Baskin v. Bath Tp. Bd. of Zoning Appeals
| Decision Date | 02 February 1994 |
| Docket Number | No. 92-4375,92-4375 |
| Citation | 15 F.3d 569 |
| Parties | P Bruce BASKIN, Plaintiff-Appellant, v. BATH TOWNSHIP BOARD OF ZONING APPEALS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert M. Gippin (argued and briefed), Buckingham, Doolittle & Burroughs, Akron, OH, for plaintiff-appellant.
Joseph M. Holden (briefed), John W. Solomon, and William E. Baisden (argued), Brouse & McDowell, Akron, OH, for defendants-appellees.
Before: MARTIN and RYAN, Circuit Judges; and EDGAR, District Judge. *
Plaintiff Bruce Baskin appeals the district court's sua sponte decision to dismiss this case on Colorado River abstention grounds. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The sole issue is whether that dismissal was proper. We conclude that it was not and remand the case to the district court.
Baskin planned to construct five amateur radio towers and antennae on his residential real estate in Bath Township, Ohio. Because the towers would exceed the applicable local height restrictions, he was required to seek the approval of the Board of Zoning Appeals. After a series of hearings, the Board voted to permit the construction of the towers, provided certain conditions were met.
On July 13, 1992, the homeowners who had opposed the variance filed suit in the Summit County Court of Common Pleas arguing that, for a number of reasons, the variance should not have been permitted. Baskin was not a party to the case when the suit was filed, although he moved to intervene on July 15, 1992. That same day, Baskin filed an action in federal district court, alleging that the conditions imposed by the Board failed to reasonably accommodate his use of his FCC amateur radio operator's license and violated his federal constitutional rights to equal protection and substantive due process. The complaint also raised two state law issues.
The Summit County Court granted Baskin's motion to intervene in the first suit, whereupon he removed the action to federal court and attempted to consolidate it with his previously pending federal action. The plaintiffs in the newly removed state court action moved to remand to the state court, and the defendants in the federal action filed a motion for partial summary judgment.
On November 20, 1992, the district court entered a memorandum opinion and order which granted the motion to remand, denied as moot the summary judgment motion, and sua sponte dismissed the federal court action on Colorado River abstention grounds. Baskin appealed the abstention portion of this order. The day after he filed his notice of appeal, Baskin filed a state court action which essentially duplicated the federal action dismissed by the district court.
In arguing that abstention was improper, Baskin first contends that no parallel state court action existed at the time the federal court entered its abstention order. In support of this argument, Baskin notes that the state court action in which he was an intervenor and which the district court thought was a parallel action was brought by home-owners who sought to overturn the variance granted to Baskin and prevent the construction of any radio towers and antennae which exceeded the local zoning restrictions. In short, the homeowners thought the variance went too far. Intervenor Baskin was defending the propriety of the variance in the state court. In the federal court action, Baskin claimed that the variance did not go far enough, and consequently, under federal law, did not "reasonably accommodate" his amateur radio license.
In Traughber v. Beauchane, 760 F.2d 673, 675-76 (6th Cir.1985), this court articulated the proper standard for reviewing abstention decisions by district courts. In that case, we held:
Because theories of state and federal law, and expressions of federalism and comity, are so interrelated in the decision to abstain such dispositions are elevated to a level of importance dictating de novo appellate review.
Id. at 676. Although the merits of Traughber concerned Younger 1 abstention, rather than Colorado River abstention, the Traughber reasoning as to the standard of review has been applied to Colorado River abstention. See Heitmanis v. Austin, 899 F.2d 521, 527 (6th Cir.1990).
The Supreme Court first articulated the doctrine now known as Colorado River abstention in the case of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). This doctrine allows federal courts to abstain from deciding a federal court action in deference to a pending state court action. Such abstention, however, is only appropriate in extraordinary circumstances. Id. at 817, 96 S.Ct. at 1246. The Court clarified the doctrine in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). There, the Court reviewed the factors to be considered in determining whether abstention under Colorado River is appropriate. The Court listed five primary factors:
(1) whether federal or state law provides the basis for decision of the case;
(2) whether either court has assumed jurisdiction over any res or property;
(3) whether the federal forum is less convenient to the parties;
(4) avoidance of piecemeal litigation; and
(5) the order in which jurisdiction was obtained.
Id., 460 U.S. at 15-16, 103 S.Ct. at 936-37. A court may also consider the progress that has been made in the state and federal actions. Id. These factors, however, do not comprise a mechanical checklist. Rather, they require "a careful balancing of the important factors as they apply in a given case, with the balance heavily weighed in favor of the exercise of jurisdiction." Id. at 16, 103 S.Ct. at 937.
This court's first interpretation of the doctrine after the Moses H. Cone decision came in Crawley v. Hamilton County Commissioners, 744 F.2d 28 (6th Cir.1984). In Crawley, the court concluded that before a court reaches the factors articulated in Moses H. Cone, it must first determine whether a parallel state-court action exists, otherwise the district court would have nothing in favor of which to abstain. Id. at 31, 103 S.Ct. at 944. The court in Crawley framed this issue as follows:
A necessary requirement for application of this Colorado River doctrine, however, is the presence of a parallel, state proceeding. In our case, there is no such proceeding....
* While it may be true, as the [defendant] maintains, that [the state court proceeding] could be modified so as to make it identical to the current federal claim, that is not the issue here. The issue is whether [the state court proceeding], as it currently exists, is a parallel, state-court proceeding. Because it is not, we need not undertake the five-factor analysis called for in Moses H. Cone Memorial Hospital.
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