Pomponio v. Fauquier County Board of Supervisors

MURNAGHAN, Circuit Judge,

dissenting:

The majority characterizes Pomponio’s .argument as one that “boils down to an assertion that his plan complied with the zoning laws, and [that] the local authorities wrongfully disapproved his plan by misapplying the laws and by abusing their authority in the decision making process.” The majority affirms the district court’s application of the Burford abstention doctrine on the theory that such an argument does not merit federal interference with the State’s or locality’s land use policies.

Had Pomponio appealed an unfavorable decision of the Board of Supervisors or the Board of Zoning Appeals directly to the federal district court asking the federal court to reverse the state Board’s decision, Burford abstention would be appropriate. Pomponio did not file such an appeal, however. He did not even commence a federal action until the loss of his contract to purchase the land at issue required him to nonsuit his state claims.

Pomponio has not sought an injunction. Pomponio has not requested relief that would directly affect the implementation of the state’s or the locality’s land use policies. Instead, Pomponio has brought a federal claim under § 1983 for an abuse of process in an attempt to recover damages for his losses. He has alleged specific instances of arbitrary behavior, false statements, abuse of authority, and misconduct by local zoning officials. These claims do not involve difficult questions of state law, nor do they involve a situation where the exercise of federal jurisdiction would disrupt a state’s efforts to establish a coherent policy on a matter of substantial import.

A ruling by the district court that one or more of the defendants had taken unwarranted or abusive actions in the course of reviewing and disapproving Pomponio’s plan would affect only the state’s manner of doing business, not the state’s substantive land use and zoning policies.* In other words, the resolution of this matter in the district court would not “leave the indelible print [of the federal courts] on local and state land use and zoning law.” The appropriate remedy for a § 1983 violation would be an award of damages, not an injunction requiring the state to take a prescribed action regarding the disputed subdivision plan. In fact, Pomponio has lost his opportunity to act on his proposed plan because his purchase contract expired during the pendency of the dispute with state officials.

The majority has carved out a group of cases for which Burford abstention would be inappropriate. These cases involve unusual circumstances previously recognized by this court including religious prejudice, federal statutory pre-emption, and First Amendment rights, which convert an ordinary zoning dispute into a case in which federal courts must exercise their jurisdiction. Because the district court dismissed his claim, Pomponio has not had the opportunity to prove the existence of unusual circumstances, such as an apparent conflict of interest in the case of defendant McNear or an abuse of process, that surround his case.

We agree that Burford abstention frequently is proper when land use and zoning issues are present, but we believe that Bur-ford abstention is inappropriate when a case involves “local land use issues only in a peripheral sense,” and when such issues “are not presented in the context of difficult interpretations of state law of peculiar concern.” Neufeld v. City of Baltimore, 964 F.2d 347, 351 (4th Cir.1992). We also emphasize that “abstention is the exception, not the rule, and can only be justified in exceptional cases.” Id. at 349. Accordingly, without expressing an opinion with regard to the merits of the substantive issues presented by Pomponio, we maintain that the district court’s order abstaining from jurisdiction and dismissing without prejudice Pomponio’s complaint

*1330should be vacated and remanded for further proceedings.

In any event, "[a]s the Supreme Court has emphasized, a federal court should not abstain under Burford just because resolution of a federal question may result in overturning state policy.” Neufeld v. City of Baltimore, 964 F.2d 347, 350 (4th Cir.1992).