                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2005

Rucci v. Cranberry
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2440




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                                                             NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                     No. 04-2440
                                    ____________

                            SEBASTIAN RUCCI;
                    RUCCI DEVELOPMENT COMPANY, INC.,
                             an Ohio corporation,

                                          Appellants

                                           v.

                          CRANBERRY TOWNSHIP,
                     PENNSYLVANIA, a municipal corporation

                    Appeal from the United States District Court
                      For the Western District of Pennsylvania
                               D.C. No.: 03-cv-01327
                   District Judge: Honorable Donetta W. Ambrose
                                    ____________

                                Argued: March 30, 2005

                  Before: ALITO, SMITH, and ROSENN, Circuit Judges

Sebastian Rucci (Argued)
3058 Chardonnay Lane
Poland, OH 44514

       Counsel for Appellants

Stephen J. Poljak (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
600 Grant Street
2900 U.S. Steel Tower
Pittsburgh, PA 15219
       Counsel for Appellee

                                 ( Filed: May 11, 2005)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

       Appellants Sebastian Rucci and Rucci Development, Inc. (collectively “Rucci”)

appeal the dismissal by the United States District Court for the Western District of

Pennsylvania of their Equal Protection claim stemming from the refusal of Cranberry

Township (the “Township”) to approve Rucci’s housing development proposal. Rucci

also appeals the District Court’s decision to abstain from hearing his Pennsylvania state

law claims pursuant to the abstention doctrine announced in Burford v. Sun Oil Co., 319

U.S. 315 (1943).1 The judgment of the District Court will be affirmed.

                                             I

       Because we write solely for the parties, we include only those facts relevant to the

issues presented on appeal. Rucci endeavored to develop a housing subdivision on 15

acres of land he owns in Cranberry Township, Pennsylvania. The land is surrounded by

single family subdivisions and is abutted by two unlimited-access roads, North Boundary




  1
   The District Court had jurisdiction based on 28 U.S.C. §§ 1331, 1332, 1343 and we
have jurisdiction pursuant to 28 U.S.C. § 1291.

                                             2
and Franklin, both of which are classified as “collector” roads.2 These roads are bordered

by lots accessed by direct driveways.

       On June 9, 2003, Rucci submitted an application to the Township seeking to

subdivide the property into fourteen lots. Because the property is narrow, roadway access

by an interior subdivision road is not possible. Instead, each lot was to have direct

driveway access to the existing collector roadway.3

       The proposed fourteen-lot subdivision complied with all of the Township’s

ordinances except § 96.604.4 which provides that:

       No lot shall be provided with direct vehicle access to an arterial or collector
       street unless specifically approved by the supervisors when no alternative is
       possible. Normally, only one street, driveway or point of vehicle access
       shall be permitted from a subdivision onto an arterial or collector street;
       however, two or more streets, driveways or points of vehicle access may be
       permitted if they will improve the traffic circulation and safety in the area.

To obtain the Township’s approval of “two or more” driveways, Rucci proposed to

donate land to improve traffic flow along North Boundary and Franklin roads.

       The Township denied Rucci’s subdivision application on the ground that he

“elected to use the existing roadway for access in contravention of Subdivision §

96.604.4, and because [he] did not propose to widen and improve North Boundary and



  2
    A “collector” road is “a street which serves or is designed to serve moderate flows of
traffic and which provides for traffic movements between arterial [i.e., heavy traffic flow]
and local streets or between another collector street and local streets.” § 96.604.4
  3
   Although the particular roadway access scheme is not germane to this appeal, Rucci’s
plan called for each pair of adjacent homes to share a direct access driveway.

                                              3
Franklin Road.”

        Subsequent discussions between Rucci and the Township revealed that the

Township would not approve any development having more than one driveway. As a

result, Rucci filed a five-count complaint against the Township in the United States

District Court. The Township filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), in

response to which Rucci amended his complaint. Count I of the amended complaint

sought a declaratory judgment that the Township’s denial of Rucci’s development plan

violated his rights under the Pennsylvania Municipal Planning Code; Count II alleged a

deprivation of property without just compensation in violation of the Pennsylvania

Constitution, Article 1, sections 4 and 10; and Count III asserted a violation of 42 U.S.C.

§ 1983, more particularly the Fourteenth Amendment’s Equal Protection guarantee.

        The Township moved to dismiss the amended complaint. While this motion was

pending, Rucci moved for, but was denied, a Scheduling Order pursuant to Fed. R. Civ. P.

16(b).4 On May, 17, 2004, the District Court dismissed Rucci’s Equal Protection claim

(Count III) for failure to state a claim upon which relief can be granted. In addition, the

District Court abstained under the Burford Abstention doctrine from hearing the state law


  4
    Fed. R. Civ. P. 16(b) states in relevant part:
[T]he district judge . . . shall, after receiving the report from the parties under Rule 26(f)
or after consulting with the attorneys for the parties and any unrepresented parties . . .
enter a scheduling order that limits the time
        (1) to join other parties and to amend the pleadings;
        (2) to file motions; and
        (3) to complete discovery.
                                               ****

                                               4
claims (Counts I and II). Rucci appeals the District Court’s Fed. R. Civ. P. 12(b)(6)

dismissal and its decision to abstain under Burford. Additionally, Rucci raises for the

first time on appeal the District Court’s refusal to issue a Scheduling Order mandated by

Fed. R. Civ. P. 16(b).5

        We exercise plenary review over a district court's dismissal of a complaint under

Fed. R. Civ. P. 12(b)(6). Gary v. Air Group, Inc., 397 F.3d 183, 186 (3d Cir. 2005). “In

evaluating the propriety of dismissal, we accept all factual allegations as true, construe

the complaint in the light most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be entitled to relief." Three

Rivers Ctr. for Indep. Living v. Hous. Auth. of the City of Pittsburgh, 382 F.3d 412, 419

(3d Cir. 2004) (citation and internal quotations omitted).

        We review the District Court’s decision to abstain for abuse of discretion, but its

analysis of the law on abstention is subject to plenary review. Chiropractic Amer. v.

Lavecchia, 180 F.3d 99, 103 (3d Cir. 1999).

        Rucci claims the Township denied him equal protection of the laws by rejecting

his development proposal. According to Rucci, his property is similarly situated to that of

other landowners who have direct driveway access to a collector roadway and there is no

rational basis for disparate treatment.



  5
    Because this Court has consistently held that it will not consider issues raised for the
first time on appeal, Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994), we reject
Rucci’s Scheduling Order appeal.

                                              5
        Because the Township ordinance does not burden a fundamental right nor involve

the classification of a suspect class, the Court reviews the governmental action under a

rational basis standard. Angstadt v. Midd-W. School Dist., 377 F.3d 338, 344 (3d Cir.

2004). Under rational basis review, an ordinance will withstand an Equal Protection

challenge if it is “reasonable, not arbitrary, and bears a rational relationship to a

(permissible) state objective.” Congregation Kol Ami v. Abington Township, 309 F.3d

120, 133 (3d Cir. 2002) (internal quotation omitted). Moreover, the constitutionality of

the ordinance is presumed, City of New Orleans v. Dukes, 427 U.S. 297, 303 (1979), and

will not be set aside if any state of facts reasonably may be conceived to justify it.

McGowan v. Maryland, 366 U.S. 420, 425-26 (1961).

        The Township contends the ordinance is designed to improve traffic safety.

Limiting driveway access to collector and arterial roads is, indeed, a logical way to

improve traffic safety and circulation because it restricts the number of access points from

which vehicles can approach the heavily traveled roads. Thus, the ordinance satisfies

deferential rational review.

        Having satisfied rational review, this case presents a situation where the

ordinance’s presumption of rationality is in tension with the liberal pleading standard of

Fed. R. Civ. P. 12(b)(6). To accommodate both interests, we accept as true all of the

complaint's allegations, including all reasonable inferences that follow, and assess

whether they are sufficient to overcome the presumption of rationality that applies to the



                                               6
ordinance. See e.g., Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir. 1992);

Zavatsky v. Anderson, 130 F. Supp. 2d 349, 356 (D. Conn. 2001).

       According to this calculus, Rucci’s Equal Protection claim is insufficient to

overcome the ordinance’s presumption of rationality. To mount a successful Equal

Protection challenge to a zoning ordinance, plaintiff must prove that the Township treated

him differently from similarly situated landowners without any reasonable basis.

Congregation Kol Ami, 309 F.3d at 137. However, Rucci fails to allege sufficient facts to

establish that he is similarly situated to other landowners with direct driveway access.

       Although Rucci alleges his property is “practically surrounded by single family

subdivisions,” he never states that any subdivision has more than one point of vehicle

access to the collector roadway. What he does allege regarding area landowners is that

“directly south of the property is a subdivision with internal street access from Franklin

Road, north and east of the property are single family homes, and to the east of the

property is a public park.” However, this fails to allege that Rucci is treated disparately.

       Similarly, Rucci’s allegation that “many other landowners have direct driveway

access to North Boundary and Franklin Road” is insufficient without alleging that they

are part and parcel of a housing subdivision. See Schuylkill Energy Res., Inc. v. Pa.

Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997) (“We are not . . . required to accept

as true unsupported conclusions and unwarranted inferences.”). Nowhere in the

complaint does Rucci identify any other landowner who subdivided property and yet was



                                              7
permitted more than one vehicle access point to a collector or arterial road. For all we are

told, each lot along North Boundary and Franklin roads with direct driveway access is a

single lot rather than a subdivision. Without identifying another subdivision with

multiple vehicle access points to a collector or arterial road, Rucci has failed to establish

that he is similarly situated. See City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256

(3d Cir. 1998) (“[The court cannot] ‘assume that the [plaintiff] can prove facts that it has

not alleged . . . .’”) (quoting Assoc. Gen. Contractors of Cal. v. Cal. State Council of

Carpenters, 459 U.S. 519, 526 (1983)).

        Because Rucci fails to allege, as a preliminary matter, that the ordinance

differentially regulates his property from the property of other landowners, and because

the complaint cannot defeat rational-basis review,6 we affirm the District Court’s

dismissal of the Equal Protection claim under Fed. R. Civ. P. 12(b)(6).7


  6
    Rucci suggested at oral argument that he is a “class of one,” irrationally treated
differently from all other property owners in the Township. See Village of Willowbrook
v. Olech, 528 U.S. 562 (2000) (per curiam); Eichenlaub v. Township of Indiana, 385 F.3d
274, 286 (3d Cir. 2004). Rucci fares no better under this theory because the Township
has numerous rational bases for the ordinance in question. See Bizarro v. Miranda, 394
F.3d 82, 88-89 (2d Cir. 2005). The ordinance sets out a bright-line rule, and this makes it
easier for the ordinance to be administered. In addition, the ordinance includes a
procedure by which applicants can seek a variance, which offers added protection against
irrational results. The ordinance also advances a legitimate state interest in safety,
reducing the number of cars (at least at the margin) that can back out onto busy streets.
  7
    The Dissent insists that Rucci’s equal protection claim is “unripe” for judicial review.
According to the Dissent, Rucci’s failure to seek a modification or waiver from the
Township rendered his claim nonjusticiable because a federal court cannot determine
whether a landowner has been dissimilarly treated or whether such treatment is rationally
related to a legitimate government purpose until the Township has fully and finally

                                              8
        The second issue Rucci raises on appeal concerns the District Court’s decision to

abstain under Burford from hearing the state law claims. The abstention doctrine, “under

which a District Court may decline to exercise or postpone the exercise of its jurisdiction,

is an extraordinary and narrow exception to the duty of a District Court to adjudicate a

controversy properly before it.” Allegheny County v. Frank Mashuda Co., 360 U.S. 185,

188-89 (1959). Designed “to soften the tensions inherent in a system that contemplates

parallel judicial processes[,]” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987),

abstention is warranted “only in the exceptional circumstances where the order to the

parties to repair to the state court would clearly serve an important countervailing

interest.” Frank Mashuda Co., 360 U.S. at 188-89.

        Under Burford Abstention, a district court may decline to exercise or postpone

jurisdiction, even diversity jurisdiction, “where a difficult question of state law is

presented which involves important state policies or administrative concerns.” Heritage

Farms, Inc. v. Solebury Township, 671 F.2d 743, 746 (3d Cir. 1982); Grode v. Mut. Fire,


considered how a specific landowner is treated under the zoning scheme. See Taylor
Investments, Ltd. V. Upper Darby Twp., 983 F.2d 1285, 1295 (3d cir. 1993). None of the
parties has raised a ripeness issue on appeal. Although we agree with the Dissent that this
court may raise the issue sua sponte, where, as here, the issue of ripeness goes only to
prudential considerations as opposed to constitutional concerns, we are free to exercise
jurisdiction over the case. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1012-13 (1992) (noting that a takings plaintiff's failure to apply for a special permit “goes
only to the prudential ‘ripeness’” and concluding that prudence requires the Court hear
the merits of the case); see also, Simmonds v. I.N.S., 326 F.3d 351, 358 n.7 (2d Cir.
2003). Because we see no error in the District Court’s dismissal of Plaintiff’s action on
the ground of an absence of equal protection, we choose to exercise jurisdiction for
reasons of finality and judicial economy.

                                               9
Marine & Inland Ins. Co., 8 F.3d 953, 956 (3d Cir. 1993).

        Rucci’s state law claims involve Pennsylvania’s Municipal Planning Code and

eminent domain procedures. The District Court found Burford Abstention appropriate

based on the “purely local,” state-law nature of these issues, as well as the fact that no

federal claims of any kind remained once it dismissed the Equal Protection challenge.

Rucci counters that “the Pennsylvania Municipalities Planning Code is not the type of

uniform and elaborate statewide regulation necessary for Burford Abstention, and there is

no danger that a federal court decision in this case will disrupt Pennsylvania’s policies or

plans with respect to land use.”

        The question before us, then, is whether the District Court’s decision to abstain

from purely state law challenges to the Pennsylvania Municipal Planning Code and

eminent domain procedures was an abuse of discretion. We hold that it was not.

        This Court has noted that “land use law is one of the bastions of local control,

largely free of federal intervention.” Congregation Kol Ami, 309 F.3d at 135-36. Indeed,

as the Supreme Court has recognized, “[t]he power of local governments to zone and

control land use is undoubtedly broad and its proper exercise is an essential aspect of

achieving a satisfactory quality of life in both urban and rural communities. . . . [T]he

courts generally have emphasized the breadth of municipal power to control land use. . .

." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981); see also FERC v. Miss.,

456 U.S. 742, 768 n.30 (1982) (“[R]egulation of land use is perhaps the quintessential



                                             10
state activity.”); Izzo v. Borough of River Edge, 843 F.2d 765, 769 (3d Cir. 1988) (“Land

use policy customarily has been considered a feature of local government and an area in

which the tenets of federalism are particularly strong.”).

       For this reason, federal courts are generally loathe to interfere with land use

regulation. Izzo, 843 F.2d at 769 (“Federal courts have expressly disavowed any desire to

sit as a statewide board of zoning appeals hearing challenges to actions of

municipalities.”). Because federal court intervention in this case might disrupt an

important Pennsylvania state policy, and because all federal claims have been dismissed,

we perceive no abuse of discretion in the District Court’s abstention from hearing Rucci’s

Municipal Planning Code claim.

       Like land use regulation, eminent domain is another distinctly state-law matter.

La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28-29 (1959) (remarking that

eminent domain was “intimately involved with state prerogative” and noting the

“sensitive nature” of federal court intervention in a state's eminent domain system).

Indeed, the state-regulated nature of eminent domain is illustrated by Pennsylvania’s

extensive Eminent Domain Code, 26 P.S. § 1-101 et seq.

       The Pennsylvania Eminent Domain Code supplies “a complete and exclusive

procedure and law to govern all condemnations of property for public purposes and the

assessment of damages therefor . . . .” 26 P.S. § 1-303. Moreover, “the Eminent Domain

Code fully protects the rights of the property owner and guarantees to him the



                                             11
constitutional safeguards to which he is entitled, including appropriate appellate review.”

Coles v. City of Phila., 145 F. Supp. 2d 646, 652 (E.D. Pa. 2001). Given the substantial

and highly-developed nature of Pennsylvania’s eminent domain procedures, it is not

inappropriate for a district court to abstain from hearing such claims. Grode, 8 F.3d at

956 (“Burford abstention is usually applied to . . . state eminent domain procedures.”).

Accordingly, the District Court did not abuse its discretion by abstaining under Burford

from hearing Rucci’s state law claims.8

                                             II

       For the reasons set forth above, the District Court’s dismissal of Rucci’s Equal

Protection claim, as well as the Court’s decision to abstain from hearing the state law


  8
     In Heritage Farms, Inc. v. Solebury Township., 671 F.2d 743, 748 (3d Cir. 1982), we
held that Burford Abstention was inappropriate because state land uses were not being
attacked, but rather a single Township’s alleged illegal application of its policies.
Although the case at bar implicates a single Township as well, Heritage is readily
distinguishable because it was not merely a land use case; it contained serious allegations
that local government officials fraudulently acted under color of law for their own
personal gain to thwart those who would compete with their private business venture.
The Heritage Court admonished district courts “faced with a claim arising out of land use
questions, to examine the facts carefully to determine what the essence of the claim is. If
it is an unlawful conspiracy like the one alleged here, the mere presence of land use issues
should not trigger a mechanical decision to abstain.” The implicit instruction is that
where, as here, the only issue present is a land use question, Burford Abstention may be
appropriate. Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988), is not to the
contrary. In that case, as here, the district court abstained from deciding a land use
dispute over a zoning ordinance. But the Izzo Court found an abuse of discretion because
Federal Communications Commission regulations preempted the zoning ordinance in
question. See id. at 768. The regulations “infused into the proceedings a federal concern,
a factor which distinguishes the case from a routine land use dispute having no such
dimension.” Id. See also id. at 769 (“If only state law applies, Burford abstention carries
more weight than when federal interests require evaluation as well.”).

                                            12
claims under the Burford Abstention doctrine, will be affirmed.




                                           13
Rucci v. Cranberry Township, Case No. 04-2440

SMITH, Circuit Judge, dissenting.

        Because I believe the majority errs in failing to consider whether Rucci’s equal

protection claim is ripe and in holding that abstention was proper in this case, I

respectfully dissent.

        This Court has repeatedly said that we must consider ripeness sua sponte. In

Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993), we considered whether a landowner’s

equal protection claim was ripe even though the county, which had denied the landowner

a permit, raised ripeness for the first time on appeal. We explained that, “[b]ecause issues

of ripeness involve, at least in part, the existence of a live ‘Case or Controversy,’ we . . .

must determine whether the issues are ripe for decision in the ‘Case or Controversy’

sense. Further, to the extent that questions of ripeness involve the exercise of judicial

restraint from unnecessary decision of constitutional issues, the Court must determine

whether to exercise that restraint.” Id. at 974 (quoting Blanchette v. Connecticut Gen.

Ins. Corps., 419 U.S. 102, 138 (1974)). Recently, in Lauderbaugh v. Hopewell Township,

319 F.3d 568 (3d Cir. 2003), also an equal protection land-use case, we considered

ripeness even though that issue was raised by the Township for the first time on appeal.

Id. at 574 (citing, inter alia, Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d

Cir. 1988) (Becker, J.) (“This Court has recognized that considerations of ripeness are

sufficiently important that we are required to raise the issue sua sponte even though the



                                              14
parties do not.”)). See also Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003)

(Rosenn, J.) (“[C]onsiderations of ripeness are sufficiently important that the court is

required to raise the issue sua sponte even though the parties do not.”) (citation omitted).

        Our landmark land-use decision in Taylor Investments, Ltd. v. Upper Darby Twp.,

983 F.2d 1285 (3d Cir. 1993), clarifies why we must consider ripeness sua sponte and

why Rucci’s case is unripe. Taylor held that, “[u]ntil the Township has fully and finally

considered how a specific landowner is treated under the zoning scheme, a federal court

cannot determine whether the landowner has been dissimilarly treated nor whether such

treatment is rationally related to a legitimate government purpose.” Id. at 1295. Citing

Taylor, the District Court reasoned that Rucci’s equal protection claim was unripe

because he failed to seek a “modification or waiver” from the Township. The District

Court nevertheless considered the merits of that claim because Rucci alleged that further

efforts to persuade the Township would have been futile. However, as Rucci conceded at

oral argument before this Court, there is no futility exception to ripeness requirements in

the Third Circuit. Because we consistently have said we “must” consider ripeness sua

sponte, and because Taylor holds that without full and final consideration we “cannot”

determine whether there has been an equal protection injury, I would hold Rucci’s equal

protection claim non-justiciable.9


  9
   At oral argument, Rucci for the first time alleged that he effectively sought a “modification or
waiver” from the Township in his application, and therefore he received “full and final”
consideration. The record suggests otherwise. Rucci’s application to the Township plainly
argues that his subdivision plan meets the driveway ordinance requirements.

                                                15
        I believe the majority also errs in its abstention analysis. Under University of

Maryland v. Peat Marwick Main & Co., 923 F.2d 265, 269-70 (3d Cir. 1991), we review

a district court’s decision to abstain for abuse of discretion. University of Maryland

emphasized, however, that “a district court has little or no discretion to abstain in a case

that does not meet traditional abstention requirements,” id. at 270-71, and whether a case

“falls in the area within which the district court may exercise discretion is therefore a

matter of law, reviewable on a plenary basis.” Id. at 271. I fail to see where the majority

opinion conducts plenary review of the District Court’s initial categorization of this case.

In my opinion, Rucci’s case falls short of traditional abstention requirements, and

therefore the District Court abused its discretion in abstaining.

        According to University of Maryland, Burford abstention is appropriate “where

the ‘exercise of federal review of the question in a case and in similar cases would be

disruptive of state efforts to establish a coherent policy with respect to matters of

substantial public concern.’” Id. at 270 (quoting New Orleans Pub. Serv., Inc. v. Council

of New Orleans, 491 U.S. 350 (1989)). Heritage Farms, Inc. v. Solebury Twp., 671 F.2d

743 (3d Cir. 1982), emphasized that Pennsylvania’s land-use code does not implicate this

central Burford concern. Id. at 747-48 (“[t]he Pennsylvania Municipalities Planning

Code does not involve the type of uniform and elaborate statewide regulation [at issue in

Burford]. Furthermore, there is no danger that a federal court decision in this case will

disrupt Pennsylvania’s policies or plans with respect to land use. . . .”). Later, in Izzo v.



                                              16
Borough of River Edge, 843 F.2d 765 (3d Cir. 1988), we stated that “[c]oncededly, a

system of land use regulation may be of special interest to a state and municipality;

however, the scheme at hand does not approach the complexity of the one under scrutiny

under Burford.” 10 In Gwynedd Properties, Inc. v. Lower Gwynedd Twp., 970 F.2d 1195

(3d Cir. 1992), we explained that Heritage Farms and Izzo “admonish district courts not

to dismiss claims merely because they may involve land use issues.” Id. at 1203. That

seems a fair characterization of what the District Court did here. Unlike the majority, I do

not believe the lack of a federal issue in the present case (assuming diversity jurisdiction

itself does not constitute a federal interest) tips the scales in favor of abstention. Neither

Heritage Farms nor Izzo suggests that the presence or absence of a federal issue is

dispositive. As University of Maryland shows, the heart of the “traditional” Burford

inquiry – tracing its heritage back to Burford itself – is whether coherent state policy will

be disrupted. Whether there is a federal interest in the case is ancillary to that question.

Here, with the former, central question answered clearly in the negative, I find it

insufficient to argue that a negative answer to the latter, auxiliary question sweeps this

case into traditional Burford territory. Accordingly, I would hold that abstention by the




  10
    The majority reasons, as did the District Court, that Rucci’s inverse condemnation claim
implicates Pennsylvania’s Eminent Domain Code, which it maintains erects “substantial and
highly-developed” procedures for condemnation of property. But no such condemnation
occurred here. Rucci’s state claims are under the Municipalities Planning Code, discussed
above, and under the Pennsylvania Constitution for inverse condemnation. Unlike a traditional
condemnation, an inverse condemnation is an indirect, regulatory condemnation – here allegedly
effected by the Cranberry Township subdivision ordinance, not a statewide code.

                                              17
District Court was error.

       For the foregoing reasons, I respectfully dissent.




                                            18
