Commercial Litigation and Arbitration

Burford Abstention Inappropriate for Local Ordinance — Burford’s Focus Is State, Not Local Policy — Circuit Split

From Saginaw Housing Comm’n v. Bannum, Inc., 576 F.3d 620 (6th Cir. 2009):

The question in this appeal is one of first impression in this circuit: whether a federal court should abstain from a decision involving the interpretation of a local land use ordinance. We find that it should not. Every case in which we have found Burford abstention appropriate has involved evidence that federal involvement would disrupt a coherent state policy. ***

This emphasis on state policy is in keeping with the Supreme Court's emphasis on the disruption of state regulatory processes. Burford repeatedly articulates the purpose of abstention as facilitating the relationship between the federal government and the states. It notes the importance of preserving "the rightful independence of state governments in carrying out their domestic policy." Burford, 319 U.S. at 318. Municipalities have no such independence. Municipalities, unlike states, "are not themselves sovereign." *** "[T]hey do not receive all the federal deference of the States that create them." *** The only authority they possess is derived from the state. *** Therefore, we find it appropriate to look to state policy to determine if Burford abstention is warranted.

While the presence of a state agency is not conclusive proof that Burford abstention is appropriate, the Supreme Court has found that the presence of such a process does indicate that a court should consider Burford abstention. ***This emphasis on state administrative involvement is clear in our decisions on Burford abstention. In most cases in which we have applied Burford, the creation of an agency to promulgate and administer the state policy has served as evidence of the state's level of concern and of its desire for uniform application of the policy. ***Where there is not an agency devoted to implementing the policy in question, we have looked elsewhere for proof of state involvement. ***

Like MacDonald, there is both a state and local policy at interest here. And, like MacDonald, we find it appropriate to focus on the state rather than the local policy. The evidence of a coherent state policy here is minimal. ***

Our decision in this case is consistent with the approach taken by the Third Circuit in Heritage Farms, Inc. v. Solebury Twp., 671 F.2d 743, 747-48 (3d Cir.), cert. denied, 456 U.S. 990, 102 S. Ct. 2270, 73 L. Ed. 2d 1285 (1982). There, the court found Burford abstention inappropriate for a claim based on a local land use ordinance when there was no indication that the claim disrupted the policies in a state statute authorizing the development of local ordinances and instead challenged "the application of those policies by a single township." ****

We recognize that we previously have cited favorably the Fourth Circuit's decision in Pomponio v. Fauquier County Bd. of Supervisors, 21 F.3d 1319, 1327 (4th Cir. 1994) (en banc), which held that "absent unusual circumstances, a district court should abstain under the Burford doctrine from exercising its jurisdiction in cases arising solely out of state or local zoning or land use law, despite attempts to disguise the issues as federal claims." *** We now find the Fourth Circuit's approach unpersuasive as it applies to local zoning ordinances.

To summarize, we hold that Burford abstention applies only to statewide policies and that the appropriate focus for Burford abstention is state policy, rather than local policy. Additionally, we hold that the zoning dispute in this case does not implicate the kind of coherent state policy that would warrant Burford abstention.

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