance by any
pre-deprivation procedural protections or of adequate rectifi-
cation by any post-deprivation remedies.
In Sylvia Development, we broke down a substantive due process
claim into three elements that a claimant must prove under this nar-
row conception when the property prong of the Fourteenth Amend-
ment is implicated: (1) the claimant must establish possession of a
property interest, (2) state action must deprive the claimant of the
property interest, and (3) the state's action must fall "so far beyond
the outer limits of legitimate governmental action that no process
could cure the deficiency." Sylvia Dev., 48 F.3d at 827 (emphasis in
original). In Gardner v. City of Baltimore Mayor and City Council,
969 F.2d 63, 68 (4th Cir. 1992), we permitted the Supreme Court's
standard of "claim of entitlement" under Board of Regents v. Roth,
408 U.S. 564, 577 (1972), to satisfy the property interest element in
a substantive due process challenge.
In the instant case, the district court determined that under our
holding in Gardner IPC possessed a property interest because it fairly
had a claim of entitlement to the sewer lines since the Town lacked
21
all discretion to totally deny them. See Front Royal VII, 922 F. Supp.
at 1149-51. It is certainly plain that the Virginia Supreme Court deter-
mined that the 1978 Annexation Court's decree required the Town "to
perform a prospective non-discretionary act." Front Royal VI, 449
S.E.2d at 798.
However it may be that the Town lacked discretion, that IPC had
a claim of entitlement, and that the Town deprived IPC of that entitle-
ment, it is equally plain that the Virginia Supreme Court remedied
that deprivation by affirming the trial court's issuance of a writ of
mandamus. See id. Pursuant to that writ, the sewer lines were con-
structed. Thus even if IPC has satisfied the first two elements of its
substantive due process claim, it cannot satisfy the third. Because the
state courts ordered the Town to construct the sewer lines, the state
courts were capable of rectifying, and did rectify, the Town's derelic-
tion.
As in Sylvia Development, our analysis in no manner condones the
Town's actions in circumventing its legal obligations for nearly ten
years. Cf. Sylvia Dev., 48 F.3d at 829 ("Our analysis should not be
interpreted as condoning the actions of public officials who circum-
vent legally established criteria in their decisionmaking."). But gov-
ernmental actions that are violative of state law are properly
challenged in state courts which exist, in part, to protect citizens from
abuses of state law. See id.; Love, 47 F.3d at 123. Whether the Town
illegally refused to comply with the Annexation Court's decree is not
determinative of whether federal substantive due process has been
violated. As we stated in Love:
We would trivialize the Due Process Clause to invoke it
every time the citizen defeats the state in state court. The
Clause is violated only where the state courts can do nothing
to rectify the injury that the state has already arbitrarily
inflicted.
Id. Had IPC not rushed into federal court in the first place but instead
gone to state court, as it only did after we ordered it to following our
abstention decision in Front Royal V, no doubt its sewer lines would
have been constructed much sooner. Federal court is not the auto-
matic cure for whatever ails one.
22
C.
The Fourteenth Amendment's Equal Protection Clause provides
that "[n]o State shall . . . deny to any person within its jurisdiction the
equal protection of the laws." U.S. Const. amend. XIV, § 1. As we
have recently stated, the Clause "limits all state action, prohibiting
any state from denying a person equal protection through the enact-
ment, administration, or enforcement of its laws and regulations."
Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.
1995) (emphasis in original).
IPC's equal protection claim is not a challenge to any Town ordi-
nance or regulation or even to any state law. Indeed, IPC's claim spe-
cifically rests on the validity of the 1978 Annexation Court's decree.
Instead, IPC is claiming a violation of federal constitutional law
through the Town's refusal to properly administer or comply with that
state Annexation Court order.
The Equal Protection Clause forbids both laws that expressly dis-
criminate as to classifications that bear no appropriate relationship
between the legislative purpose and the classification adopted to
achieve that purpose and laws that are facially neutral but that are
administered or enforced discriminatorily with regard to such classifi-
cations.
In ruling on the motion for summary judgment with respect to
IPC's equal protection claim, the district court noted that the Town
officials alleged in their affidavits "that they based their decision not
to extend the sewer lines on the sort of garden-variety economic fac-
tors which courts historically conclude merit judicial deference."
Front Royal & Warren County Indus. Park Corp. v. Town of Front
Royal, Va., 708 F. Supp. 1477, 1486 (W.D. Va. 1989). The district
court ruled, however, that this reason was legally insufficient inas-
much as the extension of sewer service had been ordered by the
annexation court. See id. Discussing IPC's additional claim "that there
was a conspiracy among the defendants to provide sewerage to certain
parcels for personal benefit and to deny it to plaintiffs," the district
court evinced its correct understanding of its authority under Rule
56(c) in writing:
23
While there is some evidence that this may have been so, the
record does not provide the basis for a finding, under Rule
56, that there was invidious discrimination by defendants
against plaintiffs because there are disputes regarding issues
of material fact which relate to defendants' motivation in
providing sewers and the effect of providing the sewer lines
to some parcels and not to others. However, it is not neces-
sary to find uncontroverted evidence of a conspiracy by
defendants to reduce the value of plaintiffs' parcels or to
impermissibly deny to plaintiffs sewer service, for defen-
dants themselves have not been able to identify any permis-
sible state interest to which defendants' decision could bear
a rational relationship nor could there feasibly be any such
interest, given the strictures placed upon defendants by the
annexation orders.
Id. at 1487. This statement is not a "finding" that there was no invidi-
ous discrimination. Instead, it is a legal conclusion that although evi-
dence concerning the existence of invidious discrimination was
conflicting, foreclosing judgment under Rule 56(c), judgment never-
theless was proper for IPC because, as a matter of law, there was no
legitimate state interest in denying sewer service. This legal conclu-
sion by the district court, however, is unsound.
Hence, the district court erred in granting summary judgment to
IPC. It appears to be undisputed that, whether one accepts IPC's
claim that the decision not to provide sewer service to its property
was made to advance the interests of nearby property owned by the
Town or the Town officials' contention that the decision was strictly
an economic one, the different treatment of IPC's property was inten-
tional. See, e.g., Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d
810, 819 (4th Cir. 1995) (explaining that in order"[t]o prove that a
statute has been administered or enforced discriminatorily, more must
be shown than the fact that a benefit was denied to one person while
conferred on another" and that "[a] violation is established only if the
plaintiff can prove that the state intended to discriminate"). And,
because the governmental action did not burden a fundamental right
or employ a suspect classification, the pertinent question for deter-
mining whether the governmental action violated the Equal Protection
Clause is whether the Town officials reasonably could have believed
24
that the action was rationally related to a legitimate governmental
interest. See, e.g., Plyler v. Moore, 100 F.3d 365, 373 (4th Cir. 1996),
cert. denied, 117 S. Ct. 2460 (1997); Chambers Med. Techs. of S.C.,
Inc. v. Bryant, 52 F.3d 1252, 1262-63 (4th Cir. 1995); Smith Setzer
& Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d
1311, 1320 (4th Cir. 1994). Regardless of the actual motivation for
the decision to provide sewer service to adjacent property but not to
IPC's property, the Town officials reasonably could have believed
that the decision was rationally related to a legitimate governmental
interest. Therefore, the district court erred in granting summary judg-
ment to IPC.
V.
For the foregoing reasons, we conclude that IPC's takings, substan-
tive due process, and equal protection claims pursuant to the Fifth and
Fourteenth Amendments cannot be sustained. We therefore reverse
the grant of summary judgment to IPC on each of these claims and
direct the district court to dismiss them. Our disposition necessarily
reverses the award to IPC of compensatory damages and attorney's
fees. We remand this matter to the district court for whatever proceed-
ings may remain in this now too-lengthy litigation.
REVERSED AND REMANDED
WILKINS, Circuit Judge, concurring in judgment:
I am in full agreement with the result reached by the majority--
reversal of the decision of the district court holding that the actions
of the Town of Front Royal, Virginia and several of its individual
officials effected an unconstitutional taking of property belonging to
the Front Royal and Warren County Industrial Park Corporation (IPC)
and violated the due process and equal protection guarantees of the
Fourteenth Amendment. I write separately to highlight the dictum in
the majority opinion that has resulted from the unnecessary breadth
of its discussion and its consideration of a number of matters that I
believe are irrelevant to the decision.
Section II of the majority opinion explains that we held in a prior
appeal in this litigation that abstention pursuant to Burford v. Sun Oil
25
Co., 319 U.S. 315 (1943), was appropriate and directed the district
court to retain jurisdiction "pending the outcome of the state proceed-
ings because they may not fully dispose of all of the federal claims."
Front Royal & Warren County Indus. Park Corp. v. Town of Front
Royal, Va., 945 F.2d 760, 765 (4th Cir. 1991). The majority also notes
that IPC subsequently obtained a ruling from the Supreme Court of
Virginia that the state trial court properly granted mandamus relief
because IPC possessed "a clear right to the" construction of sewer
lines under the 1978 annexation court order, the Town had "a legal
duty to perform the act" that IPC sought to compel, and "there [was]
no other available specific and adequate remedy." Town of Front
Royal v. Front Royal & Warren County Indus. Park Corp., 449
S.E.2d 794, 796-98 (Va. 1994) (internal quotation marks omitted).
The majority eventually reasons that in view of our prior direction
that the district court was to retain jurisdiction to consider the federal
issues if the state court did not resolve them, the determination of the
Supreme Court of Virginia that no state remedy other than mandamus
was available to IPC, and the ruling of the state court that prudential
considerations counseled against a decision on the federal issues, the
district court correctly held that it was appropriate to proceed to
resolve the federal questions. The remainder of the discussion in Sec-
tion II is unnecessary to the decision and, hence, is dicta.
Next, as the majority correctly notes in Section IV, our conclusion
that none of IPC's constitutional rights were violated obviates the
need to address the question of whether the individual defendants are
entitled to qualified immunity. See DiMeglio v. Haines, 45 F.3d 790,
799 (4th Cir. 1995) (noting that a court may dispose of a case on the
ground that no constitutional violation occurred without addressing
qualified immunity). The remainder of the paragraph discussing qual-
ified immunity is dicta.
Finally, the majority intimates that the "inchoate interest in the con-
ferral of a benefit to enhance market value" may not give rise to an
unconstitutional taking. Slip op. at 17. Obviously, this reasoning is
unnecessary to the decision since the majority concludes that no
unconstitutional taking resulted because the "failure to install the
sewer lines did not deprive IPC's land of all economic value or even
close to that." Slip op. at 18 (emphasis omitted). Again, the balance
of the Fifth Amendment discussion must be understood to be dicta.
26