Front Royal and Warren County Indus. Park Corp. v. Town of Front Royal, Va.

• Decision Date: 23 January 1998
• Docket Number: No. 96-1614,96-1614
• Citation: 135 F.3d 275
• Parties: 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 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.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 275

135 F.3d 275

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

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.

No. 96-1614.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 31, 1996.

Decided Jan. 23, 1998.

ARGUED: Glenn M. Hodge, Wharton, Aldhizer & Weaver, P.L.C., Harrisonburg, VA, for Appellants. Robert Clayton Fitzgerald, Hazel & Thomas, P.C., Falls Church, VA, for Appellee. ON BRIEF: Mark D. Obenshain, Wharton, Aldhizer & Weaver, P.L.C., Harrisonburg, VA, for Appellants. Myron C. Smith, Fairfax, VA, for Appellee.

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 opinion concurring in the judgment.

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, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The case initially arose from Plaintiff-Appellee Front Royal and Warren County Industrial Park Corporation's (IPC) 42 U.S.C. § 1983 action claiming an unconstitutional taking and violations of substantive due process and equal protection, predicated upon the appellants' 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 judgment 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, 112 S.Ct. 1477, 117 L.Ed.2d 620 (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 vindicate the due process rights afforded under the Virginia Constitution, Art. I, § 11 to those who have been unlawfully deprived of their property. Id. at 764-65.

IPC subsequently requested both the Town and the County of Warren 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 damages under state law. See Front Royal and Warren County Indus. Park Corp. v. Town of Front Royal, No. 92-121, slip op. at 14 (Warren County, Va., Cir. Ct. Apr. 14, 1993); Front Royal and Warren County Indus. Park Corp. v. Town of Front Royal, No. 92-121 (Warren 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.2d 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 judgment 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, following 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. Federal 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 abstention, 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.

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, perhaps the 1978 Annexation Court could be reconvened under the special 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 thereafter, on January 21, 1992, Judge Wetsel of the Circuit Court of Warren 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.

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, 205 Va. 259, 136 S.E.2d 817, 826 (1964). This view of the limited nature of the reconvened annexation court was reconfirmed ultimately by the Virginia Supreme Court in Front Royal VI, 449 S.E.2d at 797.

Notwithstanding this dissolution of the Annexation Court, however, IPC's failure to pursue a remedy there may be more fundamental 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 collateral 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...