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Appeal is premature where actions are pending in state court

Virginia Lawyers Weekly//January 6, 2021

Appeal is premature where actions are pending in state court

Virginia Lawyers Weekly//January 6, 2021

Where there are two pending actions in state court involving parking permissions and easements, the resolution of which could impact the federal court suit against the City of Charlotte, the appeal alleging due process violations was dismissed as premature.


Ballantyne Village Parking LLC alleges that, while it was attempting to resolve a dispute with ASVRF SP Ballantyne Village JV LLC over parking spaces/an easement, the City of Charlotte was having discussions with ASVRF without including Ballantyne. Troubled by its exclusion from the permitting process, appellant filed suit against the City.

In addition to its easement dispute and the instant federal case, appellant initiated a direct appeal of appellee’s permitting decision through Charlotte’s administrative processes. Appellant’s zoning appeal was set to be heard on Jan. 29, 2019, but the zoning board of appeals, or ZBA, stayed its proceedings in response to appellant’s filing of its federal suit.

The City asserted that the district court should decline to exercise jurisdiction because the local zoning issues involved in the case implicate the abstention doctrine recognized in Burford v. Sun Oil Co., 319 U.S. 315 (1943). The district court agreed with appellee and decided to abstain.


Appellant is embroiled in three separate, ongoing disputes: (1) the easement dispute which is yet to be confirmed in state court; (2) this federal lawsuit alleging due process violations and (3) the permitting dispute on appeal to the ZBA, which is currently stayed as a result of this federal lawsuit. Because the outcomes of the other two disputes have as-yet unrealized implications for the federal suit, this court concludes that it lacks subject matter jurisdiction over this appeal.

First, a legal determination that the easement entitles ASVRF to the contested parking spaces is bound to affect the viability of appellant’s constitutional claims at issue here — that is, appellant’s claimed right of access to the permitting process hinges on the existence of a legal interest in the disputed 83 spaces.

If the easement decision is that ASVRF instead rightfully could claim those parking spaces, appellant will have been adjudged to lack the property interest it claims was harmed by appellee’s actions. Therefore, without knowing whether appellant did in fact possess a right to the contested parking spaces, the court is being asked to answer the hypothetical question of whether there was a due process violation if in fact appellant had a right to the spaces it claims. The arbitration’s outcome with regard to the claimed easement — which has yet to be confirmed in state court, and which could be contested therein — threatens to substantially undermine appellant’s claimed property interest and therefore its claimed right of access to the permitting process purportedly affecting that interest.

Moreover, appellant appealed the building permit to the ZBA, and that appeal and any further appeal therefrom could result in modification or revocation of the permit. Appellant’s claimed injury is that the building permit appellee issued “completely devalued [Appellant’s] parking deck.”

But the building permit as it exists now is already conditional because appellee reserved the right to revoke the permit if it determines ASVRF lacks the requisite number of parking spaces. And appellant itself argues that the permit could (and should) be revoked through the ZBA appeal as being inconsistent with appellee’s zoning requirements and procedures.

Although the court does not ignore the fact that appellant claims past injury from the issuance of the existing permit and that this injury would not be negated should the permit be revoked, it cannot move forward on this aspect of appellant’s case while the status of the injury-causing permit is still debated. This is precisely the kind of “premature adjudication” the Supreme Court’s ripeness decisions counsel is to avoid.

Finally, the court fails to see how delay of this decision places appellant in the kind of “direct and immediate” dilemma that motivates this aspect of the ripeness inquiry. If appellee violated appellant’s right to due process in excluding it from predecisional permitting discussions, the court will still be able to evaluate that alleged injury once the uncertainties in this case have been resolved.


Ballantyne Village Parking LLC v. City of Charlotte, Appeal No. 19-1213, June 17, 2020. 4th Cir. (per curiam), from WDNC at Charlotte (Mullen). William Robert Terpening for Appellant. Thomas Edward Powers III for Appellee. VLW 020-2-161. 11 pp.

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