                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                            UNITED STATES COURT OF APPEALS
                                                                                       October 24, 2003
                                 FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                  _________________________                                 Clerk
                                        No. 03 – 30346
                                    SUMMARY CALENDAR
                                  _________________________

LOUIS R. KOERNER, JR.

                       Plaintiff - Appellant

   v.

THE GARDEN DISTRICT ASSOCIATION; MICHELLE O. LANDRIEU; PAUL MAY; CITY
OF NEW ORLEANS

                       Defendants - Appellees

______________________________________________________________________________

                  Appeal from the United States District Court for the
                            Eastern District of Louisiana
                                  (00-CV-2206-I)
______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal we review the district court's decision to stay these proceedings pending the

resolution of parallel state proceedings. For the following reasons, we affirm the district court’s

decision.




        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

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                                                 I.

                       FACTUAL AND PROCEDURAL BACKGROUND

       In 1979, Plaintiff - Appellant, Louis R. Koerner, Jr. (hereinafter, “Koerner”) purchased the

property located at 1204 Jackson Avenue (hereinafter, “1204 Jackson”) in the New Orleans’

neighborhood known as the Garden District. 1204 Jackson is zoned for residential, non-

commercial use, but Koerner uses the house as his law office. The New Orleans Comprehensive

Zoning Ordinance states that a home may be used for an occupation, so long as (1) it is carried on

by a member of the family residing on premises; (2) no person not a resident is employed; and (2)

not more than 15% of the floor area of the dwelling is used for the occupation.

       In 1979, the City of New Orleans (hereinafter, “City”) cited Koerner for zoning violations

at 1204 Jackson. The City alleged that Koerner was using in excess of 15% of the property for

the operation of a law practice. In response, Koerner reduced the size of the office space to the

15% maximum.

       In 1991, the City again investigated Koerner’s use of 1204 Jackson for commercial

purposes in violation of the applicable zoning regulations. This investigation was instigated by

complaints by Defendants-Appellees, The Garden District Association and Michelle Landrieu

(hereinafter, collectively “GDA”). This investigation determined that Koerner was in violation of

the zoning ordinances by having non-resident workers employed at 1204 Jackson. The City

ordered Koerner to stop his non-conforming use of the property.

       In 1997, Koerner applied to the City for a permit to operate a bed and breakfast at 1204

Jackson. Koerner argued that he had acquired a right to a non-conforming use of the property for

commercial purposes, based on the failure of the City to act against his violation of the zoning


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ordinance in regard to the non-resident employees. This application was denied by the City.

Koerner appealed the decision to the administrative body established to review zoning issues, the

City of New Orleans Board of Zoning Adjustment (hereinafter, “BZA”). The BZA affirmed the

decision.

       Koerner then filed suit in the Civil District Court for the Parish of Orleans, Civil Action

No. 97-15968 (hereinafter, “CDC Zoning Action”), requesting a Writ of Certiorari, Mandamus

and Declaratory Judgment, seeking to overturn the BZA’s decision. In the CDC Zoning Action,

Koerner named only the City of New Orleans as defendant; the GDA was not a party to that

proceeding. The state trial court affirmed the BZA’s determination. Koerner then appealed the

trial court’s decision to the Louisiana Fourth Circuit Court of Appeals, which also affirmed.

Koerner’s application for writ of certiorari was denied by the Louisiana Supreme Court.

       Despite the clear holding of the BZA and a final judgment by the state court of appeals,

Koerner continued to use 1204 Jackson for prohibited commercial purposes and even expanded

the use of the property to include a bed and breakfast.

       The City again investigated Koerner’s use of his property after complaints from the GDA.

During this investigation, City inspectors found that Koerner did not have an occupational licence,

which is required for attorneys practicing in the City. The City issued a citation for failure to have

such a license.

       Koerner’s commercial use of his property also impacted the tax status of that property.

After purchasing 1204 Jackson, Koerner married Jeane Meade, who owned a house on the next

block of Jackson Avenue. In 2000, Betty Jefferson, Assessor for the Fourth Municipal District of

the City of New Orleans, investigated whether Koerner was entitled to a homestead exemption on


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1204 Jackson. The GDA provided information to Jefferson as part of this investigation. Based

on findings that Koerner operated a law office at 1204 Jackson, and that Meade and Koerner

resided at 1314 Jackson Avenue, Jefferson determined that Koerner was not entitled to claim a

homestead exemption for 1204 Jackson. Jefferson was initially a defendant in this proceeding, but

all disputes between her and Koerner were resolved through a consent judgment.

        In the present suit, Koerner alleges that the GDA encouraged the City to violate Koerner’s

civil rights. Koerner alleges that the City’s issuance of a citation for his failure to obtain an

occupational license and Jefferson’s revocation of his homestead exemption for 1204 Jackson

were influenced by the GDA.

        In September of 2000, the GDA filed a motion to dismiss. The GDA asserted that the

Koerner failed to state a cause of action because: (1) the GDA was not state a actor acting “under

color of state law”; (2) any actions taken in petitioning the governmental bodies could not be the

basis of any liability under the First Amendment pursuant to the Noerr-Pennington Doctrine; and

(3) that the court should not exercise its supplemental jurisdiction over the state law claims.

        On April 2, 2001, the GDA filed suit in the Civil District Court for the Parish of Orleans in

the matter styled as Garden District Association v. Louis R. Koerner, Jr., C.A. No. 2001-

5737(H)(12) (hereinafter, “GDA Enforcement Action”). The GDA sought an injunction to

prohibit Koerner from continuing his use of 1204 Jackson in a manner that violated the

Comprehensive Zoning Ordinance.

        On December 17, 2001, the trial court granted the GDA’s motion to dismiss, ruling that:

(1) the GDA is a private actor, and does not act under color of state law; (2) the GDA may levy

complaints to the appropriate City departments and officers, report violations and seek


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enforcement of the laws; (3) all such actions of contact between the GDA and the City are

protected by the First Amendment under the Noerr-Pennington Doctrine; and (4) that the court

would not exercise its supplemental jurisdiction over the state law claims.

       Ignoring the findings of the trial court’s ruling, Koerner then filed a motion for leave to

file his first amended complaint. Koerner sought to reassert the previously dismissed claims

against the GDA and to add new claims seeking injunctive or declaratory relief that he had

obtained a non-conforming commercial use of the property. This motion was granted in part and

denied in part. The court refused to allow the reassertion of claims against the GDA; however,

the court did allow Koerner to add claims for injunctive or declaratory judgment.

       On February 24, 2003, during the pretrial conference, the trial court (1) continued the trial

without date and (2) requested that the GDA file a motion to stay the matter pending resolution

of the GDA Enforcement Action pending in state court.

       The GDA filed a motion to stay on February 28, 2003, asserting that the trial court should

stay the matter pending resolution of the GDA Enforcement Action pursuant to the Burford

Abstention Doctrine. The GDA argued that the issues remaining to be tried were dependant upon

the determination of the issue pending before the state court in the GDA Enforcement Action. On

March 27, 2003, the trial court granted the motion to stay. This appeal followed.

                                                 II.

                                    STANDARD OF REVIEW

       We review the district court’s determination to abstain for abuse of discretion. Lipscomb

v. The Columbus Municipal Separate School District, 145 F.3d 238, 242 (5th Cir. 1998).




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                                                  III.

                                    BURFORD ABSTENTION

       The only remaining claims in this matter are: (1) alleged constitutional violations

pertaining to the City’s attempted enforcement of the Comprehensive Zoning Ordinance and the

citation of Keorner for failing to have the requisite occupational law licence; and (2) the City’s

defenses to those claims. The allegations made by Koerner depend on whether he has obtained a

non-conforming use of 1204 Jackson, which is the issue presented in the parallel state proceeding.

       Federal courts have a duty to exercise the jurisdiction conferred upon them by Congress

and abstention is the exception not the rule. Wilson v. Valley Electric Membership Corp., 8 F.3d

311 (5th Cir. 1993). However, a number of abstention doctrines have been recognized by the

Supreme Court, including the doctrine recognized in Burford v. Sun Oil Company, 319 U.S. 315,

63 S.Ct. 1098, 87 L.Ed.2d 1424 (1943).

       In applying Burford abstention, the court does not necessarily consider whether the cause

of action is based on state or federal law, but instead looks at whether the plaintiff’s claim is

entangled in an area of state law that must be untangled before the federal case can proceed.

Sierra Club v. City of San Antonio, 112 F.3d 789, 795 (5th Cir. 1997). Where timely and

adequate state-court review is available, a federal court sitting in equity must decline to interfere

with the proceedings or orders of state administrative agencies: (1) when there are difficult

questions of state law bearing on policy problems of substantial import whose importance

transcends the result in the case at bar; or (2) where the exercise of federal review of the

questions in a case and in similar cases would be disruptive of state efforts to establish a coherent

policy with respect to a mater of substantial public concern. St. Paul Ins. Co. v. Trejo, 39 F.3d


                                                  -6-
585, 588 (5th Cir. 1994).

        Five factors have been identified to consider in making this determination: (1) whether the

cause of action arises under state or federal law; (2) whether the case requires inquiry into

unsettled issues of state law or into local facts; (3) the importance of the state interest involved;

(4) the state’s need for a coherent policy in the area; and (5) the presence of a special state forum

for judicial review. Wilson, 8 F.3d at 314. These factors support the trial court’s determination

to abstain in the current matter pending resolution of the parallel state proceeding.

        Even though Koerner has framed his claims as arising under federal law, the underlying

issues presented are purely state law issues. Koerner has alleged that the City’s enforcement of

the Comprehensive Zoning Ordinance and the Occupational Licencing law was wrongful. He has

not alleged that these statutes are defective, only that their application to him is unconstitutional.

Whether Koerner has established a non-conforming use of his property is purely a state law issue

which should be decided in accordance with the adjudicatory process established to address

zoning issues. The same is true of whether he has obtained an occupational license.

        Further, the second, third, and fourth factors recognized by Wilson also favor abstention.

Courts have recognized local land use and zoning as areas where local interest and coherent

policy are necessary. Pomponio v. Fauquier County Bd. of Supervisors, 21 F.3d 1319, 1327 (4th

Cir. 1994), cert. denied, 115 S.Ct. 192. The court in Pomponio stated that 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. Id.

        Finally, the fifth Wilson factor is present in this case. The City of New Orleans, the Board

of Zoning Adjustment, and the Louisiana state courts have provided Koerner a forum for his


                                                  -7-
grievances. The City determined in 1997 that Koerner had not achieved a nonconforming

commercial use of his property. Thereafter, Koerner appealed that determination to the Board of

Zoning Adjustment, which affirmed the decision. Koerner then appealed that determination to the

Civil District Court for the Parish of Orleans and the Louisiana Fourth Circuit Court of Appeals.

The denial of his non-conforming use was upheld.

       The GDA Enforcement Action, the parallel state proceeding, is an action to enforce the

determination already made by the BZA, and the Louisiana state courts. Koerner is now seeking

to have the federal courts once again determine whether he has obtained a non-conforming use of

his property. The trial court properly rejected this attempt by abstaining to inject the federal

courts into such local issues.

                                                 IV.

                                 THE TRIAL COURT’S ORDER

       Koerner argues that the trial court’s order staying this matter was deficient because it did

not contain an analysis of the Burford abstention doctrine. However, the order adopted the

reasoning set forth by the GDA in its motion to stay by stating that it had received that motion

and was granting it, finding that the issues presented in the state court proceeding were

intertwined with the issues presented in this matter. The motion to stay was based solely on

Burford abstention. Considering the facts of the case and the contents of motion to stay, the trial

court’s order was sufficient.



                                                  V.

                                          CONCLUSION


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For the foregoing reasons, we affirm the district court’s decision.




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