PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRONT ROYAL AND WARREN COUNTY

INDUSTRIAL PARK CORPORATION, a

Virginia Corporation,

Plaintiff-Appellee,

v.

TOWN OF FRONT ROYAL, VIRGINIA, a

Municipal Corporation; JOHN

MARLOW, Individually and as former

Mayor of the Town of Front Royal,

Virginia; MICHAEL KITTS,

Individually and as a member of the

Town Council of the Town of Front

Royal, Virginia; EDWIN L. POMEROY,

Individually and as a former

No. 96-1614

member of the Town Council of the

Town of Front Royal, Virginia;

ALBERT G. RUFF, JR., Individually

and as a former member of the

Town Council of the Town of Front

Royal, Virginia; GEORGE E. BANKS,

Individually and as a former

member of the Town Council of the

Town of Front Royal, Virginia;

BRACKENRIDGE H. BENTLEY,

Individually and as former Town

Manager of the Town of Front

Royal, Virginia,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

James H. Michael, Jr., Senior District Judge.

(CA-87-19-H)
Argued: October 31, 1996

Decided: January 23, 1998

Before RUSSELL, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Ervin wrote the

opinion, in which Judge Russell joined. Judge Wilkins wrote an opinion concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Glenn M. Hodge, WHARTON, ALDHIZER & WEAVER, P.L.C., Harrisonburg, Virginia, for Appellants. Robert Clayton

Fitzgerald, HAZEL & THOMAS, P.C., Falls Church, Virginia, for

Appellee. ON BRIEF: Mark D. Obenshain, WHARTON, ALDHIZER & WEAVER, P.L.C., Harrisonburg, Virginia, for Appellants.

Myron C. Smith, Fairfax, Virginia, for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Defendants-Appellants Town of Front Royal, Virginia (Town) and

various individuals currently or previously associated with the

Town's governance appeal from an order reinstating a prior summary

judgment order and awarding recalculated damages. That order was

made pursuant to the district court's exercise of jurisdiction following

state court proceedings after we ordered abstention according to the

doctrine promulgated in Burford v. Sun Oil Co. , 319 U.S. 315 (1943).

The case initially arose from Plaintiff-Appellee Front Royal and Warren County Industrial Park Corporation's (IPC) 42 U.S.C. § 1983

action claiming an unconstitutional taking and violations of substantive due process and equal protection, predicated upon the appellants'

 2
failure to construct sewer lines to IPC's lots as mandated by the 1978

Virginia Annexation Court. We reverse.

I.

We are very familiar with the factual background underlying this

action and will not recite it in full yet again. Suffice it to say, IPC

owns 86 acres of land, purchased in 1973 and 1974, that were

annexed by the Town in 1978 pursuant to the order of a Virginia

Annexation Court. That order also directed the Town to provide

sewer service to IPC's lots by December 31, 1983, later extended two

years, which the Town failed to do. After various legal wranglings,

IPC filed the instant case in federal district court on February 12,

1987, alleging that the failure to provide sewer service violated its

rights under the Fifth and Fourteenth Amendments.

The last time IPC was before us, we vacated, on the basis of

Burford abstention, the district court's orders granting summary judgment and damages to IPC.1 Front Royal and Warren County Indus.

Park Corp. v. Town of Front Royal, 945 F.2d 760 (4th Cir. 1991)

(hereinafter Front Royal V), cert. denied, 503 U.S. 937 (1992).2 We

instructed the district court to retain jurisdiction pending the outcome

of state court proceedings. In particular, we envisioned that IPC

should seek whatever remedy was appropriate under Virginia's

Annexation Court scheme as well as whatever other state remedies

might be available, suggesting a common law cause of action to vindicate the due process rights afforded under the Virginia Constitution,

Art. I, § 11 to those who have been unlawfully deprived of their property. Id. at 764-65.

_________________________________________________________________

1 IPC's case was consolidated with a companion case filed the same

day by Fred and Gladys McLaughlin, McLaughlin v. Town of Front

Royal, No. CA-87-00020 (W.D. Va. filed Feb. 12, 1987), individual

owners of property annexed by the Town but similarly not provided with

sewer service. Fred McLaughlin was the sole shareholder of IPC.

2 Although we previously labeled the various decisions in this lengthy

litigation differently, to avoid further confusion we adopt the district

court's nomenclature in denominating our most recent decision Front

Royal V and continue the numbering from there.

 3
IPC subsequently requested both the Town and the County of Warren to reconvene the Annexation Court, and, when that apparently

failed, it sought relief in the state court system. The Circuit Court of

Warren County did grant a writ of mandamus to compel the Town to

extend sewer lines to each of IPC's lots, but it refused to award damages under state law. See Front Royal and Warren County Indus.

Park Corp. v. Town of Front Royal, No. 92-121, slip op. at 14 (Warren County, Va., Cir. Ct. Apr. 14, 1993); Front Royal and Warren

County Indus. Park Corp. v. Town of Front Royal, No. 92-121 (Warren County, Va., Cir. Ct. June 30, 1993) (letter ruling). The Supreme

Court of Virginia affirmed the grant of mandamus, see Town of Front

Royal v. Front Royal and Warren County Indus. Park Corp., 449 S.E.

794 (Va. 1994) (Front Royal VI), but it refused to accept appeal on

the question of damages, see Front Royal and Warren County Indus.

Park Corp. v. Town of Front Royal, No. 931649 (Va. Mar. 4, 1994).

IPC thereafter moved the district court to reinstate its prior judgment and amend the previous award of damages and attorney's fees.

In a published opinion, see 922 F. Supp. 1131 (W.D. Va. 1996)

(Front Royal VII), the district court granted IPC's motion and, following the completion of the sewer lines by the Town, now awards IPC

damages of $359,441.47 and attorney's fees of $105,317.19.

This appeal naturally followed, and thus the opportunity for Front

Royal VIII.

II.

IPC originally filed this action pursuant to 42 U.S.C. § 1983. Federal court jurisdiction to hear § 1983 cases exists under the general

federal question jurisdiction statute, 28 U.S.C.§ 1331. This appeal

arises from a final order below, and we nominally possess appellate

jurisdiction under 28 U.S.C. § 1291.

Normally, that would end our jurisdictional inquiry, but this is far

from a normal case. Because we previously ordered Burford abstention, but directed the district court to retain federal jurisdiction, we

believe it is necessary to address whether federal jurisdiction remains

given the events and court dispositions that have transpired in the

interim.

 4
A.

As we recognized in Front Royal V, "[a]t the heart of the case

before us is the question whether Front Royal ever complied with the

orders of the Annexation Courts. The answer requires interpretation

of the Annexation Courts' orders, which is a determination that the

Annexation Court was uniquely qualified to make." Front Royal V,

945 F.2d at 764. We suggested that, although ten years had run, perhaps the 1978 Annexation Court could be reconvened under the special circumstances of this case. Id. at 764 n.*. The statute granting an

Annexation Court a ten-year existence by its own terms permits the

court to be

reconvened at any time during the ten-year period on its

own motion, or on motion of the governing body of the

county, or of the city or town, or on petition of not less than

fifty registered voters or property owners in the area

annexed; provided, however, if the area annexed contains

less than 100 registered voters or property owners, then a

majority of such registered voters or property owners may

petition for the reconvening of the court.

Va. Code Ann. § 15.1-1047(b). By itself, then, IPC could have no

standing to cause the Annexation Court to reconvene.

We decided Front Royal V on September 19, 1991. The very next

day, a notice pursuant to Virginia Code § 8.01-335 was sent to the

parties' counsel from the clerk of the Warren County Circuit Court

that the matter of the annexation would be stricken from the court's

docket on October 21, 1991. See J.A. at 899. The notice provided for

an objection, which had to be returned five days prior to October 7.

IPC's counsel did not sign the objection until December 11, 1991.

A few days before that, on December 6, 1991, IPC did request both

the Town and the County of Warren to reconvene the Annexation

Court, see J.A. at 896-98; neither acted on the request. Shortly thereafter, on January 21, 1992, Judge Wetsel of the Circuit Court of Warren County determined that the Annexation Court ceased to exist for

lack of activity in the matter and removed the case from the docket.

See J.A. at 900.

 5
We think this unexplained delay of IPC's counsel in seeking to

reconvene the Annexation Court raises a real question as to whether

IPC zealously sought to vindicate its state remedies in accordance

with our directive in Front Royal V. IPC would no doubt argue that

even had the Annexation Court been reconvened, it was powerless to

award IPC damages for appellants' refusal to comply with its order.

See Br. of Appellee at 15. A reconvened annexation court is limited

to enforcing the terms and conditions of its original decree, and it may

not reconsider or rehear its prior orders. City of Portsmouth v. City of

Chesapeake, 136 S.E.2d 817, 826 (Va. 1964). This view of the limited nature of the reconvened annexation court was reconfirmed ultimately by the Virginia Supreme Court in Front Royal VI, 449 S.E.2d

at 797.

Notwithstanding this dissolution of the Annexation Court, however, IPC's failure to pursue a remedy there may be more fundamental than may at first appear. A sister statute expressly provides:

Notwithstanding the provisions of § 15.1-1047, in the event

a decision granting any motion or petition for annexation is

subjected to collateral attack in any court, state or federal,

the court created by § 15.1-1038 shall not be dissolved; or,

if heretofore or hereafter dissolved at the time such attack

is made or is pending, shall be revived. The court shall

thereafter continue in existence until such time as all collateral issues have been resolved, and until one year thereafter,

and shall have the same powers and duties as set out in

§ 15.1-1047. In addition, it shall have the power to fully

implement any order or decision of any court of competent

jurisdiction with respect to such collateral attack. 

Va. Code Ann. § 15.1-1047.2 (emphasis added). This provision has

apparently not been interpreted by any court in a published disposition. To the extent that the 1978 Annexation Court conditioned the

annexation on the Town providing sewer lines to IPC's lots, this

entire litigation may be seen as a collateral attack on that annexation

order. That Annexation Court may thus be revived. No procedures are

spelled out for its revival, but given that it will possess greater powers

than a merely reconvened court where there has not been a collateral

attack, revival might not be limited only to those methods of recon-

 6
vening laid out in § 15.1-1047. How extensive these greater powers

are is also unclear since they have never been interpreted by a court

heretofore. The point, however, is that IPC, directed to pursue state

remedies, failed to even test this provision.

B.

Although it remains unclear to what extent IPC's alleged injuries

may have been remedied by recourse to the Annexation Court, it is

still necessary to examine IPC's pursuit of other state remedies. Pursuant to Virginia Code § 15.1-1048, IPC sought a writ of mandamus

to compel the Town to build the sewer lines and combined with it a

prayer for damages. In an opinion of October 23, 1992, Judge Wetsel

of the Circuit Court of Warren County concluded as a matter of law

that IPC could proceed on both grounds and noted that monetary

relief may be available through a declaratory judgment action, a constitutional takings action, a common law damage action to enforce the

due process rights of the state constitution, and/or an inverse condemnation action. Front Royal and Warren County Indus. Park Corp. v.

Town of Front Royal, No. 92-121, slip op. at 10-11 (Warren County,

Va., Cir. Ct. Oct. 23, 1992).

Judge Wetsel subsequently granted IPC the writ of mandamus on

April 14, 1993, but stayed its issuance on May 10 and ordered IPC

to

file a Bill of Particulars setting forth the specific facts upon

which it bases its claim for damages against the Town,

which Bill of Particulars shall also be accompanied by written memorandum of authorities setting forth the specific

right of action upon which the Petitioner seeks the recovery

of damages from the Town, which memorandum of authorities shall set forth the prima facie elements of that right of

action.

J.A. at 1094. IPC, in the Bill of Particulars, did seek damages "under

the common law" as well as pursuant to 42 U.S.C.§ 1983. See J.A.

at 1019-20. However, in its memorandum, IPC only discussed with

regard to its common law claim whether such damages are precluded

by seeking mandamus, see J.A. at 1023-26, a point on which the cir-

 7
cuit court had already permitted IPC to proceed. Despite the state

court's suggestions of statutory and case law avenues on which IPC

might recover monetary relief, IPC simply failed to address them, nor

did it "set forth the prima facie elements" of its common law right of

action as it was directed to do. IPC even argued under its federal takings claim that it could not win an inverse condemnation claim under

existing state law. See J.A. at 1026-27.

It is thus hardly surprising, then, that in a letter ruling of June 30,

1993, Judge Wetsel denied IPC's claim for damages under state law.

In particular, he ruled that IPC could not recover damages on three

different bases: (1) because there is no constitutional right to sewer

service, its denial is the failure to confer a benefit, and thus there is

no taking of IPC's property as contemplated by the Virginia Declaratory Judgment Act, the predicate for a right of action under Va. Code

§ 8.01-187; (2) because IPC was not denied use of its land or the right

to sell it, there could be no unconstitutional taking, and "[n]o inverse

condemnation action will lie in Virginia where the acts complained

of are to confer a benefit upon the property"; and (3) because "no statutory authority exists under the general mandamus statute which will

permit the plaintiffs to recover damages merely for the violation of

the ministerial act giving rise to the mandamus action," any such

damage claim must have an independent basis in law, which is apparently lacking in this case. Front Royal and Warren County Indus.

Park Corp. v. Town of Front Royal, No. 92-121, slip op. at 1-4 (Warren County, Va., Cir. Ct. June 30, 1993) (letter ruling). Despite IPC's

failure to adequately argue the basis of its damage claim, the state

court did consider, and reject, three of the four avenues that it had

suggested IPC pursue eight months before. The one remaining avenue

not explicitly rejected is the common law damage action to enforce

the due process rights of Article I, section 11 of the Virginia Constitution which is precisely the remedy we recommended to IPC in Front

Royal V, 945 F.2d at 765. However, this argument was implicitly

rejected in (2) above where the court found there could be no unconstitutional taking on these facts. Moreover, Judge Wetsel was well

aware that mandamus, which he had granted, would not lie unless

"there is no other available specific and adequate remedy." Front

Royal and Warren County Indus. Park Corp. v. Town of Front Royal,

No. 92-121, slip op. at 9 (Warren County, Va., Cir. Ct. Oct. 23, 1992)

 8
(quoting Richmond, F. & P. R.R. Co. v. Fugate , 142 S.E.2d 546 (Va.

1965) (internal quotation marks omitted)).

As mentioned above, the Virginia Supreme Court heard appeal in

Front Royal VI only on the issue of mandamus. It refused to grant

appeal on IPC's damage claim, finding "no reversible error in the

judgment complained of," Front Royal and Warren County Indus.

Park Corp. v. Town of Front Royal, No. 931649 (Va. Mar. 4, 1994),

and it also denied a petition for rehearing of that refusal. See J.A. at

1070. IPC did argue in its petition for rehearing, but to no avail, that

Judge Wetsel applied City of Virginia Beach v. Virginia Land Inv.

Ass'n No. 1, 389 S.E.2d 312 (Va. 1990), which stands for the proposition that, to constitute a taking, the owner must be"deprived of all

economically viable uses of its property," id. at 314 (emphasis added),

in a manner contrary to that in Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992). See J.A. at 1265-68. Therefore, the

state circuit court decision denying IPC's state law damage claim is

the law of the case. With regards to the nature of the mandamus remedy, the Virginia Supreme Court reiterated (twice) that the writ will

issue only where "there is no adequate remedy at law," and, additionally, "where there is no other available specific and adequate

remedy." Front Royal VI, 449 S.E.2d at 796 (internal quotation marks

and citations omitted) (emphasis in original). This restatement of the

law on mandamus, together with the refusal to hear the damages

issue, must be taken by us as a firm statement by Virginia's highest

court, in the posture with which that court was presented the matter,

that IPC possessed no other state law remedy.

It is with this failure to succeed on its state law damage claim that

IPC returned to federal district court to seek to have that court's prior

judgment reinstated. The district court found that IPC's § 1983 action

as predicated on a takings claim was now procedurally ripe, given that

IPC had unsuccessfully utilized the state law procedures to seek monetary relief for the alleged taking, which is all that is required by

Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473

U.S. 172, 195 (1985). Front Royal VII, 922 F. Supp. at 1143-45. More

particularly, the district court rejected appellants' contention that IPC

had ignored its duty to pursue the state remedies. The court understood the Virginia Supreme Court's denial of IPC's petition to reconsider its takings jurisprudence as a reaffirmation of that jurisprudence

 9
and thus believed that it would have been no more than a "futile and

idle exercise" to require IPC "to argue a premise of law which the

highest court of a jurisdiction has explicitly and unequivocally

rejected." Id. at 1144 n.20 (citing Kinzli v. City of Santa Cruz, 818

F.2d 1449 (9th Cir.), amended by 830 F.2d 968 (9th Cir. 1987), cert.

denied, 484 U.S. 1043 (1988)).

On the other hand, it certainly seems that some weight should be

given to appellants' argument that IPC initially failed to properly

claim or plead entitlement to relief under any potentially available

state remedy. See Reply Br. of Appellants at 2. IPC simply did not

follow the order of the state circuit court to present to that court the

prima facie elements of its rights of action, nor did IPC even discuss

the approaches for relief that that court had suggested to it. Appellants

argue that, as a result of this failure, the order denying IPC's state law

damage claim must be considered void. Id. (citing Patterson v.

Anderson, 74 S.E.2d 195, 203 (Va.) ("A decree cannot be entered in

the absence of pleadings upon which to found the same, and, if so

entered, it is void." (internal quotation marks and citations omitted)),

cert. denied, 345 U.S. 965 (1953). Patterson 's rule, however, applies

where a judgment grants the relief sought in a defective pleading, not

where the judgment denies the relief sought in the defective pleading.

Nevertheless, it strikes us as quite odd and improper that IPC

should benefit, either surreptitiously or through bad lawyering, from

its failure to vigorously pursue state remedies, in dereliction of the

duty imposed by us, when all the while it knew there was a federal

district court sympathetic to its claims. In addition, IPC's failure to

test the powers of the revivable Annexation Court under Virginia

Code § 15.1-1047.2 just doesn't sit well with us. In a previous case

of Pullman abstention, we refused to allow appellants to return to federal court where they had failed to timely perfect an appeal to the Virginia Supreme Court, since to do so "would only encourage sloppy

lawyering and disrespect for state procedure." National Capital

Naturists, Inc. v. Board of Supervisors, 878 F.2d 128, 132 (4th Cir.

1989); cf. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 16 n.16 (1987)

(stating that "Texaco cannot escape Younger abstention by failing to

assert its state remedies in a timely manner"). Here the affront is more

egregious, for IPC only perfunctorily performed its duty to return to

state court, thereby not only abusing the integrity of state law and pro-

 10
cedure by failing to fully advocate its position, but also flouting our

very purpose in ordering abstention in the first place. While it may be

true now that IPC's state law damage claim amounts to a "futile and

idle exercise," such was not the case when we abstained. We find that

IPC was obliged to make a good faith effort to seek just compensation

under state law. Failing to pursue a statutory avenue open to it and

failing to follow a state court's order to present the prima facie elements of its rights of action do not a good faith effort make.

C.

Subsequent to our decision in Front Royal V, we held that normally

in cases of Burford abstention the appropriate course is for the district

court to dismiss the action altogether instead of retaining jurisdiction

pending the state court proceedings. See Pomponio v. Fauquier

County Bd. of Supervisors, 21 F.3d 1319, 1328 (4th Cir.) (en banc),

cert. denied, 513 U.S. 870 (1994). In the unusual circumstances of

this case, however, we instructed the district court to retain jurisdiction. In light of our decision in Pomponio and IPC's behavior in pursuing its state law damage claim, it would appear that IPC would

deserve to have its case dismissed after all.

Since our decision in Pomponio, however, the Supreme Court has

declared that dismissal, based on abstention principles, is appropriate

only where the relief sought is equitable or otherwise discretionary.

In damages actions, a federal court cannot dismiss the action but can

enter a stay to await the conclusion of state proceedings. See

Quackenbush v. Allstate Ins. Co., 135 L. Ed. 2d 1, 22 (1996).

Quackenbush dealt with an action that sought neither equitable nor

other discretionary relief that was dismissed under the Burford

abstention doctrine. Although the Court did not so hold, it left open

the possibility that "Burford might support a federal court's decision

to postpone adjudication of a damages action pending the resolution

by the state courts of a disputed question of state law." Id. Although

not squarely before us, we note that Quackenbush appears to have

implicitly overruled our holding on this issue in Pomponio, a damages

action. At the same time, it appears that our earlier decision in this

case in Front Royal V, viz. the instruction to the district court to retain

federal jurisdiction, remains supportable under current abstention

jurisprudence.

 11
Because not before the Court, Quackenbush provides no guidance

on appropriate federal court action when litigants who have been sent

to state court pursuant to Burford return to the federal forum following the state court resolution of the state law questions. In cases of

Pullman-type abstention, see Railroad Comm'n v. Pullman Co., 312

U.S. 496 (1941), litigants are not necessarily permitted to return to

federal court, despite the stay order, if in state court they in fact litigated their federal claims and did not instead make an England reservation of their right to have a federal court disposition of the federal

issues, see England v. Louisiana State Bd. of Medical Examiners, 375

U.S. 411, 419-22 (1964). See, e.g., Promovision Int'l Films, Ltd. v.

Trapani, 744 F.2d 1063, 1064-65 & 1064 n.1 (4th Cir. 1984). Presumably, similar requirements are appropriate for return to federal

court after Burford abstention.

Much more uncertain would be the intersection between an

England-type reservation in the Burford abstention context and the

ripeness requirement under Williamson County Reg'l Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), for the existence of

federal court subject matter jurisdiction for a claim predicated on the

Takings Clause. In Williamson County, the Supreme Court held that

a would-be § 1983 litigant's takings claim is not procedurally ripe

until state avenues of compensation have been exhausted. Id. at 194-

95 & 194 n.13. Williamson County would thus seem to presuppose

that a would-be Takings Clause claimant would proceed first in state

court and thus could never find itself, as IPC does here, in a situation

in which it in fact went first to federal court and was from thence

directed to state court, via Burford abstention. Nevertheless,

Williamson County does not require that the federal takings claim

actually be litigated in state court. Although we have not had much

occasion to consider Williamson County's ripeness requirement, but

see Naegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d

172, 174-75 (4th Cir. 1988), the Eleventh Circuit has determined, in

a cogent analysis, that an England-type reservation may be made of

a federal takings claim when a litigant proceeds first in state court

pursuant to Williamson County. See Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1303-07 (11th Cir. 1992). Should such an

unusual posture as supposed here ever arise in the future, it would

thus be meet for the district court to advise the parties that they may

 12
wish to make an England-type reservation of their right to return to

federal court, if need be, when they first appear in state court.

In our prior decisions in this litigation we never reached the merits

of IPC's takings claim and thus never considered the preliminary

question of whether that claim was ripe under Williamson County.

Although we do not believe that IPC sought zealously to seek just

compensation in the state court system, it appears now that its state

remedies for just compensation have been exhausted, as the district

court determined. As noted above, despite IPC's failure to follow the

state circuit court's order to brief it on its rights of action for damages,

the state circuit court did, in fact, consider--and reject--either

expressly or implicitly each of IPC's possible rights of action for

damages, and the Virginia Supreme Court refused to hear appeal on

IPC's damage claim. We therefore see no clear basis under

Williamson County to determine that IPC's takings claim is other than

finally ripe for adjudication in a federal forum. 3

Furthermore, ultimately, and unfortunately, we find we must agree

with the district court that continued abstention at this point would be

inappropriate. See Front Royal VII, 922 F. Supp. at 1138. Although

IPC did attempt to litigate its federal claims in state court, which, had

it succeeded at its attempt, would have barred its return to federal

court under the principles of res judicata, the state circuit court

expressly refused to entertain IPC's federal claims as a matter of comity.4

_________________________________________________________________

3 Absent is a similar concern with whether IPC's Fourteenth Amendment due process and equal protection claims are ripe. State remedies

need not be exhausted in order to pursue a § 1983 action claiming a violation of these federal rights. See Patsy v. Board of Regents, 457 U.S.

496 (1982).

4 We note that IPC failed to make an express England-type reservation

of its right to return to federal court. However, although IPC did, then,

present its federal claims to the state court for disposition, those claims

were not "fully litigated," as England requires, see England, 375 U.S. at

421-22, since the state circuit court refused to address them. In a case

with a similarly odd procedural posture, the Third Circuit allowed the

plaintiff to return to federal court following a Pullman-type abstention,

which the court determined should actually have been abstention through

Younger v. Harris, 401 U.S. 37 (1971). See Ivy Club v. Edwards, 943

 13
See Front Royal and Warren County Indus. Park Corp. v. Town of

Front Royal, No. 92-121, slip op. at 3-4 (Warren County, Va., Cir. Ct.

June 30, 1993) (letter ruling). This case has already passed through

procedural purgatory and wended its way to procedural hell. Because

we believe it would be fruitless and a waste of further judicial

resources at this point to send IPC back again to state court to try its

hand at a revived Annexation Court pursuant to Virginia Code § 15.1-

1047.2, which is the only avenue open now since the other state law

remedies have been foreclosed by the law of the case, an effective

dismissal-via-abstention now would deprive IPC of its right to a federal forum. We take seriously our strict duty to exercise the jurisdiction that has been conferred upon us. See Quackenbush, 135 L. Ed.

2d at 12 (acknowledging that "federal courts have a strict duty to

exercise the jurisdiction conferred upon them by Congress"); see also

Colorado River Water Conservation Dist. v. United States, 424 U.S.

800, 821 (1976) (stating that "federal courts have a virtually unflagging obligation . . . to exercise the jurisdiction given them"); Willcox

v. Consolidated Gas Co., 212 U.S. 19, 40 (1909) ("When a Federal

court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction."). We emphatically

state, however, that we do not condone IPC's failure to follow our

mandate and that we exercise our jurisdiction in this instance only

because the state circuit court expressly refused to reach the federal

claims out of deference for the principles of comity and federalism.

Cf. England, 375 U.S. at 421-22 (holding that a"litigant is in no event

to be denied his return to the District Court unless it clearly appears

that he voluntarily . . . fully litigated his federal claims in the state

courts" (emphasis added)).

_________________________________________________________________

F.2d 270 (3d Cir. 1991), cert. denied sub nom. Del Tufo v. Ivy Club, 503

U.S. 914 (1992). There the plaintiff had initially litigated its federal constitutional claims in state administrative proceedings, but after the district

court abstained and upon return to state court, an express England reservation was made. In weighing the equities, the court was in part persuaded that, although the state courts had not explicitly acknowledged

the plaintiff's England reservation, the state courts had not decided the

federal constitutional claims. See id. at 281. We can see no warrant for

finding a voluntary waiver of England-type rights where, although a reservation was not expressly made, the state court expressly refuses to

reach the federal claims presented to it out of concerns for comity.

 14
There appear to be no cases in which a Court of Appeals has

denied a litigant the right to return to federal court where federal

claims remained after a Burford abstention, nor any in which the litigant was denied the federal forum following any type of abstention

where the litigant only half-heartedly complied with the mandate to

pursue state law remedies. In other words, there is no doctrine of

waiver immanent in the retention of federal jurisdiction, and we

decline, even on these facts, to create one here. Moreover, our previous concerns that federal court involvement in Virginia's land-use

regulation scheme could disrupt the development of coherent state

policy in this arena have been rendered moot by the various intervening events and court dispositions. Thus, despite IPC's lack of good

faith in fully advocating its claims in state court and as much as we

may like to dismiss its case as a result, we determine that the district

court below properly reached the merits, and so now must we.

III.

We review de novo the district court's order granting summary

judgment to IPC. See E.J. Sebastian Assocs. v. Resolution Trust

Corp., 43 F.3d 106, 108 (4th Cir. 1994). We apply the same standards

as the district court, i.e. summary judgment is appropriate where there

is no genuine dispute as to a material fact. See Miller v. FDIC, 906

F.2d 972, 973-74 (4th Cir. 1990); Fed. R. Civ. P. 56(c).

We review the district court's findings of fact for clear error. See

Waters v. Gaston County, N.C., 57 F.3d 422, 425 (4th Cir. 1995);

Fed. R. Civ. P. 52(a). "A finding is clearly erroneous when, although

there is evidence to support it, on the entire evidence the reviewing

court is left with the definite and firm conviction that a mistake has

been committed." Faulconer v. Commissioner , 748 F.2d 890, 895 (4th

Cir. 1984).

IV.

The district court granted IPC's motion for summary judgment on

its takings, substantive due process, and equal protection claims.

Although the district court's legal analysis was thorough and generally sound, we find in our de novo review, in each case, either that

 15
the district court's analysis stopped short or that we cannot agree with

the lower court's application of the law to the facts here.

Given our disposition of this case, we do not address the issue of

the qualified immunity of the individual government officials.

Although we have cited approvingly the proposition advanced by the

lower court--that an official acting ultra vires may not claim qualified immunity, see In re Allen, 106 F.3d 582, 590 (4th Cir. 1997) (citing, inter alia, Front Royal VII, 922 F. Supp. at 1142)--we will not

pass on whether in the case sub judice that proposition was properly

applied. In any event, that issue has been rendered moot by the litigation history of this case. Although the individual officials still appear

in the caption as defendants-appellants, only the Town's liability

remains at stake. When IPC returned to state court, it sued only the

Town, not the individual officials. The state circuit court concluded

as a matter of law that the individuals were not parties to the suit,

which is now the law of the case. See Front Royal and Warren

County Indus. Park Corp. v. Town of Front Royal, No. 92-121, slip

op. at 11-12 (Warren County, Va., Cir. Ct. Oct. 23, 1992). IPC is thus

precluded from seeking to attach liability to these individuals now.

Although IPC's first amended complaint was ambiguous as to the

nature of its due process claim, the district court interpreted the complaint as seeking relief under a substantive due process theory. We

agree and thus we will not consider IPC's claim on the basis of a procedural due process theory.

We turn now to address each of IPC's claims serially.

A.

In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992),

the Supreme Court noted that there exist at least two distinct categories of governmental regulatory action that may result in a taking for

which just compensation is due under the Fifth Amendment. First,

regulations that compel a physical invasion of an owner's property are

takings, no matter how slight the invasion or how weighty the public

interest advanced to support them. Id. at 1015. See, e.g., Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (holding

that cable facilities occupying only 1.5 cubic feet constituted a tak-

 16
ing). Second, regulations that deny "all economically beneficial or

productive use of land" are compensable takings. Lucas, 505 U.S. at

1015. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825

(1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.

470 (1987). Despite these categorizations, much remains uncertain

about takings jurisprudence, for the Court admitted that there is no

"set formula" for determining when a regulation goes "too far" and

becomes a compensable taking. Lucas, 505 U.S. at 1015. Although

the categories themselves provide guidance, the difficulty is determining on an ad hoc basis whether any particular regulation fits neatly,

or otherwise, into one of these two categories.

Surveying this jurisprudence from a different perspective, it is clear

that a taking exists where the owner of real property is forced to "sacrifice all economically beneficial uses . . ., that is, to leave his property economically idle." Lucas, 505 U.S. at 1019 (emphasis in

original). It is also clear that temporary, but total, regulatory takings

are compensable. See First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 321 (1987). It is unanswered

and much less clear, although arguable, that a partial regulatory taking

may be compensable. However, under this jurisprudence we can see

absolutely no warrant for the proposition that where the government

does not affirmatively prohibit the realization of investment-backed

expectations, but merely refuses to enhance the value of real property,

a compensable taking has occurred. We must seriously question the

nature of IPC's claimed property interest that has allegedly been

taken. This property interest is nothing but an inchoate interest in the

conferral of a benefit to enhance market value. To find it to be a compensable taking would open an incredible Pandora's Box. Even were

such an inchoate interest a stick in the bundle of property rights, it is

clearly not one of the classical property rights of possession, use, and

disposition. See Kaiser Aetna v. United States , 444 U.S. 164, 176

(1979) (speaking in terms of the "sticks in the bundle of rights that

are commonly characterized as property"); Loretto, 458 U.S. at 435

(describing property rights as "the rights to possess, use and dispose

of [a thing]" (internal quotation marks and citation omitted)).

The instant case is not like Lucas, where new zoning regulations

totally prevented the owner from building any habitable structure on

the beachfront lots, thereby denying his investment-backed expecta-

 17
tions. The district court's argument that alternative uses of the property, such as a residential subdivision, were "neither economically

realistic nor realistically available," Front Royal VII, 922 F. Supp. at

1149, is simply not probative.5 What IPC and the district court fail to

recognize is that the government did not do anything to deny IPC the

right to use its property for an industrial park. The Town had already

installed a pump on lot 14 and certain interceptor lines. All that

remained to do was to connect collector lines to thirteen of the sixteen

lots. Absolutely no government regulation prevented IPC from installing those lines itself. In fact, many developers do install their own

sewer lines. Admittedly, the Town was under an Annexation Court

order to install those lines, but nothing prevented IPC from doing so

and then suing the Town for recovery of those costs.

In any event, it is painfully obvious that the Town's failure to

install the sewer lines did not deprive IPC's land of all economic

value or even close to that. The district court determined that IPC's

basis in the property was $407,000 (comprised of the $107,000 purchase price plus the "approximately $300,000" spent in preparing the

land for use as an industrial park). See Front Royal VII, 922 F. Supp.

at 1134-35. The fair market value of IPC's land without sewer service

was $405,000. See id. at 1152. The math is simple. The outright diminution in value is less than one half of one percent. Even if the diminution be calculated from the fair market value of the land with the

sewer service provided, which the district court determined to be

$810,000, see id., the reduction is still only 50 percent. Not all regulatory deprivations amount to regulatory takings, and a regulatory

deprivation that causes land to have "less value" does not necessarily

make it "valueless."

Although not central to our determination, two additional aspects

touched upon in Lucas support our decision. In discussing the "property interest" against which the loss of value is to be measured, the

_________________________________________________________________

5 Moreover, the district court ignores the fact, as several Justices in

Lucas noted, that even where the only residual economic uses of land are

recreational, such as camping or picnicking, economic value still

remains. See Lucas, 505 U.S. at 1044 (Blackmun, J., dissenting); id. at

1065 n.3 (Stevens, J., dissenting). Cf. id. at 1026 n.13 (citing cases where

other uses remained).

 18
Court noted the unsettled distinction between a regulatory deprivation

of all economically beneficial use of the burdened portion of a tract

and a deprivation that results in the mere diminution in value of the

tract as a whole. Lucas, 505 U.S. at 1016 n.7. The Court suggested,

but did not decide, that the difficulties inhering in this distinction may

be resolved by "how the owner's reasonable expectations have been

shaped by the State's law of property--i.e., whether and to what

degree the State's law has accorded legal recognition and protection

to the particular interest in land with respect to which the takings

claimant alleges a diminution in (or elimination of) value." Id. In this

particular case, IPC had no reasonable expectation that Virginia's

property law would recognize, let alone protect, a property interest in

having sewer service provided by government. As the state circuit

court held under Virginia law, and as IPC even argued before it,

because there is "no constitutional right to sewer service," the Town's

"failure to confer a benefit on the property which [IPC] alleges would

substantially enhance the value of its property" cannot be a taking.

Front Royal and Warren County Indus. Park Corp. v. Town of Front

Royal, No. 92-121, slip op. at 2 (Warren County, Va., Cir. Ct. June

30, 1993); see also City of Virginia Beach v. Virginia Land Inv. Ass'n

No. 1, 389 S.E.2d 312, 314 (Va. 1990). IPC's property interest thus

falls on the side of the distinction, noted above, of those regulatory

deprivations that result in the mere diminution in value of the tract as

a whole and for which compensation is not due.

The Lucas Court also suggested that government could not sustain

a confiscatory regulation that denies all economically beneficial use,

without just compensation, unless the limitations effected by the regulation were already inherent in the title itself. Lucas, 505 U.S. at 1027,

1029. In other words, an owner cannot be prohibited a use, without

compensation, where her title did not already contain an "implied limitation" on that use. Analogizing to the instant case, when IPC purchased its land in 1973 and 1974 and acquired its title, before

annexation by the Town, it had no legitimate expectation that that

land came with the public provision of sewer service. Instead, inherent in that title was the implied limitation that the owner would have

to provide for its own water and sanitary waste disposal. This same

factual basis also supports the conclusion that IPC did not suffer the

defeat of its investment-backed expectations. When IPC purchased

the land in 1973 and 1974, that investment could not have been

 19
backed by the expectation that its land would be provided with public

sewer service.

It cannot be gainsaid that the Town's and its officials' behavior in

this matter has been less than honorable. Not only did they fail to provide the mandated sewer service until nearly ten years after the

Annexation Court-imposed deadline, but they affirmatively developed

their own industrial park across the road from IPC's property and provided it with sewer service. As unfortunate as the appellants' behavior

has been, however, it simply does not constitute a taking under federal constitutional law. This is precisely why, under the circumstances

of this case, we left it to the state court system to mete out the appropriate remedy for appellants' long-standing refusal to supply the

sewer lines. Despite the character of the governmental action in this

instance, the economic impact of the deprivation of the sewer service

has been relatively minimal, and certainly very far from total. Moreover, that deprivation has not affirmatively interfered with IPC's distinct investment-backed expectations. See Connolly v. Pension Benefit

Guar. Corp., 475 U.S. 211, 224-25 (1986) (identifying factors to be

assessed in determining, ad hoc, whether a regulation goes "too far"

and becomes a compensable taking). IPC's original investment could

not have contemplated the public provision of sewer service, and it

could have fulfilled its later expectations by providing its own sewer

lines. Because IPC's property interest is at best an inchoate interest

in the conferral of a benefit to enhance market value, and not like one

of the traditional sticks in the bundle of property rights, we will not

open the lid to Pandora's Box into a virtual terra incognito where we

cannot stand on something more like terra firma .

B.

The Town claims that the district court granted summary judgment

on a substantive due process claim essentially sua sponte. However,

IPC's first amended complaint does state that it has been denied its

property without due process of law in violation of the Fourteenth

Amendment. The district court interpreted this as a substantive due

process claim, and we cannot see how the Town has been prejudiced

by the lower court addressing it as such since the complaint fairly puts

the Town on notice.

 20
As we have noted, however, substantive due process is a substantially narrower concept than procedural due process, for it serves as

"an absolute check on certain governmental actions notwithstanding

the fairness of the procedures" used to implement those actions. Love

v. Pepersack, 47 F.3d 120, 122 (4th Cir.) (internal quotation marks

and citation omitted) (emphasis added), cert. denied, 116 S. Ct. 64

(1995). We have determined that this absolute check is warranted

only where no process could cure the deficiencies in the governmental action. See Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,

827 (4th Cir. 1995). In other words, governmental action offends substantive due process only where the resulting deprivation of life, liberty, or property is so unjust that no amount of fair procedure can

rectify it. See Love, 47 F.3d at 123. As we stated in Rucker v. Harford

County, Md., 946 F.2d 278, 281 (4th Cir. 1991), cert. denied, 502

U.S. 1097 (1992):

[T]he residual protections of "substantive due process" in

this (or any) context run only to state action so arbitrary or

irrational, so unjustified by any circumstance or governmental interest, as to be literally incapable of avoidance by any

pre-deprivation procedural protections or of adequate rectification by any post-deprivation remedies.

In Sylvia Development, we broke down a substantive due process

claim into three elements that a claimant must prove under this narrow conception when the property prong of the Fourteenth Amendment is implicated: (1) the claimant must establish possession of a

property interest, (2) state action must deprive the claimant of the

property interest, and (3) the state's action must fall "so far beyond

the outer limits of legitimate governmental action that no process

could cure the deficiency." Sylvia Dev., 48 F.3d at 827 (emphasis in

original). In Gardner v. City of Baltimore Mayor and City Council,

969 F.2d 63, 68 (4th Cir. 1992), we permitted the Supreme Court's

standard of "claim of entitlement" under Board of Regents v. Roth,

408 U.S. 564, 577 (1972), to satisfy the property interest element in

a substantive due process challenge.

In the instant case, the district court determined that under our

holding in Gardner IPC possessed a property interest because it fairly

had a claim of entitlement to the sewer lines since the Town lacked

 21
all discretion to totally deny them. See Front Royal VII, 922 F. Supp.

at 1149-51. It is certainly plain that the Virginia Supreme Court determined that the 1978 Annexation Court's decree required the Town "to

perform a prospective non-discretionary act." Front Royal VI, 449

S.E.2d at 798.

However it may be that the Town lacked discretion, that IPC had

a claim of entitlement, and that the Town deprived IPC of that entitlement, it is equally plain that the Virginia Supreme Court remedied

that deprivation by affirming the trial court's issuance of a writ of

mandamus. See id. Pursuant to that writ, the sewer lines were constructed. Thus even if IPC has satisfied the first two elements of its

substantive due process claim, it cannot satisfy the third. Because the

state courts ordered the Town to construct the sewer lines, the state

courts were capable of rectifying, and did rectify, the Town's dereliction.

As in Sylvia Development, our analysis in no manner condones the

Town's actions in circumventing its legal obligations for nearly ten

years. Cf. Sylvia Dev., 48 F.3d at 829 ("Our analysis should not be

interpreted as condoning the actions of public officials who circumvent legally established criteria in their decisionmaking."). But governmental actions that are violative of state law are properly

challenged in state courts which exist, in part, to protect citizens from

abuses of state law. See id.; Love, 47 F.3d at 123. Whether the Town

illegally refused to comply with the Annexation Court's decree is not

determinative of whether federal substantive due process has been

violated. As we stated in Love:

We would trivialize the Due Process Clause to invoke it

every time the citizen defeats the state in state court. The

Clause is violated only where the state courts can do nothing

to rectify the injury that the state has already arbitrarily

inflicted.

Id. Had IPC not rushed into federal court in the first place but instead

gone to state court, as it only did after we ordered it to following our

abstention decision in Front Royal V, no doubt its sewer lines would

have been constructed much sooner. Federal court is not the automatic cure for whatever ails one.

 22
C.

The Fourteenth Amendment's Equal Protection Clause provides

that "[n]o State shall . . . deny to any person within its jurisdiction the

equal protection of the laws." U.S. Const. amend. XIV, § 1. As we

have recently stated, the Clause "limits all state action, prohibiting

any state from denying a person equal protection through the enactment, administration, or enforcement of its laws and regulations."

Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.

1995) (emphasis in original).

IPC's equal protection claim is not a challenge to any Town ordinance or regulation or even to any state law. Indeed, IPC's claim specifically rests on the validity of the 1978 Annexation Court's decree.

Instead, IPC is claiming a violation of federal constitutional law

through the Town's refusal to properly administer or comply with that

state Annexation Court order.

The Equal Protection Clause forbids both laws that expressly discriminate as to classifications that bear no appropriate relationship

between the legislative purpose and the classification adopted to

achieve that purpose and laws that are facially neutral but that are

administered or enforced discriminatorily with regard to such classifications.

In ruling on the motion for summary judgment with respect to

IPC's equal protection claim, the district court noted that the Town

officials alleged in their affidavits "that they based their decision not

to extend the sewer lines on the sort of garden-variety economic factors which courts historically conclude merit judicial deference."

Front Royal & Warren County Indus. Park Corp. v. Town of Front

Royal, Va., 708 F. Supp. 1477, 1486 (W.D. Va. 1989). The district

court ruled, however, that this reason was legally insufficient inasmuch as the extension of sewer service had been ordered by the

annexation court. See id. Discussing IPC's additional claim "that there

was a conspiracy among the defendants to provide sewerage to certain

parcels for personal benefit and to deny it to plaintiffs," the district

court evinced its correct understanding of its authority under Rule

56(c) in writing:

 23
While there is some evidence that this may have been so, the

record does not provide the basis for a finding, under Rule

56, that there was invidious discrimination by defendants

against plaintiffs because there are disputes regarding issues

of material fact which relate to defendants' motivation in

providing sewers and the effect of providing the sewer lines

to some parcels and not to others. However, it is not necessary to find uncontroverted evidence of a conspiracy by

defendants to reduce the value of plaintiffs' parcels or to

impermissibly deny to plaintiffs sewer service, for defendants themselves have not been able to identify any permissible state interest to which defendants' decision could bear

a rational relationship nor could there feasibly be any such

interest, given the strictures placed upon defendants by the

annexation orders.

Id. at 1487. This statement is not a "finding" that there was no invidious discrimination. Instead, it is a legal conclusion that although evidence concerning the existence of invidious discrimination was

conflicting, foreclosing judgment under Rule 56(c), judgment nevertheless was proper for IPC because, as a matter of law, there was no

legitimate state interest in denying sewer service. This legal conclusion by the district court, however, is unsound.

Hence, the district court erred in granting summary judgment to

IPC. It appears to be undisputed that, whether one accepts IPC's

claim that the decision not to provide sewer service to its property

was made to advance the interests of nearby property owned by the

Town or the Town officials' contention that the decision was strictly

an economic one, the different treatment of IPC's property was intentional. See, e.g., Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d

810, 819 (4th Cir. 1995) (explaining that in order"[t]o prove that a

statute has been administered or enforced discriminatorily, more must

be shown than the fact that a benefit was denied to one person while

conferred on another" and that "[a] violation is established only if the

plaintiff can prove that the state intended to discriminate"). And,

because the governmental action did not burden a fundamental right

or employ a suspect classification, the pertinent question for determining whether the governmental action violated the Equal Protection

Clause is whether the Town officials reasonably could have believed

 24
that the action was rationally related to a legitimate governmental

interest. See, e.g., Plyler v. Moore, 100 F.3d 365, 373 (4th Cir. 1996),

cert. denied, 117 S. Ct. 2460 (1997); Chambers Med. Techs. of S.C.,

Inc. v. Bryant, 52 F.3d 1252, 1262-63 (4th Cir. 1995); Smith Setzer

& Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d

1311, 1320 (4th Cir. 1994). Regardless of the actual motivation for

the decision to provide sewer service to adjacent property but not to

IPC's property, the Town officials reasonably could have believed

that the decision was rationally related to a legitimate governmental

interest. Therefore, the district court erred in granting summary judgment to IPC.

V.

For the foregoing reasons, we conclude that IPC's takings, substantive due process, and equal protection claims pursuant to the Fifth and

Fourteenth Amendments cannot be sustained. We therefore reverse

the grant of summary judgment to IPC on each of these claims and

direct the district court to dismiss them. Our disposition necessarily

reverses the award to IPC of compensatory damages and attorney's

fees. We remand this matter to the district court for whatever proceedings may remain in this now too-lengthy litigation.

REVERSED AND REMANDED

WILKINS, Circuit Judge, concurring in judgment:

I am in full agreement with the result reached by the majority--

reversal of the decision of the district court holding that the actions

of the Town of Front Royal, Virginia and several of its individual

officials effected an unconstitutional taking of property belonging to

the Front Royal and Warren County Industrial Park Corporation (IPC)

and violated the due process and equal protection guarantees of the

Fourteenth Amendment. I write separately to highlight the dictum in

the majority opinion that has resulted from the unnecessary breadth

of its discussion and its consideration of a number of matters that I

believe are irrelevant to the decision.

Section II of the majority opinion explains that we held in a prior

appeal in this litigation that abstention pursuant to Burford v. Sun Oil

 25
Co., 319 U.S. 315 (1943), was appropriate and directed the district

court to retain jurisdiction "pending the outcome of the state proceedings because they may not fully dispose of all of the federal claims."

Front Royal & Warren County Indus. Park Corp. v. Town of Front

Royal, Va., 945 F.2d 760, 765 (4th Cir. 1991). The majority also notes

that IPC subsequently obtained a ruling from the Supreme Court of

Virginia that the state trial court properly granted mandamus relief

because IPC possessed "a clear right to the" construction of sewer

lines under the 1978 annexation court order, the Town had "a legal

duty to perform the act" that IPC sought to compel, and "there [was]

no other available specific and adequate remedy." Town of Front

Royal v. Front Royal & Warren County Indus. Park Corp., 449

S.E.2d 794, 796-98 (Va. 1994) (internal quotation marks omitted).

The majority eventually reasons that in view of our prior direction

that the district court was to retain jurisdiction to consider the federal

issues if the state court did not resolve them, the determination of the

Supreme Court of Virginia that no state remedy other than mandamus

was available to IPC, and the ruling of the state court that prudential

considerations counseled against a decision on the federal issues, the

district court correctly held that it was appropriate to proceed to

resolve the federal questions. The remainder of the discussion in Section II is unnecessary to the decision and, hence, is dicta.

Next, as the majority correctly notes in Section IV, our conclusion

that none of IPC's constitutional rights were violated obviates the

need to address the question of whether the individual defendants are

entitled to qualified immunity. See DiMeglio v. Haines, 45 F.3d 790,

799 (4th Cir. 1995) (noting that a court may dispose of a case on the

ground that no constitutional violation occurred without addressing

qualified immunity). The remainder of the paragraph discussing qualified immunity is dicta.

Finally, the majority intimates that the "inchoate interest in the conferral of a benefit to enhance market value" may not give rise to an

unconstitutional taking. Slip op. at 17. Obviously, this reasoning is

unnecessary to the decision since the majority concludes that no

unconstitutional taking resulted because the "failure to install the

sewer lines did not deprive IPC's land of all economic value or even

close to that." Slip op. at 18 (emphasis omitted). Again, the balance

of the Fifth Amendment discussion must be understood to be dicta.

 26