UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VERONICA MOODY JOHNSON,
Plaintiff-Appellant,

v.

CITY OF CHESAPEAKE, VIRGINIA, a
municipal corporation, itself; CITY
COUNCIL OF THE CITY OF CHESAPEAKE,
VIRGINIA, in its official capacity;
PLANNING COMMISSION OF THE
CITY OF CHESAPEAKE, VIRGINIA, in its
official capacity; WILLIAM E. WARD;
DALTON S. EDGE; JOHN A.
COSGROVE; JOHN M. DE TRIQUET;
ALAN P. KRASNOFF; DWIGHT M.
PARKER; WILLIAM H. PIERCE; DEBBIE
RITTER; GENE A. WATERS, In their
                                       No. 99-2256
official capacity as members of the
city council of the City of
Chesapeake and Personally, in their
individual capacities; RODNEY L.
FOSTER; CLIFTON D. CABARRAS;
EDWARD L. HALL; FRANKIE W.
CARROLL; BRYAN L. COLLINS; SANNY
S. DAVENPORT; LARRY W. RADFORD;
GLADYS A. WILFORE; THOMAS T.
WINBORNE, In their official capacity
as members of the Planning
Commission of the City of
Chesapeake, Virginia and
Personally, in their individual
capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-99-736-2)

Submitted: January 18, 2000

Decided: February 25, 2000

Before WIDENER, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Veronica Moody Johnson, Appellant Pro Se. Thomas Jeffrey Salb,
BREEDEN, MACMILLAN & GREEN, Norfolk, Virginia, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Veronica Moody Johnson sought a special exception permitting her
to keep a five-foot high brick wall she built around her home in Ches-
apeake, Virginia. The local ordinance limited fence heights to four
feet. When the Chesapeake Planning Commission and the Chesa-
peake City Council both denied her application, Ms. Johnson filed

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separate, but essentially identical, actions in federal district court and
in the Circuit Court of the City of Chesapeake, seeking injunctive
relief and damages. The federal district court dismissed, without prej-
udice, the federal action, citing Burford abstention grounds. See
Burford v. Sun Oil Co., 319 U.S. 315, 333-36 (1943) (holding that
when timely and adequate state court review is available, federal
court sitting in equity should abstain from review of cases involving
difficult questions of state law or state's administration of its own reg-
ulatory schemes). Ms. Johnson timely appealed. We hold that the dis-
missal of Ms. Johnson's claims that sounded in equity was proper.
However, because a district court may not dismiss, on Burford absten-
tion grounds, claims for damages at law, we reverse the dismissal of
those claims.

"[F]ederal courts have a strict duty to exercise the jurisdiction that
is conferred upon them by Congress." Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 716 (1996). However, "federal courts may decline
to exercise their jurisdiction, in otherwise exceptional circumstances,
where denying a federal forum would clearly serve an important
countervailing interest." Id. (internal quotations and citations omit-
ted). Zoning and land use decisions are fundamentally matters of state
law, and Ms. Johnson has a lawsuit pending in state court that virtu-
ally duplicates the claims raised in federal court. When it falls within
our discretion to do so, we abstain from review of such cases in defer-
ence to the state's complex regulatory scheme for managing land use.
See Pomponio v. Fauquier County Bd. of Supervisors , 21 F.3d 1319,
1327 (4th Cir. 1994) ("[W]e believe that in the usual case federal
courts should not leave their indelible print on local and state land use
and zoning law by entertaining these cases and, in effect, sitting as a
zoning board of appeals[.]"). Thus, to the extent that Ms. Johnson's
complaint demanded equitable relief, the district court properly dis-
missed those demands.

On the other hand, the Supreme Court has held that a district court
may not dismiss, under Burford abstention, claims for monetary dam-
ages at law, noting that, "[W]e have permitted federal courts applying
abstention principles in damages actions to enter a stay, but we have
not permitted them to dismiss the action altogether." Quackenbush,
517 U.S. at 730; see also Johnson v. Collins Entertainment Co., Inc.,
199 F.3d 710, 727 (4th Cir. 1999) (noting that "the [Supreme] Court

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held [in Quackenbush] that Burford can support only a stay, and not
the outright dismissal or remand, of a damages action"). Thus, a dis-
trict court may not, on Burford abstention grounds, relinquish juris-
diction over claims for damages at law, and consistent with
Quackenbush, we reverse the district court's dismissal of Ms. John-
son's damages claims at law.

In so reversing, we note that the Sixth Circuit's recent decision in
MacDonald v. Village of Northport, Michigan, 164 F.3d 964, 970 (6th
Cir. 1999), which permitted the complete dismissal of a complaint
demanding monetary relief, is not to the contrary. First, insofar as the
MacDonald court held that "the Burford abstention doctrine and the
Eleventh Amendment created `grounds together' to dismiss" the case
in its entirety, id. at 973, it is unclear which basis justified the dis-
missal of the claims for money damages. However, the MacDonald
court implied that dismissal of the damages claims was not justified
on Burford grounds, noting that "The Fourth Circuit has recognized
that Quackenbush overruled Pomponio to the extent that Pomponio
permitted a district court to dismiss an action for damages rather than
enter a stay to await the conclusion of state proceedings."
MacDonald, 164 F.3d at 969 n.4. Second, while one of the counts in
the MacDonald complaint did seek monetary relief, the monetary
relief sought was in the nature of restitution.* Because restitution is
an equitable remedy, cf. Maryland Dept. of Human Resources v.
United States Dept. of Agriculture, 976 F.2d 1462, 1482 (4th Cir.
1992) (noting the "equitable nature of restitution"), dismissal of that
equitable claim could have been proper on Burford grounds. Finally,
to the extent that the demand for monetary damages did constitute a
claim at law, the Sixth Circuit relied upon the Eleventh Amendment
to permit dismissal of the complaint, and the Eleventh Amendment
could have been the sole justification for the dismissal of those
demands for monetary damages at law. Regardless, we are confident
that the Sixth Circuit did not intend to endorse the complete dismissal,
on Burford abstention grounds, of a claim for monetary damages at
law.
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*"Count II alleged that the Village had `taken' the MacDonalds' prop-
erty without just compensation, and that the MacDonalds were damaged,
by the loss of quite enjoyment of their property and by the diminution
of its value, in an amount over $50,000." MacDonald, 164 F.3d at 967.

                    4
Therefore, we affirm the dismissal of the claims in equity and
reverse the dismissal of the damages claims. We deny Ms. Johnson's
motion for oral argument and dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

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