21 F.3d 1319 (4th Cir. 1994), 91-1107, Pomponio v. Fauquier County Bd. of Sup'rs

Docket Nº:91-1107.
Citation:21 F.3d 1319
Party Name:Arthur M. POMPONIO, Plaintiff-Appellant, v. FAUQUIER COUNTY BOARD OF SUPERVISORS; Planning Commission of Fauquier County, Virginia; Fauquier County, Virginia; Richard McNear, Planning Director of Fauquier County, in his official capacity, Defendants-Appellees.
Case Date:April 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1319

21 F.3d 1319 (4th Cir. 1994)

Arthur M. POMPONIO, Plaintiff-Appellant,



of Fauquier County, Virginia; Fauquier County, Virginia;

Richard McNear, Planning Director of Fauquier County, in his

official capacity, Defendants-Appellees.

No. 91-1107.

United States Court of Appeals, Fourth Circuit

April 15, 1994

Argued Dec. 1, 1992.

Page 1320

ARGUED: John Francis Cahill, Hazel & Thomas, Falls Church, VA, for plaintiff. Deborah Brand Baum, Shaw, Pittman, Potts & Trowbridge, Washington, DC, for appellees. ON BRIEF: John Holland Foote, Thomas W. Smith, III, Hazel & Thomas, Falls Church, VA, for defendants. Patricia L. Hanower, Shaw, Pittman, Potts & Trowbridge, Washington, DC; Edward J. Finnegan, Shaw, Pittman, Potts & Trowbridge, Leesburg, VA; Paul S. McCulla, Office of the County Atty., Warrenton, VA; Robert S. Corish, Slenker, Brandt, Jennings & Johnston, Merrifield, VA, for appellees.


Affirmed by published opinion. Judge WIDENER wrote the opinion of the Court, in which Judges Donald RUSSELL, K.K. HALL, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, and WILLIAMS joined. Judge MURNAGHAN wrote a dissenting opinion, in which Chief Judge ERVIN and Judge PHILLIPS joined.


WIDENER, Circuit Judge:

The sole issue before us is whether the district court properly applied the abstention doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), in dismissing this case without prejudice. We hold that Burford abstention was appropriate and affirm the district court's dismissal.


The plaintiff-appellant, Arthur M. Pomponio, brought this Section 1983 action against Fauquier County, the Board of Supervisors of Fauquier County, the Planning Commission, and Richard McNear, in his official capacity as Fauquier County Planning Director, in the United States District Court for the Eastern District of Virginia. The complaint alleged arbitrary behavior, false statements, abuse of authority, and misconduct by local officials during consideration of a preliminary subdivision plan submitted by Pomponio. Because of the misconduct, Pomponio alleged denials of procedural due process, substantive due process, and equal protection. The district court sua sponte entered an order abstaining from jurisdiction based on the Burford doctrine and dismissed Pomponio's claim without prejudice. Pomponio appealed.

This dispute stems from a difference of opinion about the correct interpretation of the applicable Fauquier County zoning and subdivision ordinances. The record reveals that Pomponio is a real estate developer. In March of 1989, he contracted to purchase approximately 1,250 acres of property known as Clover Hill, which was located in the RA (agriculture) 1 and

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RC (conservation) 2 zoning districts. The development of a minor residential development 3 was permitted under the applicable zoning ordinance, as long as certain maximum density and open space requirements were met. 4 Clover Hill had been previously subdivided by recorded plat into 123 building lots and one common lot. 5 Pomponio sought to take advantage of the zoning ordinance, which allowed further subdivision of a lot ten acres or greater in size. 6 He took the position that there were 96 lots in excess of ten acres in size on the original plat, which entitled him to aggregate the dwelling units allowed for each lot to produce an additional 96 dwelling units, then he added two tracts in excess of 20 acres each for six additional dwelling units, plus one dwelling unit each for 27 tracts less than ten acres. 7 Instead of subdividing each lot, however, Pomponio took the aggregate number of dwelling units to which he claimed he was entitled--222 8--and redistributed them on the entire 1250-acre plat in a cluster arrangement. 212 of the dwelling units were placed on 350 acres with lot sizes between one and three acres, which is an average density of 1.65 acres per dwelling unit. The remaining ten lots were from 25-50 acres in size and are described in Pomponio's application as non-common open space homesites. In addition, Pomponio included a golf course.

On June 21, 1989, Pomponio formally submitted a preliminary subdivision plan (the Plan) for review and approval by the Planning Commission of Fauquier County. In late June of 1989, James Green, the member of the Board of Supervisors from Clover Hill's magisterial district, commented negatively about Pomponio's proposed subdivision plan during an interview with the local newspaper. Pomponio has alleged that Green had not yet reviewed the Plan, but stated, "[I]f there is any way to cut it or slow it down, I'm all for it." Thereafter, defendant McNear conducted a review of the Plan and wrote a memorandum, dated July 14, 1989, to Mike Finchum, Planner. The McNear memorandum outlined several problems with the Plan. First, the proposed subdivision of the 10 + acre lots was invalid because the resulting lots ran afoul of sections 2-308, 3-400, and 7-

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300 9 of the zoning ordinance. 10 Second, the ordinance did not allow for the proposed cluster arrangement, which would have required a transfer of density from one lot to another. Finally, the golf course did not qualify under the ordinance as a use in non-common open space. Finchum communicated his concerns, and particularly the concern about the cluster arrangement, to Pomponio's business partner by letter dated July 20, 1989.

In the meantime, the Planning Commission's staff prepared a report on the Plan dated August 9, 1989. The staff concluded that 97 of the 98 10 + acre lots could not be subdivided under the zoning ordinance. Certain reductions to the size of the lots were applied in determining whether the lots were eligible for subdivision. 11 As a result, 97 of the lots could not be subdivided. According to Pomponio, the staff was erroneously instructed by defendant McNear to apply the reductions of section 2-308.2 to determine the permitted density of the Clover Hill property. Pomponio argues that the local ordinance did not provide for the reduction in the density of minor residential developments such as Pomponio's, but that the local officials wanted to curtail his plan.

Pomponio's complaint against defendant McNear and the reduction calculations attributes weight to the fact that McNear was involved in a proposed amendment of the ordinance to authorize the reduction of permitted density on preliminary plans for minor residential development at the same time that Pomponio's plan was being considered. The proffered evidence of this is a July 17, 1989 memorandum recommending several amendments to the ordinance. However, no amendment to section 2-308 was proposed, and, in fact, the memorandum states that in determining the permitted density for rural areas, "the existing sliding scale would constitute the permitted category." 12 Pomponio further alleges that at the August 9, 1989 Commission meeting, during consideration of Pomponio's plan, McNear informed the Commission that the proposed density of the Plan exceeded the maximum density permitted by law, which was, according to Pomponio, "false." Although Pomponio has used the adjective "false" both in his brief and in the complaint, as is at once apparent, the record supports no more than a difference of opinion in this garden variety zoning dispute.

Pomponio vehemently contends that McNear purposefully misconstrued the zoning ordinance. Whether the zoning ordinance was incorrectly construed is the central question in the case. Pomponio asserts that his interpretation is correct and further asserts that because McNear sent the Commission his July 17 memorandum and then met with the Commission to discuss amending the local ordinance two days prior to the Commission's consideration of the Plan, the Commission knew that McNear had made false and misleading legal statements about the Plan. The Commission nonetheless voted to disapprove the Plan on August 31, 1989. For their part, the defendants argue that Pomponio's plan never complied with the applicable ordinances and that there was no subterfuge or conspiracy here.

The record reveals that Pomponio fully argued his position on the ordinance to the Commission and provided extensive exhibits. The Commission gave three reasons for denying approval of Pomponio's plan: (1) the proposed layout of the Clover Hill development

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constituted a density transfer which the state enabling legislation does not permit; (2) the number of lots exceeds the maximum density permitted in the Fauquier County zoning ordinance; and (3) the proposed streets were shown to run across the land of others who had not consented to the streets.

Because Pomponio's dispute with the Commission hinged on the interpretation of the local ordinance, on September 5, 1989 Pomponio simultaneously appealed the Commission's decision to the Board of Supervisors, pursuant to Fauquier County Subdivision Ordinance Sec. 9-6, and to the Board of Zoning Appeals, for their determination of the correct interpretation of the local ordinance. 13 Pomponio asked the Board of Zoning Appeals to defer consideration of his appeal until the Board of Supervisors acted. Pomponio apparently reargued his interpretation of the ordinance to the Board of Supervisors, and he also apparently argued that even if the reductions of section 2-308 were applicable, they had not been routinely applied by the Commission in the past and that applying the reductions to him would be arbitrary and capricious. The Board of Supervisors, chaired by Green, who had previously commented...

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